Linstrom v. Dept. of Rev.

438 	December 5, 2023 	No. 28
IN THE OREGON TAX COURT
REGULAR DIVISION
Jerry M. LINSTROM,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant,
and
LINCOLN COUNTY ASSESSOR,
Defendant-Intervenor.
(TC 5459)
In pretrial proceedings in this property tax case, Plaintiff asked the court to
rule that the county assessor as Defendant-Intervenor must change its records
to correct alleged factual errors concerning dimensions and other attributes of
Plaintiff’s property. The court determined that alleged factual differences rele-
vant to value must be decided at trial. The court further concluded that Plaintiff
did not have standing to request changes to records except to the extent that the
accuracy of the records is relevant to value. The court also found that Plaintiff
must comply with the court’s rules for seeking discovery before filing a motion to
compel discovery. Finally, the court deferred action on Defendant-Intervenor’s
request for attorney fees and damages.
Submitted on Plaintiff’s pretrial motions.
Jerry M. Linstrom filed the motions for Plaintiff pro se.
Brian J. Gardner, Lincoln County Counsel, Newport,
filed responses for Defendant-Intervenor Lincoln County
Assessor.
Decision rendered December 5, 2023.
ROBERT T. MANICKE, Judge.
In this property tax case, Plaintiff appeals the real
market value (RMV) for tax year 2021-22 of a parcel of prop-
erty on the Siletz River in Lincoln County (the property).
Plaintiff seeks an RMV of $49,000. Defendant-Intervenor
(the county) asks the court to sustain the RMV of $102,500

Cite as 25 OTR 438 (2023) 	439
as determined by the magistrate.1 Trial is set for the week
of March 4, 2024. This order addresses:
A. 	Plaintiff’s filings dated August 15, 2023, through
October 16, 2023, and the county’s response dated October
30, 2023;
B. 	Plaintiff’s discovery-related filings dated November
13, 	2023, 	through 	November 	16, 	2023, 	the 	county’s
responses dated November 21, 2023, and Plaintiff’s replies
dated December 1, 2023, through December 3, 2023; and
C. 	The county’s requests for attorney fees and for dam-
ages under ORS 305.437.
A. 	Plaintiff’s August-October 2023, Filings
Plaintiff filed 21 documents with the court between
August 15 and October 16, 2023. None complies with Regular
Division rules. None has a caption, each has the same
title (“Certificate of Service”) and none clearly expresses a
motion, or a purpose or intention. At the case management
conference on October 25, 2023, the court determined that
all of these filings reduce to motions by Plaintiff that ask
the court to rule as follows:
(1) 	The size of the walkway, ramp, and dock on the
property is 742 square feet instead of 1,321 square feet,
due to “downsizing” that occurred in June 2020;
(2) 	The property class code of the property is not 401,
but instead is 01 or 001;
(3) 	The land size of the property is not 5,028 square
feet, but instead is 3,750 square feet;
(4) 	The property is not “residential,” but instead is
“riverfront” property; and
(5) 	The property is “septic-denied, non/unbuildable.”
After determining the content of Plaintiff’s motions at the
case management conference, the court directed the county
to respond to them. The county’s response, filed October 29,
2023, considers possible alternative readings of the motions
and argues separately as to each reading.
1 Defendant Department of Revenue has “tender[ed] the defense” of the
assessment to the county.

440 	Linstrom v. Dept. of Rev.
1. 	Plaintiff’s Motions as Requests for Factual Rulings
Reading Plaintiff’s motions as requests that the
court determine factual issues, for example by summary
judgment under Tax Court Rule (TCR) 47, the county argues
that the motions are deficient because they fail to show that
there is no genuine issue of material fact, and they lack any
argument that Plaintiff is entitled to prevail as a matter
of law. As to the facts asserted in the motions, the county
states that it either disagrees or finds them irrelevant to
determining the property’s RMV.
Plaintiff argues that the county must determine
these facts before trial because “how can my appraiser pres-
ent to [the court] a true appraisal when the information [on
the county’s records] is not [corrected].” To the extent that
Plaintiff argues that he cannot prepare for trial unless the
county agrees with the facts above, Plaintiff’s argument is
incorrect. Of course, it is in the best interest of all concerned
that the parties seek to agree before trial on as many rele-
vant facts as possible. However, when parties cannot agree
on relevant facts, or when they cannot agree which facts are
relevant, the court must decide those issues based on the
evidence at trial.
The court agrees with the county. Viewing Plaintiff’s
August through October 2023 motions as motions for sum-
mary judgment or partial summary judgment, the court
now denies them and will decide the issues, to the extent
relevant, at trial.
2. 	Plaintiff’s Motions as Motions to Compel the County
to Change its Records
The county addresses an alternative reading of
Plaintiff’s August to October 2023 motions as motions to
compel the county to change its public records that describe
characteristics of the property other than value, such as the
square footage of the land or improvements, traits such as
“unbuildable” or “residential,” or the classification number
used for trending purposes. The county argues that Plaintiff
has failed to show whether or how the property’s value
would change if the county were to make these changes
to its records. According to the county, only changes to the

Cite as 25 OTR 438 (2023) 	441
county’s records that could cause a change in property value
are relevant, and trial is necessary to determine whether,
or to what extent, any allegedly erroneous records affect the
property’s value.
At the October 25, 2023, case management confer-
ence, Plaintiff stated that determining the correct value of
the property is only “part” of his goal for his appeal. He indi-
cated that the other part of his goal is to compel the county to
“correct [the] information” identified in his motions.2 These
statements suggest that Plaintiff fundamentally misunder-
stands what he can ask the court to do in this case. To file
a lawsuit in this court, a taxpayer must be “aggrieved” by
an action or omission of an assessor or other taxing author-
ity, and the action or omission must “affect” the taxpayer’s
property. ORS 305.275(1). The Oregon Supreme Court has
held that these requirements mean that a taxpayer must
be “more than just dissatisfied” by the action or omission.
NW Medical Lab. V. Good Samaritan Hospital, 309 Or 262,
268, 786 P2d 718 (1990). The taxpayer must show a “pecu-
niary harm,” which typically means showing that “property
tax bills * * * were improperly inflated.” Seneca Sustainable
Energy, LLC v. Dept. of Rev, 363 Or 782, 797-98, 429 P3d
360 (2018).
The issue in this case is the value of the property, not
the state of the county’s records. An assessor has many stat-
utory duties, including recordkeeping responsibilities, but
under the case law a taxpayer does not necessarily have the
right to sue in this court over every alleged recordkeeping
2 Similarly, Plaintiff states, in two of his October 10, 2023, filings: “I’m ask-
ing, Judge Maneki [sic]: Motion to enforce/rule on: Richard Davis Magistrate:
Court Order: Dated 08/24/2022.” The county interprets these portions of
Plaintiff’s filings as a motion that this division of the court enforce an order of
the Magistrate Division entitled “Order on Plaintiff’s Motion for Defendant to
Correct Tax Record Information,” in which the magistrate directed the county to
respond to Plaintiff’s requests to change data on the tax roll. The county, noting
that it promptly responded to the magistrate’s order, objects that this division
lacks jurisdiction to enforce the magistrate’s order. The court agrees with the
county and takes the opportunity to remind Plaintiff that the proceedings in
this division are a new trial of the value of the property. The Magistrate Division
proceedings are finished; this division will not order enforcement of the magis-
trate’s order. See ORS 305.425(1) (“All proceedings before the judge of the tax
court shall be original, independent proceedings and shall be tried without a
jury and de novo.”); Tax Court Rule (TCR) Preface (“Regular Division trials are
de novo and are conducted without a jury.”).

442 	Linstrom v. Dept. of Rev.
failure. In this case, the court will not consider ordering
the county to change data in its records unless Plaintiff
proves two things: first, that the county’s data are wrong
and Plaintiff’s alternative data are correct; and second,
that changing those specific data on the roll (as opposed to
changing the overall value) is necessary to redress a pecuni-
ary harm to Plaintiff’s property. Plaintiff has done neither
of these things. The court now denies Plaintiff’s August to
October motions to the extent that they ask the county to
change its records.
B. 	Plaintiff’s 	November 	13-16, 	2023, 	Discovery-Related
Filings
On November 13, 2023, Plaintiff filed two documents
entitled “Discovery Information Requested for Up Coming
Trial.” Each begins: “Plaintiff is requestion the ‘Missing
Information’ from the Lincoln County Tax Assessor’s Office,
(the defendant), used in Magistrate Court Case TC-MD
220086R, Comparable Sale Sheet, Exhibit H2.” There fol-
low additional lines with blanks for the “value” and “size” of
various listed items. On the same day, Plaintiff filed a third
document, entitled “Court Order Motion: For Discovery
of Information for Up Coming Trial.” This document also
bears the heading “ ‘Corrected Document.’ ” It lists some of
the same items as in one of the two earlier documents, but
it is not identical with either and does not identify the docu-
ment or documents it is supposed to correct.
On November 15, 2023, Plaintiff filed another “Court
Order Motion: For Discovery of Information for Up Coming
Trial.” It “request[s] the information from the 2016 Tax Year,”
and it proceeds to list various items with requests for size
and/or value. 3 On November 16, 2023, Plaintiff filed similar
documents with the same title requesting similar informa-
tion for the 2017, 2018, 2019, 2020, and 2021 tax years.
On November 21, 2023, the county filed a response
to Plaintiff’s three filings dated November 13, 2023, treating
the November 13 “Corrected Document” as a replacement for
the first two. On November 21 and 22, 2023, the county filed
3 On November 16, 2023, Plaintiff filed a similar document under the same
title, also for tax year 2016, with the handwritten notation: “Corrected Copy.”

Cite as 25 OTR 438 (2023) 	443
a response to each of the other “Court Order Motions.” On
December 1, 2, and 3, 2023, Plaintiff filed replies, each enti-
tled “Plaintiff’s Answer to Intervenor’s Response of ‘Court
Order Motion: For Discovery of Information for Upcoming
Trial.’ ”
In all of its responses, the county treats Plaintiff’s
filings as motions to compel discovery under TCR 46 and
asks the court to deny them because (1) Plaintiff failed to
first serve a discovery request in a manner that complies
with TCR 36; (2) Plaintiff failed to certify that he had com-
plied with the requirement in TCR 41 C to make a good-faith
effort to confer with the county; and (3) the motions violate
various other procedural requirements under TCR 9 and 14.
The court agrees with the county’s interpretation
of these filings as motions to compel discovery. Plaintiff
appears to understand the difference between asking an
opposing party for discovery under TCR 36 and asking the
court to order that party to provide discovery under TCR
46. The first two filings, on November 13, 2023, appear to be
discovery inquiries under TCR 36, but Plaintiff’s “Corrected
Document” adds “Court Order Motion” to the title.
The court also agrees with the county’s objections.
The court orders as follows:
(1) 	Plaintiff must request any discovery directly from
the county before involving the court. Plaintiff must do
so in a manner that substantially complies with TCR 36.
Plaintiff must not file discovery requests with the court.
(2) 	If Plaintiff files a motion to compel discovery in the
future, Plaintiff must include the certification required in
TCR 14 C.
(3) 	Any future motions and filings by Plaintiff must
substantially comply with the court’s rules. However, as
an exception, no party need include a form of order with a
motion unless specifically directed by the court to do so.
C. 	County’s Requests for Attorney Fees and Damages Under
ORS 305.437
The county argues that several of the deficiencies
in both sets of Plaintiff’s filings support a claim for attorney

444 	Linstrom v. Dept. of Rev.
fees and recovery of expenses for the time and costs to
respond. The county correctly points out that attorney fees
and awards of damages are available when a taxpayer
asserts an objectively unreasonable position or files certain
motions without substantial justification. See, e.g., ORS
305.437 (permitting court to award damages to the depart-
ment for frivolous or groundless proceedings); TCR 46 A(4)
(allowing court to award costs for motions to compel discov-
ery). The award of attorney fees and statutory damages is
intended to deter conduct that is unfair or wastes time, or
both. The court is not presently inclined to grant an award
of attorney fees or damages in connection with Plaintiff’s
filings described in this order, particularly if Plaintiff in
future substantially complies with this order and with the
court’s rules. The court will defer action on attorney fees
and damages and will consider that subject in the context of
future steps in the case. Now, therefore,
IT IS SO ORDERED.