Date: 01-22-2015

Case Style: State ex rel Mel Stewart v. City of Salem

Case Number: A151153

Judge: Haselton

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: John W. Shonkwiler argued the cause for appellant. On
the briefs was William F. Hoelscher.

Defendant's Attorney: Kenneth S. Montoya argued the cause for respondent. On
the brief was Daniel B. Atchison, Assistant City Attorney.

Description: This matter is before us for a second time. See State
ex rel Stewart v. City of Salem, 241 Or App 528, 251 P3d
783 (2011) (Stewart I). Relator, in a mandamus proceeding,
appeals from a judgment that, in pertinent part, denied his
request for attorney fees incurred in ultimately, successfully
obtaining a peremptory writ. ORS 34.210(2). We affirm.1
As recounted in Stewart I, 241 Or App at 531-32,
this litigation arose from defendant City of Salem’s (the city)
failure to take “final action” on relator’s partition application
“within 120 days after the application is deemed complete.”
ORS 227.178(1).
Relator filed his partition application in October
2008. In response, the city sent relator a letter asking him
to provide certain missing information. Relator replied by
providing some of the requested information, stating that no
other information would be forthcoming and declaring that
the city should consider his application “complete.” The city
received that letter on December 2, 2008. On December 4,
2008, relator sent the city a second, alternative partition
plan. The city responded by telling relator that it could not
process both plans at the same time and asking which of the
two plans relator would like the city to consider; the city also
informed relator that it would proceed to consider the original
proposal if he did not respond in writing by December 11.
In a December 8 voicemail, relator told the city to proceed
on the original proposal. The city’s planning division subsequently
approved the proposal, but that decision was overturned
by a March 30, 2009, city council vote.
Despite the vote denying the application, the city
had not issued a final written decision memorializing that
decision as of April 1. On April 2, relator petitioned the trial
court for an alternative writ of mandamus that would direct
1 In a separate appeal that was consolidated for oral argument—which also
arises from the same protracted litigation between relator and defendant City of
Salem—relator appeals from a judgment dismissing, by way of summary judgment,
his action to recover damages based on the city’s alleged filing of a “false
return,” ORS 34.210(1), in the predicate mandamus proceeding. State ex rel
Stewart v. City of Salem (A153321), 268 Or App 717, ___ P3d ___ (2015).
Cite as 268 Or App 491 (2015) 493
the city to approve his application pursuant to ORS 227.179,
which provides, in part:
“Except when an applicant requests an extension * * *,
if the governing body of a city or its designee does not take
final action on an application for a permit, limited land use
decision or zone change within 120 days after the application
is deemed complete, the applicant may file a petition
for a writ of mandamus under ORS 34.130 in the circuit
court of the county where the application was submitted
to compel the governing body or its designee to issue the
approval.”
Relator asserted that the 120-day deadline for the city
to take a “final action” had passed because, under ORS
227.178(2),2 his application was “deemed complete” for purposes
of ORS 227.178(1) and ORS 227.179 when the city
received his December 2, 2008, response to its request for
more information and that his subsequent submission and
retraction of an alternative proposal had no effect on the
120-day clock. On April 2, 2009, the trial court ordered the
court clerk to issue the alternative writ, which directed the
city to either grant relator’s application or to show cause to
the court for not doing so. On April 6, 2009—125 days from
December 2, 2008—the city issued a final written order
denying the application. Stewart I, 241 Or App at 532.
In May 2009, the city responded to the writ by filing
a “Motion to Dismiss Order for Writ of Mandamus and
Motion to Dismiss Petition for Writ of Mandamus.” That
motion was predicated on the city’s contention that “[t]he
120 day state mandated deadline for the challenged decision
had not expired when the order was issued.” In the city’s
2 ORS 227.178(2) specifies when an application is “deemed complete”:
“If an application for a permit, limited land use decision or zone change
is incomplete, the governing body or its designee shall notify the applicant in
writing of exactly what information is missing within 30 days of receipt of the
application and allow the applicant to submit the missing information. The
application shall be deemed complete for the purpose of subsection (1) of this
section upon receipt by the governing body or its designee of:
“(a) All of the missing information;
“(b) Some of the missing information and written notice from the applicant
that no other information will be provided; or
“(c) Written notice from the applicant that none of the missing information
will be provided.”
494 State ex rel Stewart v. City of Salem
view, the 120-day time limit had not expired at the time that
relator petitioned for the writ—and would not do so until at
least April 7, 2009 (i.e., 120 days from the date that relator
had told the city to proceed with his original proposal and to
disregard the second one). Thus, the city asserted, relator’s
petition had been filed prematurely and should be dismissed.
The trial court agreed with the city and dismissed both the
mandamus petition and the writ for the reason urged by the
city. Id. at 532-33.
Relator appealed that dismissal and, in Stewart I,
we reversed and remanded. Our disposition turned on when
relator’s application was deemed complete within the meaning
of ORS 227.182(2). After analyzing the relevant statutes,
we concluded that relator was correct:
“[R]elator submitted an application for a partition in
October 2008, after which the city, pursuant to ORS
227.178(2), informed him that additional information was
needed. On December 2, 2008, the city received a letter
from relator that included the information required to deem
his application complete under ORS 227.178(2)(b), including
a written request by relator that the city ‘consider my
application complete by operation of law.’ Relator did not,
at any time, request an extension of the 120-day deadline
pursuant to ORS 227.178(5). Relator’s voicemail response
to the city’s December 4 letter clarified that he wished to
proceed with his first proposed plan, which already had a
‘deemed complete’ date of December 2. Relator’s application
was thus complete on December 2, setting the 120-
day deadline for April 1, 2009. Because the city had not
yet taken final action on relator’s application by April 1,
relator’s mandamus petition was properly filed pursuant to
ORS 227.179(1). The trial court erred in dismissing relator’s
petition for writ of mandamus.”
Stewart I, 241 Or App at 535-36.
Accordingly, we reversed the judgment dismissing
the petition and remanded the case for the trial court to
issue the writ. After our opinion in Stewart I issued, relator
petitioned for an award of his appellate attorney fees, which
we granted without amplification.
Following our remand, the city asserted, as an
affirmative defense, that approval of relator’s application
Cite as 268 Or App 491 (2015) 495
would result in a substantive violation of the Salem City
Code and that the writ should not issue for that reason.
The parties also sparred over which conditions of approval
should be specified in the peremptory writ. See ORS
227.179(5) (“The court shall issue a peremptory writ unless
the governing body * * * shows that the approval would
violate a substantive provision of the local comprehensive
plan or land use regulations * * *. The writ may specify conditions
of approval that would otherwise be allowed by the
local comprehensive plan or land use regulations.”). The
trial court ultimately issued a peremptory writ directing
the city to approve relator’s partition plan, subject to certain
conditions.
In that context, relator moved in the trial court for
an award of attorney fees incurred in litigating the issuance
of the peremptory writ and the conditions that would attach
thereto. Relator invoked ORS 34.210(2), which authorizes
a prevailing party in a mandamus proceeding to recover
attorney fees under certain conditions.
The trial court, without expressly designating a
prevailing party, awarded relator all of his requested costs,
with the exception of expert witness fees, but denied relator’s
request for attorney fees. In so ruling, the trial court
explained that both parties “had legitimate issues to present
and professionally presented them” and that there was
an absence of “groundless * * * inappropriate or invalid
arguments” during the litigation—and, indeed, found that
“all the lawyers involved in this case in front of me [were]
responsive, professional, and did an excellent job,” “did try to
resolve this, * * * were diligent and reasonable in their activities
in this courtroom,” and “were helpful in reducing some
of the issues for hearing.” The trial court further observed
that, although the city ultimately lost on appeal, it had prevailed
before the circuit court, and the dispute involved a
good faith disagreement over an issue that had not been litigated
previously and was not directly addressed in the statutory
scheme. Thus, the court “certainly didn’t see any basis
* * * [to find that the city] was reckless or willful,” nor was
there any evidence of a pattern of inappropriate, reckless, or
illegal conduct.
496 State ex rel Stewart v. City of Salem
The trial court subsequently entered an order that
expressly adopted the city’s arguments in its opposition to
the fee petition and determined that (1) “the conduct of [the
city] that gave rise to the litigation was not reckless, willful,
illegal or in bad faith,” (2) the city’s conduct during the litigation
was “objectively reasonable and diligent,” and (3) the
city’s claims and defenses were “objectively reasonable, valid
and appropriate.”
On appeal, relator contends that the trial court
erred in denying his request for attorney fees pursuant to
ORS 34.210(2). That statute provides, in part:
“The court in its discretion may designate a prevailing
party and award attorney fees, costs and disbursements to
the prevailing party * * *. Attorney fees, costs and disbursements
may only be awarded against adverse parties who
have been served with the petition and writ.”3
(Emphasis added.)
As we understand it, relator advances three overarching
challenges to the denial of fees:4 (1) The trial court
was obligated to designate relator as the “prevailing party”
and its failure to do so impermissibly skewed its determination
not to award attorney fees; (2) our disposition of the
petition for appellate attorney fees in Stewart I precluded
the trial court from denying entitlement to fees incurred
in the proceedings before that court; and (3) the trial court
erroneously construed and applied various factors under
ORS 20.075 in denying fees, and those alleged errors
3 As noted, this matter was brought pursuant to ORS 227.179, which directs
that a permit applicant may file a “petition for a writ of mandamus under ORS
34.130,” a statute that is part of the general mandamus scheme in ORS chapter
34. In State ex rel Aspen Group v. Washington County, 150 Or App 371, 946 P2d
347 (1997), rev den, 327 Or 82 (1998), we stated that the attorney fee provision of
ORS 34.210(2) applies in the context of a statutory mandamus action under former
ORS 215.428(7)(b) (1999), which imposed a 120-day time frame for counties
to act and is substantively indistinguishable from the mandamus provisions of
ORS 227.179.
4 Relator also originally assigned error to the trial court’s denial of his motion
to file his “false return” claim (which is the subject of the companion Stewart
case and appeal) in the mandamus action and to “bifurcate” that claim from the
mandamus proceeding. Relator subsequently, and correctly, acknowledged that
the fact that he eventually brought and litigated his “false return” claim in a
separate action rendered that assignment of error moot.
Cite as 268 Or App 491 (2015) 497
compel reversal (with a concomitant award of attorney
fees to relator) or, at the very least, a remand for the trial
court to reconsider and reexercise its discretion. For the
reasons that follow, we reject relator’s first two contentions
and, while agreeing with relator as to one aspect of the
third contention, conclude that affirmance, not remand, is
warranted.
Relator’s first challenge is unavailing, both factually
and legally. As a factual matter, although the trial court
was not obligated under ORS 34.210(2) to designate a prevailing
party (“The court in its discretion may designate a
prevailing party * * *.” (Emphasis added.)), it is evident that,
in substance, it so characterized relator. Specifically—in
the same order in which it denied relator’s fee petition—the
court awarded relator’s requested costs, with the exception
of expert witness fees. Further, as a legal matter, “prevailing
party” status under ORS 34.210(2) does not trigger a
categorical entitlement to attorney fees. Rather, while the
statutory text explicitly makes “prevailing party” status a
prerequisite to any recovery of attorney fees, fee entitlement
is permissive, predicated on the trial court’s exercise of discretion.
See, e.g., State ex rel Pend-Air v. City of Pendleton,
145 Or App 236, 246-51, 929 P2d 1044 (1996), rev den, 325
Or 45 (1997).
Relator’s second challenge, pertaining to the purported
(collaterally) preclusive effect of our award of appellate
attorney fees in Stewart I, is similarly unavailing in
that it fails to appreciate that our determination and the
trial court’s determination here involved two circumstantially
distinct exercises of discretion. Most significantly, in
Stewart I, our consideration was circumscribed by circumstances
relating to the successful prosecution of the appeal,
but here the trial court’s consideration properly encompassed
the entirety of the litigation, including post-remand circumstances.
We note further that, to the extent that there was,
necessarily, some circumstantial overlap between our consideration
and the trial court’s, the former is not innately
conclusive of the latter. Except at its “matter of law” limits,
“discretion” embodies a range of permissible outcomes, so
that, even in identical circumstances, different tribunals
498 State ex rel Stewart v. City of Salem
can, properly, reach different results.5 See State ex rel Pend-
Air, 145 Or App at 251 (“[T]he court could properly have
either allowed or denied fees.”).
We turn, finally, to relator’s contention that the trial
court’s denial of attorney fees was based on an erroneous
understanding or application of various factors specified in
ORS 20.075(1). We reject without published discussion each
of those challenges except for the three addressed immediately
below.
ORS 20.075(1) provides:
“A court shall consider the following factors in determining
whether to award attorney fees in any case in which
an award of attorney fees is authorized by statute and in
which the court has discretion to decide whether to award
attorney fees:
“(a) The conduct of the parties in the transactions or
occurrences that gave rise to the litigation, including any
conduct of a party that was reckless, willful, malicious, in
bad faith or illegal.
“(b) The objective reasonableness of the claims and
defenses asserted by the parties.
“(c) The extent to which an award of an attorney fee
in the case would deter others from asserting good faith
claims or defenses in similar cases.
“(d) The extent to which an award of an attorney fee in
the case would deter others from asserting meritless claims
and defenses.
“(e) The objective reasonableness of the parties and
the diligence of the parties and their attorneys during the
proceedings.
“(f) The objective reasonableness of the parties and
the diligence of the parties in pursuing settlement of the
dispute.
5 Even where a discretionary award of fees is at issue, there may be instances
where there is only one permissible legal outcome. See State ex rel Aspen Group v.
Washington County, 166 Or App 217, 227, 996 P2d 1032 (2000) (“[T]he only legally
permissible exercise of discretion was, and is, to deny fees.” (Haselton, J., concurring)).
Nothing in our order in Stewart I awarding relator his appellate attorney
fees suggested that this was such a case.
Cite as 268 Or App 491 (2015) 499
“(g) The amount that the court has awarded as a prevailing
party fee under ORS 20.190.
“(h) Such other factors as the court may consider
appropriate under the circumstances of the case.”6
(Emphasis added.)
Relator challenges the trial court’s determinations
with respect to ORS 20.075(1)(a), (b), and (e). To aid cogent
analysis, we address the latter two challenges first and then,
finally, address the trial court’s application of ORS 20.075(1)(a).
Relator asserts that the trial court erred in determining,
for purposes of ORS 20.075(1)(b), that the city’s
“claims and defenses were objectively reasonable, valid and
appropriate.” In that regard, relator asserts that the city’s
legal position in Stewart I—that the 120-day rule had not
yet expired at the time that relator filed for mandamus—
was objectively unreasonable. The determination of whether
a claim or defense is “objectively reasonable” is a matter of
law. See Mantia v. Hanson, 190 Or App 412, 430, 79 P3d 404
(2003) (reviewing award of attorney fees pursuant to ORS
20.105); Secor Investments, LLC v. Anderegg, 188 Or App
154, 175, 71 P3d 538, rev den, 336 Or 146 (2003). In State
ex rel Pend-Air, in reviewing a denial of attorney fees under
ORS 34.210(2), we reiterated the controlling standard:
“ ‘An interpretation will be deemed “reasonable” even
though it is wrong if the interpretation has some basis in
the language or the legislative history of the statute, or if
the interpretation is consistent with some stated purpose of
the scheme of which the statute is a part. When we reverse
and remand in such a case because we have concluded that
a different interpretation is the correct one, an award of
an attorney fee will serve neither of the purposes we have
ascribed to ORS 183.495. A fee award will not deter similar
actions in the future, because reasonable misinterpretations
are mistakes made in good faith rather than reckless
or intentional decisions to adopt erroneous constructions.
There is also less of a “fairness” justification for attorney
fees in such cases.’ ”
6 “[A]wards under ORS 34.210 are subject to the general guidelines for discretionary
statutory attorney fees set forth in ORS 20.075.” State ex rel Coastal
Management v. Washington Cty., 159 Or App 533, 543, 979 P2d 300 (1999).
500 State ex rel Stewart v. City of Salem
145 Or App at 249-50 (quoting Van Gordon v. Ore. Board of
Dental Examiners, 63 Or App 561, 568, 666 P2d 276 (1983))
(brackets in Pend-Air omitted).
Relator urges that our opinion in Stewart I necessarily
established that the city’s legal position regarding the
timeliness of the mandamus petition was “unreasonable.”
We disagree.
It is true, as relator observes, that our opinion in
Stewart I was unambivalent in its reasoning and holding.
It is also true that, not infrequently, after having wrestled
with close and difficult legal questions, we express the
result confidently and unambiguously. Stewart I was such a
case.
The circumstances in Stewart I relating to the
application of the 120-day period were idiosyncratic. Indeed,
we noted that “ORS 227.178 does not contemplate situations
where, as here, the applicant takes an action after the application
is ‘deemed complete’ that leaves the city in a position
in which it is uncertain how to proceed[.]” 241 Or App
at 535. Thus, the peculiar facts of the case presented an
issue of first impression, one on which the trial court—not
unreasonably—reached a different conclusion. Accord State
ex rel Pend-Air, 145 Or App at 250-51 (“Relators prevailed,
then, not because defendants’ failure to act was grounded in
an unreasonable interpretation of the law, but because the
trial court resolved an extremely close issue of first impression
in their favor.” (Footnote omitted.)). Contrary to relator’s
suggestion, the ultimate legality of an action and the
reasonableness of arguments advanced as to the legality of
that action are not coterminous. The trial court did not err
in concluding that the city’s legal position in Stewart I was
reasonable for purposes of ORS 20.075(1)(b).7
7 We note, parenthetically, that, in asserting that it had six more days within
which to take “final action” on relator’s application, the city was not engaged in
an effort to thwart the purpose of the 120-day rule in any meaningful way. See
State ex rel Compass Corp. v. City of Lake Oswego, 319 Or 357, 541-42, 878 P2d
403 (1994) (stating that the “evident” policy behind the 120-day rule is to provide
an “incentive for timely governmental action”). Before even April 1, 2009, the
date that we determined marked the end of the 120-day window, the city council
had rejected relator’s application in a public forum; all that remained was to
reduce that decision to the form of a “final action,” an act that the city acknowledged
would have to be completed by April 7.
Cite as 268 Or App 491 (2015) 501
Relator also contests the trial court’s determination,
by reference to ORS 20.075(1)(e), that the city’s conduct
“during the litigation was objectively reasonable, valid and
appropriate.” Relator contends that the answer that the city
filed to the writ petition following our remand in Stewart I
contradicts that determination. Again, we disagree.
ORS 227.179(5) provides:
“The court shall issue a peremptory writ unless the
governing body or any intervenor shows that the approval
would violate a substantive provision of the local comprehensive
plan or land use regulations as those terms are
defined in ORS 197.015. The writ may specify conditions
of approval that would otherwise be allowed by the local
comprehensive plan or land use regulations.”
Pursuant to that statute, the city was entitled, on remand, to
attempt to show that approval “would violate a substantive
provision of the local comprehensive plan or land use regulations”
and to urge that certain “conditions of approval”
should issue as part of the writ. See State ex rel Compass
Corp. v. City of Lake Oswego, 319 Or 537, 541, 878 P2d 403
(1994) (“If a governing body fails to take final action on an
application within the required 120 days, the applicant is
entitled to obtain an order compelling approval, subject to
defenses that the governing body must establish.” (Emphasis
added.)).
Following Stewart I, the city filed an answer to the
writ in which it argued that approving relator’s application
would result in a violation of its land-use regulations. That
contention hinged, in part, on the city’s assertion, also contained
in its answer, that relator’s southern property line
was the “rear lot line” of his property within the meaning
of a certain city code provision; relator argued that the
western property line was the “rear lot line.” The parties
also differed over several proposed conditions of approval,
although they were eventually able to come to agreement
Relator was, of course, entitled to the mandamus remedy afforded by statute.
Nevertheless, in considering whether he should be awarded attorney fees in
pursuing that action, the trial court could—and did—validly consider the city’s
argument that, consistently with the purpose of the 120-day rule, relator was not
left in any state of suspense over the fate of his application.
502 State ex rel Stewart v. City of Salem
on all of those except for the rear-lot-line issue.8 The trial
court heard witness testimony and received exhibits for the
purpose of resolving that issue. The court issued a letter
opinion concluding that, as a matter of interpretation of the
city code as applied to the property, relator was correct that
the western property line—and not the southern property
line—was the rear lot line.
Given those circumstances, relator asserts that
the city’s conduct during the proceedings following our
remand was not objectively “reasonable” for purposes of
ORS 20.075(1)(e) and that the trial court could not legally
conclude otherwise. Specifically, relator contends that the
city’s assertion in its answer that the southern property line
was the “rear lot line” has, by virtue of the trial court’s subsequent
letter opinion, been revealed as a false statement
of fact, and that the city acted unreasonably when it filed a
false statement of fact.
We reject relator’s challenge for either of two independently
sufficient reasons. First, relator again proceeds
from the false premise that judicial resolution of a contested
issue necessarily renders the nonprevailing party’s advocacy
categorically “unreasonable.” To the contrary, as the
trial court observed, “as I see this, I think that * * * both
parties presented legitimate issues to interpret what is a
rear lot line in a nonrectangular lot with a disagreement
by two parties, and both parties had, I believe, objectively
reasonable arguments there.” Second, relator’s focus on the
“rear lot line” identification matter fails to appreciate that
the trial court’s consideration properly embraced the totality
of the circumstances of the litigation, including the parties’
resolution of nine other conditions of approval on which the
writ issued. See 268 Or App at 501-02.
We address, finally, relator’s challenge to the trial
court’s conclusion regarding ORS 20.075(1)(a), viz., that “the
conduct of [the] defendant that gave rise to the litigation
was not reckless, willful, illegal or in bad faith.” (Emphasis
added.) Relator asserts that, given our holding in Stewart I,
8 Although the details are not of particular concern in this appeal, the rearlot-
line issue was apparently relevant to whether relator could erect buildings
that did not comply with potentially applicable setback requirements.
Cite as 268 Or App 491 (2015) 503
the city had violated the 120-day rule by failing to take
timely final action on relator’s permit application and that
conduct was per se “illegal” within the meaning of ORS
20.075(1)(a)—and that the trial court erred in stating otherwise.
See State ex rel Aspen Group v. Washington County,
150 Or App 371, 379, 946 P2d 347 (1997), rev den, 327 Or
82 (1998) (stating, in a case where a county had failed to
act on a relator’s proposal for a subdivision plan within the
statutory time frame, “the county’s * * * conduct was—in
[ORS 20.075(1)(a)’s] word—‘illegal’ ”). The city does not dispute
that the trial court so erred, but contends, nevertheless,
that, in the totality of the circumstances on this record,
remand is unwarranted. We agree.
We emphasize at the outset that “vacated and
remanded for reconsideration” is the strongly presumptive
disposition when a trial court has misconstrued or misapplied
one or more considerations bearing on the exercise of
discretion. See, e.g., Mantia, 190 Or App at 431 (remanding
for reconsideration of discretionary award of prevailing
party fee under ORS 20.190, where “the trial court exercised
its discretion * * * based, in part, on a criterion that we
have now determined was inapposite”); see also Shumake v.
Foshee, 197 Or App 255, 261, 105 P3d 919 (2005) (“If * * * we
determine that the court erred in arriving at one or more
of its subsidiary legal conclusions or factual findings, we
ordinarily will say so and then remand for reconsideration.”
(Emphasis added.)).
However, that course is (again) presumptive, not
absolute:9 The choice of disposition can, properly, be informed
by prudential considerations, including comity with trial
courts and conservation of judicial resources. Those considerations
are implicated (as we have held in other, analogous
contexts) when, assessing the trial court’s error in the
totality of “the trial court’s findings and articulated reasoning,”
“[w]e are convinced * * * that the trial court’s ultimate
determination would not change were we to remand.”
Kleinsasser and Lopes, 265 Or App 195, 211-12, 333 P3d 1239
9 E.g., Shumake, 197 Or App at 262 (noting that a remand would be inappropriate
where, “on the facts of a particular case, our ruling means that there is
only one legally permissible decision”).
504 State ex rel Stewart v. City of Salem
(2014).10 That is, we will not rotely or whimsically elevate
dispositional form over practical substance.
This is such a case. As described in detail above,
268 Or App at 495-96, the trial court, in declining to award
attorney fees, determined that myriad considerations militated
against such an award. Further, notwithstanding
its misdenomination of the city’s predicate conduct, it is
manifest that the trial court was fully aware of the essential
character of that conduct and, specifically, that the
conduct violated ORS 227.178(1). Given the totality of the
circumstances—that is, “the trial court’s findings and
articulated reasoning,” Kleinsasser, 265 Or App at 212—a
remand for reconsideration in this case, extending already
protracted litigation, would serve no purpose.11

* * *

10 Cf. Asato v. Dunn, 206 Or App 753, 760, 138 P3d 914 (2006) (declining to
remand for reconsideration, notwithstanding that one finding by the trial court
was unsupported by any evidence; given that the trial court’s “ ‘primary’ ” and
“ ‘controlling’ ” factor was unchallenged, “the outcome on remand would be no
different”).
11 We reject all other contentions by relator not explicitly addressed in this
opinion.

Outcome: Affirmed.

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