Date: 06-01-2017

Case Style:

Case Number: A158261

Judge: Dehoog

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

Plaintiff's Attorney: Conrad Yunker and Gary Parks

Defendant's Attorney: Andrew C. DeWeese

Description: In this wage-claim case, defendant appeals the
trial court’s award of attorney fees under ORS 652.200(2)
and ORS 652.615. Plaintiff was a commercial truck driver
who sued defendant, his former employer, for failing to pay
wages that it owed plaintiff, and for withholding a small
sum from his paycheck, albeit with his consent. The trial
court transferred plaintiff’s case to court-annexed arbitration,
and the arbitrator found for plaintiff in small part on
his unpaid wage claim, as well as on his unlawful withholding
claim. Based on that limited success, the arbitrator
awarded plaintiff attorney fees in the amount of $16,866.00.
Defendant did not challenge the arbitrator’s substantive
rulings, but did file exceptions to the attorney fee award
with the trial court, as authorized by ORS 36.425(6) (allowing
for review limited to the amount of an arbitrator’s attorney
fee award or the legal grounds for granting or denying
an award).
The trial court upheld the arbitrator’s fee award,
concluding that the arbitrator had not abused his discretion.
Defendant now appeals the resulting judgment and contends
that the trial court erred for six distinct reasons. We discuss
the merits of only two of defendant’s arguments—his third
and fourth—ultimately rejecting defendant’s contention
that plaintiff was not entitled to attorney fees on the unpaid
wage claim because his attorney “unreasonably failed to
give written notice” of those claims prior to filing the action,
ORS 652.200(2), but agreeing with defendant that the arbitrator
abused his discretion in awarding plaintiff attorney
fees on his unlawful withholding claim. See ORS 652.615.
As for the remaining contentions, we discuss defendant’s
first argument, that the trial court improperly reviewed the
arbitrator’s decision for an abuse of discretion, only insofar
as it implicates our standard of review. We summarily reject
defendant’s second argument for much the same reason as
its third. Finally, in light of our decision that the trial court
abused its discretion, we reverse the attorney fee award and
remand to the trial court with instructions to address the
806 Johnson v. O’Malley Brothers Corp.
issues raised by defendant’s sixth and final argument on
remand.1
We begin with an overview of the salient facts
and procedural history of this case, taken from the limited
record provided to us on appeal. Plaintiff worked briefly
for defendant as a commercial truck driver in August and
September 2013. Following the termination of his employment,
in November 2013, plaintiff sent defendant a “Notice
of Non-Payment of Wages.” The notice stated that plaintiff
was “not certain of all claims” that he had against defendant,
because he did not have “access to all the documents and
information in the possession, custody or control of [defendant]”;
that he “reserve[d] the right to assert other claims
and different amounts”; and that his notice was intended to
put defendant “on notice of all * * * claims whether specified
* * * or not.” Plaintiff indicated that defendant had not paid
him the following sums:
“1. Unpaid regular wages earned consisting of:
Hours paid at the wrong rate: 84 x $1.00 $ 84.00
Unpaid pre-shift hours worked $ 142.50
Unpaid post-shift hours worked: $ 142.50
Unpaid wages deducted unlawfully $ 126.95
TOTAL UNPAID EARNINGS: $ 495.95
“2. Liquidated damages for unlawful withholding: $ 200.00
“3. Unpaid premium pay for hours worked over
40 in a work week:
16.0 @ $7.00 $ 112.00
8.0 @ $7.50 $ 60.00
9.5 @ $7.50 $ 71.25
9.5 @ $7.50 $ 71.25
“4. Liquidated damages for failure to pay
premium pay: $ 314.50
“5. Continuation wages for failure to pay all
wages upon termination: $ 3,600.00
“TOTAL $ 4,924.95”
1 We conclude that defendant’s fifth argument is unpreserved, and we therefore
do not consider it on appeal. See Quick Collect, Inc. v. Higgins, 258 Or App
234, 241, 308 P3d 1089 (2013).
Cite as 285 Or App 804 (2017) 807
(Boldface in original; footnote omitted.) In December 2013,
plaintiff’s attorney sent defendant a “Notice of Wage Claim,”
which did not provide any further details regarding the
claims plaintiff intended to assert against defendant, but
which enclosed and incorporated the first notice by reference.
The attorney’s notice repeated the assertion that
plaintiff reserved the right to bring additional claims.
Defendant declined to pay the sums demanded by
plaintiff. In its exceptions to plaintiff’s fee request, defendant
explained that it had reviewed plaintiff’s personnel file after
receiving plaintiff’s written notice and concluded that his
wage and unlawful withholding claims were “unfounded.”
Plaintiff filed an action against defendant in
February 2014. The allegations of the complaint tracked the
claims described in plaintiff’s prelitigation notice of nonpayment.
Specifically, in his first claim for relief (the wage
claim), plaintiff alleged all of the amounts listed in his notice
of nonpayment, including $126.95 that he claimed had been
unlawfully deducted from his paycheck to pay a traffic fine.
In his second claim for relief (the unlawful withholding
claim), plaintiff sought, under ORS 652.615, statutory liquidated
damages of $200.00 arising solely out of his claim
that the $126.95 deduction was unlawful.2 In connection
with the wage claim, the complaint alleged that “[p]laintiff’s
attorney gave written notice of the claims in this matter
to defendant before filing the action.” Consistent with his
prelitigation notice, plaintiff alleged damages and penalties
totaling $4,924.95. In its answer, defendant denied that
plaintiff was entitled to any unpaid wages or penalties and
denied that plaintiff had given defendant notice of his claims.
Plaintiff deposed defendant’s representative on
July 9, 2014, three weeks before the scheduled arbitration
hearing. Two days after the deposition, defendant mailed
plaintiff a check in the amount of $975.59, purporting to
represent 37.15 hours of work at $14.00 per hour, less
applicable state and federal withholdings, as well as a
2 ORS 652.615 creates a cause of action for violations of ORS 652.610(3) (prohibiting
wage deductions with certain exceptions) and establishes a remedy of
“actual damages or $200, whichever is greater.”
808 Johnson v. O’Malley Brothers Corp.
“misc[ellaneous]” sum in the amount of $521.50.3 According
to defendant, it sent the check to plaintiff in an attempt to
pay him wages that it first learned that it owed him at the
July 9 deposition. Plaintiff did not accept that payment.
Instead, on July 28, plaintiff amended the complaint to
allege that he had worked 24.95 hours in August 2013 for
which he had not been paid (the August wages), as well as
additional premium pay claims corresponding to the newly
added August wages.4
As noted, the trial court referred the action to
court-annexed arbitration, see ORS 36.400(2), and an arbitrator
heard the matter on July 30, 2014. Following the
hearing, the arbitrator issued a written opinion separately
addressing each of plaintiff’s claims. The arbitrator denied
most of plaintiff’s wage claim, but awarded him $349.30
(24.95 hours at $14.00 per hour) for the August wages that
had come to light at defendant’s deposition and that plaintiff
had first alleged in the amended complaint. On plaintiff’s
unlawful withholding claim, in which he alleged that
defendant had unlawfully deducted $126.95 from his wages
to pay a traffic fine on his behalf, the arbitrator found for
plaintiff after concluding that the withholding was, in fact,
unlawful, because defendant made the deduction without
first obtaining plaintiff’s written authorization. See ORS
652.610(3)(b).5 On that claim, the arbitrator awarded plaintiff
liquidated damages of $200.00 in accordance with ORS
3 Defendant’s brief explains that the miscellaneous sum was, in its view, the
maximum penalty authorized by ORS 652.150(2)(b) for a late payment of wages.
4 Although plaintiff alleged he was not paid for 24.95 hours in August 2013,
rather than the 37.25 hours that defendant sought to make up with its postdeposition
offer of payment, the parties appear to share the understanding that
both figures correspond to the hours that first came to light during defendant’s
deposition. Neither party appears to attach any significance to the difference in
the two figures.
5 ORS 652.610(3)(b) provides that an employer may not deduct any portion
of an employee’s wages unless “[t]he deductions are voluntarily authorized in
writing by the employee, are for the employee’s benefit and are recorded in the
employer’s books[.]”
Despite concluding that the deduction was not authorized by law, the arbitrator
found that the
“traffic ticket was deducted from the paycheck with the full knowledge and
consent of the plaintiff. It is clear that both parties intended the deduction to
be made. It is clear that plaintiff benefited from the deduction. The deduction
was not withheld and kept by the defendant, it was paid directly to a debtor
Cite as 285 Or App 804 (2017) 809
652.615. Finally, after finding against plaintiff on all of
his remaining claims and allegations, the arbitrator determined
that defendant had not acted willfully in failing to
pay plaintiff any of the amounts that it owed him, because
defendant’s “actions amounted to a combination of unintentional
miscalculation, innocent error or lack of information,
and/or were performed under a good faith belief that
the wages were not due.” Therefore, the arbitrator declined
to award continuation wages as a penalty under ORS
652.150(1).6
Following the arbitrator’s rulings on the merits,
plaintiff sought $33,732.00 in attorney fees under two statutory
provisions: ORS 652.200(2), which, with certain exceptions
that we will discuss, provides for a mandatory attorney
fee award to a plaintiff who prevails on a wage claim; and
ORS 652.615, which authorizes an award of attorney fees to
a party who prevails on an unlawful withholding claim.
The arbitrator considered defendant’s written exceptions
to that request before concluding that a “full award
of the attorney fees sought [wa]s not reasonable in light
of the amount involved in the controversy and the results
obtained.” Instead, “[a]fter considering all of the factors
in ORS 20.075[7] and applying them to the evidence,” the
of the plaintiff. It is clear that neither party was aware that a written authorization
was required to accomplish the goal of paying [the] ticket.”
6 ORS 652.150(1) establishes a penalty when an employer fails to pay wages
under certain circumstances, as follows:
“Except as provided in subsections (2) and (3) of this section, if an
employer willfully fails to pay any wages or compensation of any employee
whose employment ceases, as provided in ORS 652.140 and 652.145, then,
as a penalty for the nonpayment, the wages or compensation of the employee
shall continue from the due date thereof at the same hourly rate for eight
hours per day until paid or until action therefore is commenced. However:
“(a) In no case shall the penalty wages or compensation continue for
more than 30 days from the due date[.]”
Plaintiff contends that the arbitrator erred in denying penalty wages under ORS
652.150(1), but did not seek trial de novo under ORS 36.425(2)(a), nor does he
cross-appeal or otherwise assign error to that decision on appeal. Accordingly, we
express no view on that ruling.
7 ORS 20.075(1) lists factors a court must consider when it decides whether
to award discretionary attorney fees, and ORS 20.075(2) lists additional factors
that a court must consider, along with the factors under ORS 20.075(1), when it
decides the amount of any discretionary or mandatory attorney fees that it will
award.
810 Johnson v. O’Malley Brothers Corp.
arbitrator awarded plaintiff half of his requested fees, or
$16,866.00. Defendant again filed written exceptions to that
award, this time with the trial court under ORS 36.425(6),
which, as noted, allows for exceptions “directed to the legal
grounds for an award or denial of attorney fees or costs, or
to the amount of the award.”
The trial court held a hearing on defendant’s exceptions
and issued an order upholding the arbitrator’s award.8
In that order, the trial court summarily concluded that the
arbitrator had not abused his discretion and denied defendant’s
exceptions. Accordingly, the trial court entered a
general judgment that, in relevant part, awarded plaintiff
$349.30 on his unpaid wage claim, $200.00 in liquidated
damages on his unlawful withholding claim, and $16,866.00
in attorney fees.9 This appeal followed.
Defendant raises six arguments on appeal, each
directed at the trial court’s ruling upholding the arbitrator’s
attorney fee award. First, defendant argues that the trial
court erred in reviewing the arbitrator’s fee award for an
abuse of discretion rather than for legal error. Defendant’s
second and third arguments focus on the award of mandatory
attorney fees under ORS 652.200(2) and assert that
plaintiff’s recovery under that statute is barred, either
because he willfully violated his employment contract, or,
alternatively, because plaintiff’s attorney unreasonably
failed to give defendant written notice of the wage claim on
which he prevailed. The focus of defendant’s fourth argument
is the arbitrator’s award of discretionary fees, under
ORS 652.615, on plaintiff’s unlawful withholding claim,
which, defendant contends, constituted an abuse of discretion
in light of the arbitrator’s specific finding that plaintiff
had requested the underlying deduction for his own benefit.
Finally, in his sixth argument, defendant contends that
the trial court abused its discretion by failing to reduce the
8 We do not have a transcript of that hearing on appeal.
9 Notably, the court indicated in the judgment that plaintiff was awarded
attorney fees on both the wage claim and the unlawful withholding claim, but did
not segregate the fee award by claim or otherwise indicate how much of the award
was associated with each claim.
Cite as 285 Or App 804 (2017) 811
amount of the fee award based on the factors listed under
ORS 20.075.10
For the reasons discussed below, we agree with
defendant that the trial court committed reversible error
in its award of attorney fees in this case, but reject several
of defendant’s contentions as to how the court erred.
Specifically, we reject defendant’s contention that the trial
court’s reliance on an abuse of discretion standard constitutes
reversible error, as well as its contention that plaintiff’s
recovery of fees under ORS 652.200(2) is barred by one
of that statute’s exceptions. We agree, however, that it was
an abuse of discretion to award fees under ORS 652.615 for
the unlawful withholding claim, because the arbitrator’s
findings weigh heavily against an award of fees when the
applicable factors under ORS 20.075(1) are considered, and
the record discloses no countervailing considerations.
Before elaborating on defendant’s contentions, we
consider the appropriate standard of review. As noted,
defendant’s first argument is that the trial court erred in
reviewing the arbitrator’s attorney fee award for an abuse
of discretion and that the court should have reviewed the
award for legal error. However, defendant does not advance
that argument on appeal. Instead, defendant proceeds to
argue that our standard of review is for legal error, with the
exception of the decision to award fees under ORS 652.615
and the application of the ORS 20.075 factors in determining
the amount of any award. Notwithstanding its position
that the trial court erred in applying an abuse of discretion
standard, defendant contends, citing ORS 20.075(3), that we
must apply that standard to those decisions on appeal.
For his part, plaintiff does not seem to dispute
defendant’s contention that the trial court erred in applying
an abuse of discretion standard. Indeed, plaintiff’s position,
citing Williamson v. Government Employees Ins. Co., 247 Or
App 48, 270 P3d 260 (2011), rev den, 252 Or 25 (2012), is that
“the trial judge lacked discretion to modify the award so long
as the arbitrator correctly applied the law in awarding fees.”
10 Defendant’s fifth argument is that the trial court erred in awarding fees
not reasonably related to the claims on which plaintiff prevailed. As noted, 285
Or App at 806 n 1, that argument is not preserved, and we do not consider it.
812 Johnson v. O’Malley Brothers Corp.
Further, citing Rivera-Martinez v. Vu, 245 Or App 422, 263
P3d 1078, rev den, 351 Or 318 (2011), plaintiff argues that
our review is limited to a determination of whether the trial
court erred as a matter of law in upholding the arbitrator’s
attorney fee award.11
We conclude that, even if the trial court erroneously
applied an abuse of discretion standard in reviewing the
arbitrator’s attorney fee award, any such error would not be
reversible here. That conclusion flows from the fact that, if
the attorney fee award resulted from an erroneous application
of the law, our focus on appeal would be on that alleged
legal error. Concomitantly, if we were to reverse, it would
be because the award of fees was not legally sound, and not
because the trial court applied the incorrect standard of
review. And, as for our review, the standard is clear:
“We review the circuit court’s legal determinations with
respect to entitlement to attorney fees for errors of law.
Koster Remodeling & Construction, Inc. v. Jataka, 155 Or
App 142, 145, 963 P2d 726 (1998). If attorney fees are
authorized or required, we review the trial court’s award
(or lack thereof) for an abuse of discretion. ORS 20.075(3).”
Barber v. Green, 248 Or App 404, 410, 273 P3d 294 (2012).
Thus, we review for legal error the trial court’s conclusion
that plaintiff was entitled to attorney fees under ORS
652.200(2). See id.
On the other hand, discretionary decisions, such
as whether to award attorney fees that are not mandatory
or the amount of any fees that a court may award, are
subject—not surprisingly—to review for an abuse of discretion.
Id.; see Quick Collect, Inc. v. Higgins, 258 Or App
11 Plaintiff also addresses defendant’s first argument in his general assertion
that defendant’s brief fails to comply with the rules of appellate procedure.
Among other things, plaintiff correctly observes that defendant’s brief does not
comply with ORAP 5.45(4)(a), which requires appellants to set out specific information
demonstrating how and where appellant preserved the errors raised on
appeal. Although plaintiff argues that we should affirm for that reason alone, he
does not contend that defendant’s arguments are unpreserved, and we conclude
that, at least as to those that we consider on the merits, they are preserved.
Further, because the deficiencies in the opening brief have not unduly hampered
our ability to consider defendant’s arguments, we decline to exercise our discretion
to reject them on that basis. See Albertson’s, Inc. v. Bureau of Labor and
Industries, 128 Or App 97, 99-100, 874 P2d 1352 (1994).
Cite as 285 Or App 804 (2017) 813
234, 242, 308 P3d 1089 (2013) (“We review the amount of an
attorney fee award for an abuse of discretion.” (Citing Ashley
v. Garrison, 162 Or App 585, 591, 986 P2d 654 (1999).)).
Because defendant does not contend that plaintiff was not
entitled to attorney fees under ORS 652.615, but only that
he should not have received an award under the circumstances,
we review that award for an abuse of discretion. We
proceed with those standards in mind.
Turning to the merits, we begin with defendant’s
contention that plaintiff’s recovery of mandatory attorney
fees under ORS 652.200(2) is barred. We focus on defendant’s
argument that, because plaintiff did not provide his
employer with written notice of the wage claim on which
he ultimately prevailed, he was not entitled to a fee award
under that statute.
Under ORS 652.200(2), a plaintiff who prevails in a
wage action is generally entitled to attorney fees. That statute
provides, in relevant part:
“In any action for the collection of wages, if it is shown
that the wages were not paid * * * the court shall, upon
entering judgment for the plaintiff, include in the judgment,
in addition to the costs and disbursements otherwise
prescribed by statute, a reasonable sum for attorney
fees at trial and on appeal for prosecuting the action,
unless it appears that the employee has willfully violated
the contract of employment or unless the court finds that
the plaintiff’s attorney unreasonably failed to give written
notice of the wage claim to the employer before filing the
action.”
ORS 652.200(2). Thus, under that provision, an award of
attorney fees is mandatory when a plaintiff prevails on a
wage claim unless (1) the employee willfully violated the
employment contract or (2) the employee’s attorney unreasonably
failed to give notice of the wage claim to the
employer. See id. Conversely, if either circumstance is present,
ORS 652.200(2) does not authorize fees. See Belknap v.
U. S. Bank National Association, 235 Or App 658, 672, 234
P3d 1041 (2010), rev den, 349 Or 654 (2011) (court erred in
awarding fees under ORS 652.200(2) when one of that provision’s
disqualifying conditions was met).
814 Johnson v. O’Malley Brothers Corp.
In this case, the arbitrator awarded attorney fees
under ORS 652.200(2) because plaintiff prevailed, at least
in part, on his wage claim, specifically, on his allegation
that he had not been paid for “11 hours of work on 8/16
at $14 per hour and * * * 13.95 hours from 8/19 through
8/31 at $14 per hour” (i.e., the August wages). Defendant
sought review of that award by the trial court under ORS
36.425(6) (allowing parties to arbitration to challenge
attorney fee decisions without requesting trial de novo).
Defendant argued that ORS 652.200(2) did not authorize a
fee award, because plaintiff had not provided written notice
of his claim for the August wages before filing his complaint.
Rather than address that argument, the trial court
summarily concluded that the arbitrator had not abused his
discretion. As noted, defendant asserts that the trial court
was required to review the arbitrator’s fee award for legal
error, not for an abuse of discretion, and that, under the correct
standard of review, the arbitrator’s ruling was legally
unsound. Plaintiff argues that the arbitrator properly
considered—and rejected—defendant’s arguments under
ORS 652.200(2) and that, to the extent defendant suggests
otherwise, its contentions raise only unreviewable “factual
challenges” to the award.
Defendant argues to us—as it did to the arbitrator
and to the trial court—that ORS 652.200(2) did not
authorize the award of attorney fees in this case, because
plaintiff did not provide notice of the wage claim on which
he ultimately prevailed. Specifically, defendant argues that
Belknap requires a plaintiff to provide notice of “the” particular
wage claim he wishes to assert to provide an employer
with the opportunity to resolve that wage claim before
the plaintiff files suit. See 235 Or App at 671. Defendant
argues that “the” wage claim on which plaintiff prevailed
was his claim for the August wages, and, because plaintiff’s
“Notice of Wage Claim” did not identify those wages, it did
not satisfy the notice requirement articulated in Belknap.
See id.12 Other than contending that defendant is making
12 After our decision in Belknap, 253 Or App at 669-72, which construed the
notice language of ORS 652.200(2) (requiring “written notice of the wage claim”),
the legislature adopted a more specific notice requirement, now found at ORS
652.150(2)(c). Or Laws 2011, ch 348, § 2. In relevant part, ORS 652.150(2)(c)
Cite as 285 Or App 804 (2017) 815
arguments that the arbitrator found unpersuasive, plaintiff
does not address defendant’s notice argument.
Nonetheless, we conclude that defendant’s notice
argument fails. We do not necessarily agree with plaintiff
that defendant is seeking to revisit the arbitrator’s factual
findings. But we conclude, for the reasons that follow, that
the procedural posture of this case precludes defendant’s
challenge, and we therefore reject it.
We start with the statutory basis for the award,
ORS 652.200(2). Under that statute, if a plaintiff in a wage
claim prevails (“if it is shown that the wages were not paid”),
then an attorney fee award is presumptively mandatory:
“[T]he court shall, upon entering judgment for the plaintiff,
include in the judgment * * * a reasonable sum for attorney
fees * * *.” ORS 652.200. But, as we have just observed,
that mandatory fee provision does not apply if one of two
conditions is present: either the plaintiff has willfully violated
his or her employment contract, or, as relevant to this
discussion, “the court finds that plaintiff’s attorney unreasonably
failed to give written notice of the wage claim to
the employer before filing the action.” Id. (emphasis added).
Here, we understand defendant to argue that, as a matter of
law, the notice that plaintiff’s attorney gave defendant was
not, within the meaning of ORS 652.200(2), “written notice
of the wage claim” on which plaintiff prevailed, and that
plaintiff is therefore not entitled to an attorney fee award
under that statute.
We reject that argument for two reasons. First,
even assuming that the notice of wage claim sent by plaintiff’s
attorney failed to satisfy ORS 652.200(2)—a contention
that plaintiff does not appear to dispute on appeal—the
resulting conclusion, that plaintiff’s attorney “failed to give
written notice of the wage claim,” is not sufficient to trigger
provides that “written notice of nonpayment must include the estimated amount
of wages or compensation alleged to be owed or an allegation of facts sufficient to
estimate the amount owed.” Defendant notes the newer statute only in passing,
and simply observes that it is “substantially similar” to ORS 652.200(2). Plaintiff
does not mention ORS 652.150(2)(c), much less contend that it has any bearing on
the adequacy of his notice.
816 Johnson v. O’Malley Brothers Corp.
an exception to the mandatory fee provision. That is, by the
plain language of the statute, the failure to give written
notice is immaterial unless that failure was also “unreasonabl[
e].” ORS 652.200(2); Belknap, 235 Or App at 672. And,
although plaintiff does not argue on appeal that, under the
circumstance of this case, any failure to give written notice
was reasonable, we cannot conclude that it was unreasonable
on that basis alone.
That takes us to the second defect in defendant’s
notice argument. To illustrate our point, we again focus on
the mechanics of ORS 652.200(2). Under that statute, the
default outcome is that a prevailing plaintiff recovers his
or her attorney fees. See id. That is, once the plaintiff in
a wage claim case “show[s] that the wages were not paid,”
as plaintiff indisputably did in this case, the trial court
must (“the court shall”) include in the resulting judgment
an award of reasonable attorney fees, unless one of two
exceptions applies. Id. And, as relevant to defendant’s notice
argument, the default outcome stands “unless the court finds
that the plaintiff’s attorney unreasonably failed to give
written notice.” ORS 652.200(2) (emphasis added). Here,
defendant has not demonstrated that the arbitrator or the
trial court made such a finding or that the record compelled
that finding. Cf. Barber, 248 Or App at 412 (noting similar
flaws in parties’ arguments under ORS 20.084(4)). As the
party seeking to rely on the statutory exception under ORS
652.200(2), defendant bore the burden of proving its application
here. See generally OEC 305 (burden of persuasion);
OEC 307 (burden of production).
To the extent that defendant suggests that the
evidence presented below could only support one conclusion—
that the failure by plaintiff’s attorney to give written
notice was not reasonable—the record on appeal is insufficient
for us to consider that contention. As far as we can
tell, defendant did not compile a record of the arbitration for
the benefit of the trial court, nor has an evidentiary record
from either tribunal been provided to us. And, as the party
with the burden of ensuring that the record on appeal is
adequate, defendant must bear the consequence when it is
not. Quick Collect, Inc., 258 Or App at 242 n 3 (appellant
Cite as 285 Or App 804 (2017) 817
has the burden to provide an adequate record for appeal).13
Accordingly, we reject defendant’s notice argument.14
We turn next to defendant’s challenge to the amount
of attorney fees under ORS 652.615. Defendant contends
that it was an abuse of discretion to award fees under that
provision after the arbitrator expressly found that defendant
deducted the small sum from plaintiff’s paycheck at
his express request and solely for his benefit. We agree with
defendant.
Under ORS 652.615, a plaintiff who established an
unlawful withholding claim may recover his or her “actual
damages or $200, whichever is greater” and “the court may
award to the prevailing party * * * reasonable attorney
fees.” (Emphasis added.) Thus, ORS 652.615 authorizes,
but—unlike ORS 652.200(2)—does not require, an award
of attorney fees. See Clackamas Cty. Assessor v. Village at
Main Street, 352 Or 144, 151, 282 P3d 814 (2012) (a statute
that uses the word “may” to describe the court’s authority
to award fees provides the court with discretion to allow or
deny attorney fees).
13 Defendant may contend that the question of whether the failure to give
notice was reasonable raises a purely legal question that we can answer without
resorting to the record. See Belknap, 235 Or App at 672 (rejecting, in light
of the statutory purpose of ORS 652.200(2) and the parties’ legal arguments,
the trial court’s conclusion that the plaintiff’s failure to give notice was reasonable).
That contention, however, would be arguably at odds with the statute’s
contemplation of a “find[ing]” by the trial court. See ORS 652.200(2).
In any event, where, as here, it is evident even from the limited record that
there were questions as to what the parties knew and when they knew it, we
conclude that, even if reasonableness is ultimately a legal question, in this
case it turns on factual disputes beyond review. In that regard, we agree with
plaintiff.
14 We note that our discussion here is limited to defendant’s contention
that the lack of written notice disqualified plaintiff from a fee award
under ORS 652.200(2). Defendant separately argues that plaintiff willfully
violated his employment contract, which, he contends, independently
bars recovery under that fee statute. See ORS 652.200(2). In support of the
same contention before the trial court, defendant submitted a declaration
purporting to demonstrate, as fact, that plaintiff could not have refused
to perform his work duties for the reasons that he claimed, and that, as a
result, his refusal constituted a willful violation of his contract. That factual
dispute—and defendant’s related credibility arguments to the trial court
and to us—are beyond the authorized scope of review under ORS 36.425(6)
and on appeal. Accordingly, we reject that separate argument without further
discussion.
818 Johnson v. O’Malley Brothers Corp.
Although the decision to award fees under ORS
652.615 is discretionary, a court must consider the factors
under ORS 20.075 “in determining whether to award attorney
fees.” See Preble v. Dept. of Rev., 331 Or 599, 602, 19 P3d
335 (2001). Those factors are as follows:
“(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.
“(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.”
ORS 20.075(1).
As noted, the arbitrator explained that he considered
the factors in ORS 20.075 and applied them to the evidence.
The arbitrator concluded that a “full award of the
attorney fees sought [wa]s not reasonable in light of the
amount involved in the controversy and the results obtained”
and awarded only one-half of what plaintiff had requested.
On review, the trial court concluded that the arbitrator had
not abused his discretion in making that decision.
Defendant argues that it was an abuse of discretion
to award any attorney fees under ORS 652.615 in light of the
Cite as 285 Or App 804 (2017) 819
arbitrator’s specific findings regarding the nature of defendant’s
violations. Again, those findings were as follows:
“[The] traffic ticket was deducted from the paycheck with
the full knowledge and consent of the plaintiff. It is clear
that both parties intended the deduction to be made. It
is clear that plaintiff benefited from the deduction. The
deduction was not withheld and kept by the defendant, it
was paid directly to a debtor of the plaintiff. It is clear that
neither party was aware that a written authorization was
required to accomplish the goal of paying [the] ticket.”
Plaintiff is evidently correct in observing that the arbitrator
was not persuaded that those findings precluded an award
of fees under ORS 652.615. However, after considering them,
together with the record as a whole, in light of the factors
listed in ORS 20.075(1), we conclude otherwise.
We note that plaintiff does not dispute that all of
the arbitrator’s findings reflected that defendant acted in
good faith. See ORS 20.075(1)(a) (requiring court to consider
whether conduct giving rise to litigation involved bad
faith); ORS 20.075(1)(h) (in addition to enumerated factors
a court must consider, “[s]uch other factors as the court may
consider appropriate under the circumstances of the case”).
Here, defendant simply misunderstood the law. In fact, in
addition to the findings set out above, the arbitrator specifically
found that neither plaintiff nor defendant knew that
ORS 652.610(3)(b) required the authorization for the deduction
to be in writing. Under those circumstances, awarding
attorney fees for what the arbitrator recognized as a purely
technical violation would do virtually nothing to protect
employees or otherwise serve the statutory purpose of the
fee-shifting provision in ORS 652.615. See Swarens v. Dept.
of Rev., 320 Or 669, 674, 890 P2d 1374 (1995) (noting that,
when a government entity “erroneously but reasonably interpret[
ed] a statute, the purposes ascribed to the attorney fee
statute are not served by a fee award”); see also Belknap, 235
Or App at 670-72 (describing purpose of fee-shifting provisions
generally). Further, neither the trial court below nor
plaintiff on appeal has identified any of the factors in ORS
20.075(1) that weigh in favor of an attorney fee award, and
we glean none from the record. In light of the arbitrator’s
specific findings suggesting that an award of attorney fees
820 Johnson v. O’Malley Brothers Corp.
would not be appropriate, together with the absence of any
apparent countervailing factors to support an award, it was
an abuse of discretion to award attorney fees to plaintiff
under ORS 652.615.
Furthermore, because the trial court did not differentiate
between the attorney fees that it awarded on plaintiff’s
wage claim and the fees it awarded on his unlawful
withholding claim, we reverse the attorney fee award in its
entirety, and remand for an award of attorney fees consistent
with this opinion.
Finally, our resolution of those matters renders it
unnecessary for us to address defendant’s last argument,
namely, that the trial court abused its discretion in not
reducing the attorney fee award in light of the ORS 20.075
factors. We presume that the court will consider all appropriate
factors when calculating its award of attorney fees on
remand.

Outcome: Award of attorney fees reversed and remanded; otherwise
affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: