Art Robinson v. Peter DeFazio

Defendant Peter DeFazio appeals from a supplemental

judgment that awarded him some, but not all, of his

attorney fees and costs against plaintiff Art Robinson. On

appeal, defendant argues that the trial court erred by applying

unlawful and impermissible factors when it reduced

defendant’s attorney fee request.1 As explained below, we

conclude that the trial court abused its discretion when it

reduced defendant’s award of attorney fees.2 Accordingly, we

vacate and remand on appeal.

The circumstances material to our analysis and disposition

are undisputed. Plaintiff and incumbent defendant

were competing candidates in the 2012 election for the United

States House of Representatives Oregon Congressional

District number four position. Plaintiff filed a complaint

against defendant alleging that defendant had erected billboards

that lacked disclosures required by federal law, and

thus appropriated plaintiff’s likeness and placed plaintiff

in a false light. Defendant filed special motions to strike

each of plaintiff’s claims under ORS 31.150, Oregon’s anti-

Strategic Lawsuit Against Public Participation (anti-SLAPP)

statute.3

1 In defendant’s second assignment of error, he contends that the trial court

erred as a matter of law by failing to supply findings sufficient for appellate

review. We conclude that the trial court’s findings in the letter opinion addressing

attorney fees were sufficient under McCarthy v. Oregon Freeze Dry, Inc., 327

Or 84, 96, 957 P2d 1200, modified on recons, 327 Or 185 (1998). Thus, we reject

defendant’s second assignment of error without further discussion.

2 In plaintiff’s first assignment of error on cross-appeal, he contends that the

trial court erred in awarding a prevailing party fee under ORS 20.190(2)(a)(A).

In plaintiff’s second assignment of error on cross-appeal, he contends that “the

trial court’s conclusion that a dismissal on any basis could create an anti-SLAPP

entitlement to fees was incorrect.” We reject both of those assignments of error

without discussion.

3 Under the anti-SLAPP statute, a defendant must establish a prima facie

case that the plaintiff’s claims arose out of statements, documents, or conduct,

as described in ORS 31.150(2). If the defendant makes that prima facie showing,

then “the burden shifts to the plaintiff in the action to establish that there is a

probability that the plaintiff will prevail on the claim by presenting substantial

evidence to support a prima facie case.” ORS 31.150(3). “If the plaintiff meets

[that] burden, the court shall deny the motion.” ORS 31.150(3). See Handy v. Lane

County, 360 Or 605, 385 P3d 1016 (2016) (explaining that “the plaintiff must submit

sufficient evidence from which a reasonable trier of fact could find that the

plaintiff met its burden of production”).

Cite as 284 Or App 98 (2017) 101

Plaintiff then filed a motion for an order allowing

specified discovery of two nonparties, and defendant

objected on several grounds, including federal preemption.

In a letter opinion, the trial court denied plaintiff’s request

for discovery. The trial court explained:

“In the present case, the plaintiff’s request for discovery

is specifically directed at instances where plaintiff alleges

that defendants have both violated federal election laws;

and by doing so have placed plaintiff in a false light and/

or appropriated his likeness. This court believes that those

state allegations are preempted by federal law; and thus

will not order discovery on such issues.”

Thereafter, plaintiff responded that defendant’s

motion to dismiss under the anti-SLAPP statute should be

denied because, among other things, “[p]laintiff’s claims are

not preempted by the Federal Elections Commission Act,

because they are common law torts which are not laws ‘with

respect to election to federal office.’ ” Defendant replied, contending,

again, that plaintiff’s claims were preempted by

federal election law, and thus, plaintiff’s claims should be

dismissed because he had not met his burden of showing

the requisite probability of prevailing on those claims, as

required under ORS 31.150(3).

The trial court issued a letter opinion that dismissed

plaintiff’s claims, largely based on federal preemption,

because plaintiff had not met his burden under ORS

31.150(3). Subsequently, the trial court entered a general

judgment of dismissal without prejudice in favor of defendant

under the anti-SLAPP statute. Plaintiff did not appeal

that judgment.

After entry of the general judgment, defendant filed

a statement for attorney fees, costs, and disbursements,

under ORS 31.152(3), requesting $57,289 in attorney fees

for hours and services provided by his three attorneys.

Defendant’s request was based on the following calculations:

Richard Adams’s billing rate of $250 per hour for 15.75

hours, totaling $3,937.50; Daniel Meek’s billing rate of $350

per hour for 59.19 hours, totaling $20,716.50; and Linda

Williams’s billing rate of $350 per hour for 91.7 hours, totaling

$32,095.00, and a rate of $150 per hour for 3.6 hours,

102 Robinson v. DeFazio

totaling $540. Defendant provided attorney declarations

and documents in support of the requested attorney fees and

costs. Those documents included the following information

about the attorneys: education and prior experience, hourly

rate, billing and timekeeping practices, hours devoted to the

case, and costs. Defendant also requested a prevailing party

fee under ORS 20.190(2)(B) and $609.09 in costs and disbursements

under ORCP 68 A(2). Plaintiff objected both to

defendant’s attorney fees request and prevailing party fee

request.

The trial court awarded defendant $15,000 in attorney

fees under ORS 31.152(3). In a letter opinion, the trial

court explained:

“[T]he Court will award attorney fees, as mandated by

ORS 31.152(3), subject only to their reasonableness.

“In considering reasonableness, the Court is directed to

ORS 20.075(2). That statute, in turn, directs the Court to

consider those factors set in ORS 20.075(1) and 20.075(2),

which is meant to be a nonexclusive listing. ORS 20.075(1)(h).

Suffice to say, this Court has considered each and every one

of these factors, to the extent that there has been evidence

presented to consider. After a brief review of applicable

case law, the Court will discuss those particular factors it

finds especially relevant.”

The trial court considered seven factors especially relevant

to its conclusion: (1) the timing of the anti-SLAPP motion;

(2) the necessity of using the anti-SLAPP procedure;

(3) the deterrent effect of an attorney fee award; (4) the hours

billed; (5) the hourly rate; (6) the amount at risk and the

result obtained; and (7) the reasonableness of the parties.

In considering the necessity of using the anti-SLAPP procedure,

the trial court referred to its earlier letter opinion

on discovery where it denied plaintiff’s request for discovery

based on federal preemption, and stated that,

“before the vast majority of attorney fees in this case were

expended, defendant had a clear signal from this Court

that plaintiff’s claims were pre-empted by federal law.

Nevertheless, the defendant chose to continue his challenge

to plaintiff’s complaint via the anti-SLAPP procedure,

which engendered attorney fees; as opposed to a rule 21

motion that did not.”

Cite as 284 Or App 98 (2017) 103

In considering the attorneys’ hourly rate, the trial court

stated that, “[a]lthough Ms. Williams is an effective advocate

and writer, * * * there is nothing especially complex

about this proceeding that justifies her hourly rate for litigation

in Southern Oregon.” The trial court did not make

any findings about the reasonableness of any hourly rate of

the attorneys apart from the above statements. In conclusion,

the trial court awarded defendant $15,000 in attorney

fees and stated that it “will not award any further attorney

fees for subsequent litigation.” The trial court also

awarded defendant $608.39 in costs and disbursements and

a $550.00 prevailing party fee. Defendant appeals the supplemental

judgment containing those awards, and plaintiff

cross-appeals.

On appeal, defendant challenges the amount of

attorney fees awarded. We review the trial court’s award or

denial of attorney fees for an abuse of discretion. See ORS

20.075(3) (“In any appeal from the award or denial of an

attorney fee subject to this section, the court reviewing the

award may not modify the decision of the court in making

or denying an award, or the decision of the court as to the

amount of the award, except upon a finding of an abuse of

discretion.” (Emphasis added.)). Further, “[a]lthough we

review the trial court’s decision for abuse of discretion, the

terms on which the trial court exercised its discretion must

be legally permissible.” Barbara Parmenter Living Trust v.

Lemon, 345 Or 334, 342, 194 P3d 796 (2008).

The trial court awarded attorney fees to defendant

under ORS 31.152(3), which mandates for an award of “reasonable

attorney fees and costs” for a “defendant who prevails

on a special motion to strike made under ORS 31.150.”

In determining a reasonable attorney fee award under ORS

31.152(3), the trial court must consider factors enumerated

in ORS 20.075. ORS 20.075 provides, in pertinent part:

“(1) 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:

“* * * * *

104 Robinson v. DeFazio

“(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.

“(2) A court shall consider the factors specified in subsection

(1) of this section in determining the amount of an

award of attorney fees in any case in which an award of

attorney fees is authorized or required by statute. In addition,

the court shall consider the following factors in determining

the amount of an award of attorney fees in those

cases:

“(a) The time and labor required in the proceeding,

the novelty and difficulty of the questions involved in the

proceeding and the skill needed to properly perform the

legal services.

“* * * * *

“(c) The fee customarily charged in the locality for

similar legal services.

“* * * * *

“(g) The experience, reputation and ability of the

attorney performing the services.

“* * * * *

“(3) In any appeal from the award or denial of an

attorney fee subject to this section, the court reviewing the

Cite as 284 Or App 98 (2017) 105

award may not modify the decision of the court in making

or denying an award, or the decision of the court as to the

amount of the award, except upon a finding of an abuse of

discretion.

“(4) Nothing in this section authorizes the award of an

attorney fee in excess of a reasonable attorney fee.”

On appeal, defendant contends that, instead of

addressing the pertinent ORS 20.075(2) factors, the trial

court relied upon unlawful factors in reducing defendant’s

requested attorney fee award by 75 percent. Defendant

asserts that the following factors the trial court relied on

were unlawful: (1) the timing of the anti-SLAPP motion,

which was filed after the election; (2) the necessity of using

the anti-SLAPP motion procedure; and (3) the deterrent

effect of an attorney fee award. We reject defendant’s argument

that the factors the trial court relied on were unlawful.

Those factors were lawful considerations under ORS

20.075(1)(b), (c), (d), and (e):

“(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.”

Additionally, as plaintiff points out, ORS 20.075(1)(h) provides

that the trial court may consider “other factors as the

court may consider appropriate under the circumstances of

the case” and therefore the trial court did not rely on impermissible

factors.

To the extent that defendant contends that the trial

court abused its discretion by misapplying the above statutory

factors, we agree with defendant that the trial court

abused its discretion with respect to some of those factors.

First, the trial court misapplied ORS 20.075(1)(b) and (e)

106 Robinson v. DeFazio

in considering the necessity of using the anti-SLAPP procedure.

As discussed above, in considering the necessity of

using the anti-SLAPP procedure, the trial court stated:

“[B]efore the vast majority of attorney fees in this case

were expended, defendant had a clear signal from this

Court that plaintiff’s claims were pre-empted by federal

law. Nevertheless, the defendant chose to continue his

challenge to plaintiff’s complaint via the anti-SLAPP procedure,

which engendered attorney fees; as opposed to a

rule 21 motion that did not.”

Defendant contends that the trial court was incorrect in its

assumption that, before the “vast majority” of the attorney

fees were expended, defendant had a clear signal that plaintiff’s

claims were preempted by federal law when the trial

court issued its letter opinion denying plaintiff’s request for

discovery based on federal preemption. Defendant asserts,

and presented evidence to the trial court, that roughly 49

percent of defendant’s attorneys’ time was expended before

the trial court issued its letter opinion on the discovery issue.

Thus, the trial court misunderstood a significant fact—the

timing of when defendant’s attorney fees were incurred—

when it significantly reduced defendant’s requested attorney

fees.

Moreover, the trial court appears to have reduced

the amount of attorney fees because defendant used the

anti-SLAPP procedure instead of a procedure that would

not have entitled defendant to fees. The trial court necessarily

recognized that defendant’s use of the anti-SLAPP

procedure was permissible, because the trial court awarded

attorney fees to defendant based on the anti-SLAPP statute.

The trial court reduced defendant’s attorney fees based, in

part, on defendant’s use of a permissible procedure. Indeed,

it was permissible and reasonable for defendant to file an

anti-SLAPP motion under ORS 31.150(2)(c) in response to

plaintiff’s complaint because plaintiff’s complaint directly

implicated that statute. To the extent that the trial court

reduced the amount of attorney fees based on defendant

using the anti-SLAPP procedure, that was an impermissible

application of ORS 20.075(1)(b) and (e). Under those

factors, the trial court is directed to consider the objective

Cite as 284 Or App 98 (2017) 107

reasonableness of the claims and defenses asserted by the

parties and the parties’ attorneys in the proceeding. Those

factors do not provide a mechanism to reduce requested fees

based on the trial court’s subjective estimation that a different

procedure to obtain a dismissal should have been used.

We note that the trial court’s consideration of defendant’s

pursuit of his anti-SLAPP motion was not solely

addressed to the permissibility or reasonableness of defendant’s

use of that procedure. Rather, the trial court was also

addressing what it considered to be excessive litigation on

behalf of defendant, in light of the legal issues presented

and the fact that the election had already concluded. That

consideration is a permissible one under ORS 20.075(1)(e).

What was not permissible and an abuse of the court’s discretion

was for the court to, in effect, punish defendant for

choosing a reasonable dismissal procedure that entitled him

to obtain attorney fees.

Next, we turn to whether the trial court misapplied

the remaining ORS 20.075(2) factors to determine the attorney

fees awarded to defendant. We address only defendant’s

contention that the trial court failed to lawfully evaluate an

hourly rate for defendant’s attorneys. We reject defendant’s

remaining arguments without discussion. Plaintiff responds

that the trial court adequately analyzed the hourly rate of

defendant’s attorneys in determining a reasonable amount

of attorney fees to award.

As discussed above, ORS 20.075(2) provides, as relevant,

that the trial court shall consider:

“(a) The time and labor required in the proceeding,

the novelty and difficulty of the questions involved in the

proceeding and the skill needed to properly perform the

legal services.

“* * * * *

“(c) The fee customarily charged in the locality for

similar legal services.

“* * * * *

“(g) The experience, reputation and ability of the

attorney performing the services.”

108 Robinson v. DeFazio

In considering the hourly rate of defendant’s attorneys,

the trial court stated that, “[a]lthough Ms. Williams

is an effective advocate and writer, * * * there is nothing

especially complex about this proceeding that justifies her

hourly rate for litigation in Southern Oregon.” The trial

court discussed the “novelty and difficulty” of this case by

stating that “there is nothing especially complex about this

proceeding that justifies” Williams’s hourly rate, but did not

otherwise indicate what would be a reasonable rate for the

litigation or the actual hourly rate it relied on to determine

the attorney fee award.

Additionally, the trial court does not acknowledge

the hourly rate of defendant’s other two attorneys—Meek

and Adams. Defendant included information about the

attorneys’ education and prior experience, and their hourly

billing rates of $250 per hour for Adams, $350 per hour for

Meek, and $350 per hour and $150 per hour for Williams.

Nonetheless, the court reduced defendant’s requested fees

based, in part, on its own estimation that defendant could

have found less costly counsel in Southern Oregon. Defendant

was not required to employ less costly local counsel to litigate

the case to be entitled to a reasonable award of attorney

fees. The evidence submitted by defendant established

that his attorneys had reasonable hourly rates for Oregon.

Consequently, we conclude that the trial court abused its

discretion when it reduced defendant’s requested attorneys

fees based on a finding that Williams’s hourly rates were

too high after concluding that less-costly attorneys were

available in Southern Oregon, and when it failed to consider

defendant’s other attorneys’ hourly rates.

Because the trial court abused its discretion when it

misapplied the necessity of using the anti-SLAPP procedure

and the hourly rate of defendant’s attorneys, we vacate the

trial court’s award of attorney fees. See Grisby v. Progressive

Preferred Ins. Co., 233 Or App 210, 222, 225 P3d 101 (2010)

(“[A] court’s discretionary authority to reduce requested

attorney fees that are otherwise reasonable, * * * is subject

to principled constraints. In particular, there must be

a rational nexus between the [ORS 20.075] factor invoked,

and its underlying circumstances, and the amount of the

Cite as 284 Or App 98 (2017) 109

reduction.”). On remand, the trial court should consider, as

discussed in this opinion, the timing of the accrual of defendant’s

attorney fees, defendant’s objectively reasonable use

of the anti-SLAPP procedure, and the hourly rate of all of

defendant’s attorneys. Because we vacate and remand the

attorney fee award on the above bases we do not address

defendant’s argument that the trial court abused its discretion

when it preemptively denied “any further requests for

fees.” We reject defendant’s additional arguments on appeal

without discussion.

We turn to plaintiff’s cross-appeal. Plaintiff contends

that the trial court erred in awarding defendant

a $550 prevailing party fee under ORS 20.190(2)(a)(B).

Instead, plaintiff asserts that the trial court should have

awarded defendant a lower prevailing party fee under ORS

20.190(2)(a)(A).

ORS 20.190 sets out amounts recoverable by a prevailing

party. ORS 20.190(2) (2012) provided, at the time of

this litigation:

“In lieu of the prevailing party fee provided for in subsection

(1) of this section, in any civil action or proceeding

in which recovery of money or damages is sought, a prevailing

party who has a right to recover costs and disbursements

also has a right to recover, as a part of the costs and

disbursements, the following additional amounts:

“(a) In a circuit court:

“(A) When judgment is given without trial of an issue

of law or fact, $275; or

“(B) When judgment is given after trial of an issue of

law or fact, $550.”4

(Emphasis added.)

Plaintiff argues that, because judgment was given

without a “trial,” the trial court did not “try” an issue of law

or fact in deciding the anti-SLAPP motions, thus the trial

4 The amount of the prevailing party fees were raised in 2013 by the legislature

from $550 to $575 for fees “after trial of an issue of law or fact,” and from

$275 to $300 for “judgment given without trial of an issue of law or fact.” Or Laws

2013, ch 685, § 44.

110 Robinson v. DeFazio

court erred in awarding a $550 prevailing party fee under

ORS 20.190(2)(a)(B). Plaintiff asserts that “a preliminary

motion ruling is obviously different than a trial, and the

whole purpose of an anti-SLAPP motion is to resolve matters

short of trial.” Defendant responds that he is entitled to

a prevailing party fee of $550 under ORS 20.190(2)(a)(B),

because the trial court decided issues of law and fact in

granting defendant’s anti-SLAPP motion. Specifically, defendant

points out that, in order to reach

“the decision to grant the anti-SLAPP motions in this case,

the Court made conclusions of law, inter alia, on whether the

claims ‘arose’ under ORS 31.150(2)(c) and (d), on whether

certain political advertisements were actionable as ‘false

light’ in the context of a political campaign, and whether

federal law preempted state court consideration of issues

about the size and display of federally required statements

of sponsorship on political billboards in a contest for the

U.S. Congress.”

We agree with defendant.

The text of ORS 20.190 does not require that there

be a “trial” in the sense advocated by plaintiff. Here, the

statute specifies that a prevailing party has a right to

recover fees “when judgment is given after a trial of an issue

of law or fact.” Trial of an issue of law or fact refers to the

judicial determination of law or fact in an adversarial proceeding,

which can include preliminary proceedings short of

a final trial on the merits of an entire claim. See Black’s Law

Dictionary (10th ed 2014) (A “trial” is “[a] formal judicial

examination of evidence and determination of legal claims

in an adversary proceeding”); cf. Alt v. City of Salem, 306

Or 80, 85, 756 P2d 637 (1988) (concluding that, because a

writ of review proceeding does not authorize the trial court

to decide issues of fact, no “trial” is involved). Here, the trial

court examined issues of law and fact to grant defendant’s

anti-SLAPP motion. Therefore, we conclude that the trial

court did not err when it awarded defendant a $550 prevailing

party fee under ORS 20.190(2)(a)(B).

In sum, the trial court abused its discretion when

it misapplied the relevant ORS 20.075 factors to reduce

defendant’s award of attorney fees. The trial court did not

Cite as 284 Or App 98 (2017) 111

err when it awarded defendant a $550 prevailing party fee

under ORS 20.190(2)(a)(B).

On appeal, supplemental judgment for attorney fees

vacated and remanded; on cross-appeal, affirmed.