Johnny R. Johnson v. O'Malley Brothers Corporation

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.

Award of attorney fees reversed and remanded; otherwise

affirmed.