Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robinson v. DeFazio

Court of Appeals of Oregon

March 1, 2017

Art ROBINSON, Plaintiff-Respondent Cross-Appellant,
v.
Peter DEFAZIO, Defendant-Appellant Cross-Respondent, and John DOEs 1, 2, and 3; and DeFazio for Congress Committee, Defendants.

          Argued and submitted September 10, 2015

         Josephine County Circuit Court 12CV1144; Pat Wolke, Judge.

          Linda K. Williams argued the cause for appellant-cross-respondent. With her on the briefs was Daniel W. Meek.

          James L. Buchal argued the cause for respondent-cross-appellant. With him on the briefs was Murphy & Buchal LLP.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary: 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 misapplying the ORS 20.075 factors when it reduced defendant's attorney fee request.

         Held: The trial court abused its discretion when it reduced defendant's award of attorney fees because it misunderstood a significant fact-the timing of when defendant's attorney fees were incurred-and when it misapplied two ORS 20.075 factors: (1) the necessity of using Oregon's anti-Strategic Lawsuit Against Public Participation procedure and (2) the hourly rate of defendant's attorneys.

         On appeal, supplemental judgment for attorney fees vacated and remanded; on cross-appeal, affirmed.

          EGAN, J.

         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]

          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 plaintiffs 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 plaintiffs 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, 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 plaintiffs 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."

         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 P.3d 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.