and submitted September 10, 2015
County Circuit Court 12CV1144; Pat Wolke, Judge.
K. Williams argued the cause for appellant-cross-respondent.
With her on the briefs was Daniel W. Meek.
L. Buchal argued the cause for respondent-cross-appellant.
With him on the briefs was Murphy & Buchal LLP.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
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.
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
appeal, supplemental judgment for attorney fees vacated and
remanded; on cross-appeal, affirmed.
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. As explained below, we conclude that the
trial court abused its discretion when it reduced
defendant's award of attorney fees. Accordingly, we
vacate and remand on appeal.
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
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
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).
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.
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.
trial court awarded defendant $15, 000 in attorney fees under
ORS 31.152(3). In a letter opinion, the trial court
"[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."
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."
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.
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).
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 ...