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.

Mathis v. St. Helens Auto Center, Inc.

Court of Appeals of Oregon

July 31, 2019

Beau MATHIS, Plaintiff-Appellant,
v.
ST. HELENS AUTO CENTER, INC., a domestic corporation, Defendant-Respondent.

          Argued and Submitted July 12, 2017; resubmitted en banc February 14, 2019.

          Columbia County Circuit Court 14CV15683

          David A. Schuck argued the cause for appellant. Also on the briefs were Phil Goldsmith, Stephanie J. Brown, and Law Offce of Phil Goldsmith Schuck Law, LLC.

          Richard B. Myers argued the cause and fled the brief for respondent.

          Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, and Mooney, Judges.

         Case Summary: Plaintiff brought an action against his former employer for unpaid wages and penalty wages. After the matter was put into court-annexed arbitration, but before the arbitration took place, defendant offered to allow judgment in the amount of $2, 000, exclusive of attorney fees and costs, under ORCP 54 E. Plaintiff did not accept the offer. The arbitrator ultimately awarded plaintiff $3.40 in unpaid wages and $1, 383.96 in penalty wages, for a total award less than the $2, 000 that defendant had offered. Because plaintiff's ultimate award was less than the offer to allow judgment, the arbitrator applied ORCP 54 E to limit the award of attorney fees under ORS 652.200(2)-which provides for a mandatory fee award to the plaintiff on a successful wage claim-to attorney fees incurred through the offer date. Relatedly, also under ORCP 54 E, the arbitrator [298 Or.App. 648] awarded costs through the offer date to plaintiff and awarded costs after the offer date to defendant. Finally, the arbitrator included in the arbitration award an "extraordinary" arbitrator's fee of $2, 500, as ordered by the trial court. Plaintiff fled exceptions to the arbitration award, but the award was affirmed by operation of law. Plaintiff appeals the resulting judgment. In his first two assignments of error, plaintiff challenges the application of ORCP 54 E to limit the amount of his attorney fee award, arguing that ORCP 54 E is in direct conflict with ORS 652.200(2) and therefore does not apply to an attorney fee award under ORS 652.200(2), for reasons analogous to those in Powers v. Quigley, 345 Or. 432, 198 P.3d 919 (2008), and Wilson v. Tri-Met, 234 Or.App. 615, 228 P.3d 1225 (2010). Thus, plaintiff argues, he should have been awarded all his reasonable attorney fees through the arbitration, without regard to defendant's offer to allow judgment. In his third assignment of error, plaintiff challenges the amount of the arbitrator's fee, on the ground that the arbitrator's request for an extraordinary fee was untimely. Held: The Court of Appeals rejected defendant's argument that ORCP 54 E and ORS 652.200(2) conflict, concluding that it is possible, and therefore necessary, to give effect to both provisions. The court distinguished ORS 652.200(2) from the statutes at issue in Powers and Wilson on multiple grounds, including that ORS 652.200(2) does not contain any "beat the offer" language, does not provide for a window in which a defendant can avoid attorney fee liability by offering to pay a valid claim, and is not aimed at encouraging efficient settlement by incentivizing both parties to settle a valid claim for its true value. As to the arbitrator's fee, the Court of Appeals rejected that assignment, because plaintiff did not file a written exception on that issue.

         Affirmed.

         En Banc

          [298 Or.App. 649] AOYAGI, J.

         After the termination of his employment, plaintiff brought a wage action against defendant employer, which was referred to the trial court's mandatory court-annexed arbitration program. The arbitrator awarded plaintiff $3.40 in unpaid wages and $1, 383.96 in penalty wages. The arbitrator also awarded plaintiff $6, 310 in attorney fees under ORS 652.200(2), which generally entitles a successful plaintiff on a wage claim to "a reasonable sum for attorney fees." Plaintiff had requested a substantially greater fee award, but the arbitrator denied that request, largely due to the application of ORCP 54 E. That general rule of civil procedure limits the amount of a statutory fee award when-as occurred in this case-the prevailing party recovers less than the other party had voluntarily offered to pay in a qualifying offer to allow judgment. Also relying on ORCP 54 E, the arbitrator awarded $238 to plaintiff for costs incurred prior to defendant's offer, and $300.52 to defendant for costs incurred after defendant's offer.

         The trial court affirmed the arbitrator's award, over plaintiffs exceptions. On appeal of the resulting judgment, plaintiff argues that the trial court erred. Analogizing ORS 652.200(2) to the statues at issue in Powers v. Quigley, 345 Or. 432, 198 P.3d 919 (2008), and Wilson v. Tri-Met, 234 Or.App. 615, 228 P.3d 1225, rev den, 348 Or. 669 (2010), plaintiff argues that fee awards on wage claims are exempt from the application of ORCP 54 E. Plaintiff also challenges the trial court's allowance of an extraordinary fee to the arbitrator, arguing that the arbitrator's request for an extraordinary fee was untimely. For the reasons that follow, we affirm.

         FACTS

         Plaintiff worked as a service advisor at defendant's automotive dealership. Plaintiffs compensation included base pay, commissions, and bonuses. Defendant terminated plaintiffs employment in April 2014. On October 7, 2014, plaintiffs attorney sent a wage claim notice to defendant, which defendant received.[1] The notice asserted that plaintiff had worked an average of five hours of unpaid overtime each [298 Or.App. 650] week for two-and-a-half years, that plaintiff had not been timely paid all wages due at termination, and that defendant owed plaintiff unpaid wages and penalty wages in an unspecified amount.

         On October 21, plaintiff filed a complaint in the trial court, asserting a claim for unpaid overtime and a claim for failure to pay all wages due at termination. On November 26, plaintiff filed an amended complaint, in which he dropped his overtime claim. Plaintiff continued to pursue his claim for failure to pay all wages due at termination, seeking "[u]npaid wages in an amount to be determined" and approximately $4, 152 in penalty wages under ORS 652.150. In December 2014, the trial court referred the case to its mandatory court-annexed arbitration program.

         On February 4, 2015, defendant offered to allow judgment for $2, 000, exclusive of attorney fees and costs. That is, under ORCP 54 E, defendant offered to stipulate to a judgment in plaintiffs favor in the amount of $2, 000, plus plaintiffs reasonable attorney fees and costs incurred to date. Plaintiff did not accept the offer.

         An arbitration hearing was held on May 6, 2015. Thereafter, the arbitrator awarded plaintiff $3.40 of unpaid wages, based on a commission miscalculation, and $1, 383.96 in penalty wages under ORS 652.150, based on defendant failing to pay plaintiff for unused vacation time until two weeks after his termination. As for attorney fees, plaintiff requested approximately $62, 500, pursuant to ORS 652.200(2). The arbitrator awarded $6, 310. Most of the difference between the requested and awarded amount of attorney fees was attributable to the arbitrator's application of ORCP 54 E. Applying that rule, the arbitrator limited plaintiffs award to fees incurred through February 4, 2015, because defendant had made an offer of judgment on that date in the amount of $2, 000 (exclusive of fees and costs), which was more than the $1, 387.36 (exclusive of fees and costs) that the arbitrator had subsequently awarded to plaintiff.[2] As for costs, the arbitrator also applied ORCP 54 [298 Or.App. 651] E, awarding costs to plaintiff through February 4, 2015, later determined to be $238, and awarding costs to defendant after February 4, 2015, later determined to be $300.52.

         The arbitrator then filed a motion with the trial court for an extraordinary arbitrator's fee of $2, 500, based on Columbia County Circuit Court Supplemental Local Rule (SLR) 13.121. Plaintiff objected to the motion as untimely, arguing that SLR 13.121 provides for such a request to be made before commencement of the arbitration hearing. After hearing, the trial court granted the motion and allowed the extraordinary fee of $2, 500.

         In October 2015, the arbitrator filed the arbitration award with the trial court. That award reflected the arbitrator's decisions on the merits, attorney fees, and costs, and the trial court's ruling on the arbitrator's fee. Neither party requested trial de novo, as was available under ORS 36.425(2). However, plaintiff filed written exceptions to the attorney fee and cost awards, as permitted by ORS 36.425(6), challenging the arbitrator's application of ORCP 54 E. Twenty days later, the arbitrator's award was affirmed by operation of law. See ORS 36.425(6) ("If the judge fails to enter a decision on the award within 20 days after the filing of the exceptions, the award of attorney fees and costs shall be considered affirmed."). The trial court entered a general judgment, reflecting the principle award of $1, 387.36 to plaintiff, an attorney fee award of $6, 310 to plaintiff, a cost award of $238 to plaintiff, a cost award of $300.52 to defendant, and the division of the $2, 500 arbitrator's fee between the two parties.

         PLAINTIFF'S APPEAL

         Plaintiff appeals the general judgment, raising three assignments of error. In his first assignment of error, plaintiff argues that the trial court erred by denying his exception to the arbitrator's application of ORCP 54 E to limit plaintiffs award of attorney fees and costs to those incurred through February 4, 2015. In his second assignment of error, plaintiff argues that the trial court erred by denying his exception to the arbitrator's application of ORCP 54 E to award costs to defendant for the period after February 4, 2015. In his third assignment of error, plaintiff [298 Or.App. 652] argues that the trial court erred in granting the arbitrator's motion for an extraordinary fee.

         ARBITRATOR'S FEE

         We begin with plaintiffs third assignment of error, as our discussion of that assignment is brief. When an arbitration award is filed under ORS 36.425(1) and no one requests trial de novo under ORS 36.425(2)(a), the judgment entered by the trial court based on the arbitration award generally is not appealable. ORS 36.425(3). We have recognized an exception to that general rule. If a party does not request trial de novo but does file "written exceptions directed solely to the award or denial of attorney fees or costs," ORS 36.425(6), we have held that the party may appeal the judgment for the purpose of challenging the trial court's ruling on the exceptions, Deacon v. Gilbert, 164 Or.App. 724, 726, 995 P.2d 557 (2000). The appeal is limited "solely to the court's disposition of the exception[s]." Id. at 731. "

         Here, plaintiff challenges the amount of the arbitrator's fee. An arbitrator's fee may be awarded as a "cost" in the arbitration award, pursuant to UTCR 13.120(6), and that is what occurred in this case. We therefore assume without deciding that, under ORS 36.425(6), plaintiff could have filed a written exception to that cost in the arbitration award and that, under Deacon, we could have reviewed a denial of that exception. But plaintiff did not file a written exception to that portion of the arbitration award. Plaintiff had opposed the arbitrator's original motion requesting an extraordinary fee; however, in his written exceptions to the arbitration award, he was silent regarding the arbitrator's fee. Although the former opposition may have satisfied preservation principles, a written exception was necessary for appealability under ORS 36.425(6). See Deacon, 164 Or.App. at 731 (limiting appeal under ORS 36.425(6) "solely to the court's disposition of the exceptions"). We therefore reject the third assignment of error.

         ATTORNEY FEES AND COSTS

         Plaintiffs first and second assignments of error both turn on the application of ORCP 54 E in awarding [298 Or.App. 653] attorney fees and costs under ORS 652.200(2), so we address those assignments together, which is also how the parties briefed them. As to both assignments, plaintiff argues that the trial court erred in denying his exceptions because the arbitrator should not have applied ORCP 54 E when awarding fees and costs under ORS 652.200(2). Relying on Powers and Wilson, plaintiff asserts that ORCP 54 E does not apply to fee awards on wage claims, because ORS 652.200(2) and ORCP 54 E are irreconcilable, the former is more specific, and the former therefore controls. Defendant counters that ORS 652.200(2) is different from the statutes at issue in Powers and Wilson and does not conflict with ORCP 54 E. Defendant argues that the arbitrator properly applied ORCP 54 E in awarding fees and costs under ORS 652.200(2) and that the trial court correctly rejected plaintiffs exceptions.

         We review a trial court's judgment affirming an arbitrator's determination of attorney fees and costs for errors of law. Rivera-Martinez v. Vu, 245 Or.App. 422, 428, 263 P.3d 1078, rev den, 351 Or. 318 (2011). Whether ORS 652.200(2) and ORCP 54 E are in conflict, such that the latter does not apply in awarding fees and costs under the former, is a question of law.

         The dispute in this case turns on the relationship between ORS 652.200(2) and ORCP 54 E. In construing statutes, "where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all." ORS 174.010; see also McLain v. Lafferty, 257 Or. 553, 558, 480 P.2d 430 (1971) (that is a "cardinal rule of statutory construction"). However, "if two statutes are inconsistent," such that it is not possible to give effect to both, "the more specific statute will control over the more general one." Powers, 345 Or at 438.

         We begin our analysis with ORCP 54 E, a general rule of civil procedure. ORCP 54 E provides that, if a party against whom a claim is asserted makes an offer to allow judgment, the claimant does not accept that offer, and the claimant fails to obtain a judgment more favorable than the amount of the offer, the claimant "shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred [298 Or.App. 654] after the date of the offer." ORCP 54 E(3). That principle has been part of our state law in some form for over 150 years. See Powers, 345 Or at 436, 443 (identifying former ORS 17.055 (1953), repealed by Or Laws 1979, ch 284, § 199, as the predecessor to ORCP 54 E); Colby v. Larson, 208 Or. 121, 125, 297 P.2d 1073 (1956) ("[ORS 17.055] has been a part of the law of this state since 1862." (Citing General Laws of Oregon, Civ Code, ch VI, title I, § 511, p 276 (Deady 1845-1864).)). The current iteration, ORCP 54 E(1), allows an offer of judgment to be made "at any time up to 14 days prior to trial." Prior versions have allowed offers of judgment to be made until 10 days before trial, until 3 days before trial, or at any time before trial. See ORCP 54 E(1) (2007) ("at any time up to 10 days prior to trial"); ORCP 54 E (1981) ("at any time up to three days prior to trial"); ORCP 54 E (1979) ("at any time prior to trial"); Hammond v. N. P. R. R. Co., 23 Or. 157, 158, 31 P 299 (1892) ("at any time before trial" under the Codes and General Laws of Oregon, ch VI, title I, § 520 (Hill 2d ed 1892)).

         On its face, ORCP 54 E applies to all civil cases in which attorney fees are available to the prevailing party, i.e., all cases involving a statutory or contractual right to attorney fees. In Powers, however, the Supreme Court recognized a situation in which ORCP 54 E does not apply to a statutory fee award: when the specific statute providing for attorney fees is in direct conflict with ORCP 54 E, such that applying ORCP 54 E would defeat the statute's core purpose. Powers, 345 Or at 443. Because plaintiffs first and second assignments of error depend entirely on analogizing this case to Powers and our subsequent decision in Wilson, we describe Powers and Wilson in some detail.

         Powers involved an attorney fee award under ORS 20.080(1) (2005), amended by Or Laws 2009, ch 487, § 1, 3. That statute provided for a fee award to the plaintiff in a small-claims tort action if the plaintiff made a written demand on the defendant at least 10 days before commencing the action and the defendant did not offer to pay, prior to commencement of the action, an amount equal to or greater than the amount that the plaintiff was ultimately awarded. Powers, 345 Or at 437. Specifically, the statute stated:

[298 Or.App. 655] "In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $5, 500 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, not less than 10 days before the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 10 days after the transfer of the action under ORS 46.461. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the ...

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.