and submitted August 2, 2019
County Circuit Court 17CV02841 Charles D. Carlson, Judge.
A. Schuck argued the cause for appellant. Also on the briefs
were Stephanie J. Brown, Karen A. Moore, and Schuck Law, LLC.
Gregory T. Lusby argued the cause for respondent. Also on the
brief were Ariana Denley and Arnold Gallagher P.C.
Armstrong, Presiding Judge, and Egan, Chief Judge, and
Aoyagi, Judge. [*]
Summary: In this wage action, plaintiff accepted an offer to
allow judgment in the amount of $2, 500, resulting in a
general judgment in plaintiff's Plaintiff subsequently
requested an award of attorney fees and costs, pursuant ORS
652.200(2) and 29 USC § 216(b). The trial court awarded
costs, but attorney fees on the basis that plaintiff had
acted unreasonably and in bad in the litigation and therefore
was not entitled to an award under either In denying attorney
fees under ORS 652.200(2), the court also relied on
plaintiff's attorney having not given adequate notice of
plaintiff's claim before an action. Plaintiff appeals the
supplemental judgment, challenging the of attorney fees.
Held: The trial court erred in concluding that plaintiff
entitled to attorney fees under either statute. Under the
terms of both plaintiff is entitled to an award of attorney
fees, although the trial court will discretion on remand in
deciding a “reasonable” amount to award. Reversed
Or.App. 166] AOYAGI, J.
brought this wage action against defendant, her former
employer, under state and federal law. About ten months after
plaintiff filed her original complaint, defendant made an
offer to allow judgment in the amount of $2, 500, pursuant to
ORCP 54 E, which plaintiff accepted, resulting in a
stipulated general judgment. Plaintiff thereafter requested
attorney fees and costs under ORS 652.200(2) and 29 USC
§ 216(b). The trial court awarded costs, but it denied
attorney fees on the basis that plaintiff had "acted
unreasonably and in bad-faith" in the litigation and
therefore was not entitled to an award under either statute.
On appeal, plaintiff challenges the denial of attorney fees.
Because we agree with plaintiff that the trial court
misconstrued the fee statutes, we reverse and remand for
relevant facts are minimal and largely procedural. Historical
facts are stated consistently with unchallenged factual
findings by the trial court.
worked for defendant until November 2016, when her employment
was terminated. On January 18, 2017, plaintiffs counsel
notified defendant of a $511.87 wage deficiency. A week
later, on January 25, plaintiff filed a complaint in the
circuit court alleging a state wage claim, which she later
amended to add a federal wage claim. On January 27, without
knowledge of the complaint, defendant mailed a check to
plaintiff in the amount of $1, 044.74. Plaintiff did not cash
the check and, on January 30, authorized her attorney to
proceed with the litigation. On March 20, defendant's
counsel initiated settlement discussions with plaintiffs
counsel, which continued, unsuccessfully, until November 14.
November 14, defendant made an offer to allow judgment
pursuant to ORCP 54 E. See ORCP 54 E (limiting
attorney fees if a party does not accept a qualifying
pretrial offer and then recovers less than the offer amount
at trial). Specifically, defendant offered to allow judgment
in plaintiffs favor "in the sum of $2, 500.00 to resolve
all claims, [300 Or.App. 167] including counterclaims, with
costs, disbursements and/or attorney fees to be determined by
the Court per ORCP 68." Plaintiff accepted the offer.
The trial court entered a stipulated general judgment,
awarding $2, 500 to plaintiff and dismissing defendant's
counterclaims. As to costs, disbursements, and attorney fees,
the general judgment states, "Yes, to be determined
pursuant to ORCP 68."
entry of the general judgment, plaintiff filed a statement of
attorney fees and costs, seeking approximately $45, 000 in
fees and $733 in costs. The trial court ultimately awarded
the requested costs, but it denied attorney fees on the basis
that plaintiff had acted unreasonably and in bad faith. As
relevant to the denial of fees, the trial court adopted
written findings and conclusions, describing the history of
the litigation and culminating with the following paragraph:
"Pursuant to ORS 652.200(2) and 29 USC § 216(b),
the Plaintiff has acted unreasonably and in bad-faith
resulting in the Plaintiff not being entitled to an award of
attorney fees * * * because Plaintiff failed to comply with
the notice requirements,  moved forward filing a suit on a theory
that the Plaintiff had a prior violation of ORS 652.140 in
the previous year when that was not true, [and] failed to
accept the timely tendered check in the amount $1044.74 which
would have amply covered the Plaintiffs claim especially with
the Plaintiff subsequently acknowledging in court filings
that her wage claim totaled just $266.73 while Defendant
acknowledged that any such wage computations errors were
De Minimis and totaled only ...