Summit RWP, Inc. v. Hallin ( 2024 )

No. 591 August 28, 2024 529
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
SUMMIT RWP, INC.,
dba Summit Reconstruction and Restoration,
an Oregon corporation,
Plaintiff-Respondent,
and
Cameron ELLIS,
an individual,
Plaintiff,
v.
David HALLIN,
Defendant-Appellant,
and
Michael HALLIN,
an individual; and
Prestige NW Construction Services, LLC,
a Washington limited liability company,
Defendants.
Washington County Circuit Court
21CV20448; A180591
Andrew Erwin, Judge.
Submitted April 22, 2024.
Elizabeth Farrell filed the briefs for appellant.
Donald J. Koehler, II, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
General judgment reversed and remanded for fur-
ther proceedings consistent with this opinion; otherwise
affirmed. Supplemental judgment affirmed.
530 Summit RWP, Inc. v. Hallin
Cite as 334 Or App 529 (2024) 531
SHORR, P. J.
Defendant-employee David Hallin appeals from a
general judgment and a supplemental judgment entered after
a civil bench trial. Following that trial, the court ruled (1) for
plaintiff-employer Summit RWP, Inc. on its claim for breach
of contract, (2) for defendant on his counterclaim under ORS
652.140 for plaintiff’s failure to timely pay wages, but the
court cut its statutory penalty award to defendant and denied
defendant’s attorney fees despite defendant prevailing on the
underlying claim, and (3) for plaintiff on defendant’s second
counterclaim for breach of contract for unreimbursed work
expenses.1 Defendant raises six assignments of error. As we
explain below, we reject all of those assignments except for
defendant’s third and fourth assignments of error in which
he contends that the court erred in reducing the statutory
penalty award under ORS 652.150 and denying his petition
for attorney fees under ORS 652.200. For the following rea-
sons, we reverse and remand the general judgment for fur-
ther proceedings on defendant’s claim for a statutory penalty
for plaintiff’s failure to timely pay wages and for defendant’s
request for his attorney fees, and we affirm the supplemental
judgment regarding plaintiff’s attorney fees.
DENIAL OF DEFENDANT’S ORCP 54 B(2) MOTION
We begin by briefly addressing defendant’s first
assignment of error. Defendant argues that the trial court
erred in denying his ORCP 54 B(2) motion for involuntary
dismissal for two reasons: (1) the court erroneously applied
the directed verdict standard when ruling on that motion,
and (2) the trial court’s ruling was based on testimony that
was either inaccurate, speculative, or contradictory.
We do not address defendant’s first argument on its
merits because he did not preserve it, as required by ORAP
5.45.2 During trial, the court asked, “I take your argument
1
The trial court entered stipulated judgments of dismissal to Cameron Ellis,
owner and president of Summit, RWP, Inc., Michael Hallin (defendant’s son) in
his personal capacity, and Prestige NW Construction Services LLC. Those par-
ties are not part of this appeal.
2
ORAP 5.45(1) provides, in relevant part, “No matter claimed as error will
be considered on appeal unless the claim of error was preserved in the lower
court * * * provided that the appellate court may, in its discretion, consider a plain
error.”
532 Summit RWP, Inc. v. Hallin
to be one for directed verdict in this matter?” Defendant’s
counsel responded, “[y]es,” and offered no objection. See
State v. Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015)
(“To adequately preserve an issue, a party must provide the
trial court with an explanation of his or her objection that
is specific enough to ensure that the court can identify its
alleged error with enough clarity to permit it to consider and
correct the error immediately, if correction is warranted.”
(Internal quotation marks omitted.)). Furthermore, we do
not consider plain error review because defendant does not
request it. State v. Ardizzone, 270 Or App 666, 667, 349 P3d
597, rev den, 358 Or 145 (2015).
We also reject defendant’s second argument. The
substance of defendant’s reasoning is that, in denying the
motion, the court credited evidence that favored plaintiff
despite contradictory or competing evidence in the record.
Yet, that is precisely what we are required to do when
reviewing the denial of an ORCP 54 B(2) motion: we must
view the evidence and all reasonable inferences that can be
made from it in the light most favorable to the plaintiff to
determine whether there is sufficient evidence to establish a
prima facie case. Marlow v. City of Sisters, 281 Or App 462,
465, 383 P3d 908 (2016). In light of that standard, we con-
clude that the trial court did not err in denying the motion.
FACTS GIVING RISE TO THE DISPUTE
We turn to the facts necessary to resolve defendant’s
remaining assignments of error. “We review the trial court’s
findings of fact for any evidence to support them,” Allco
Enterprises v. Goldstein Family Living Trust, 183 Or App
328, 330, 51 P3d 1275 (2002), and we “defer to the court’s
explicit and implicit findings of fact if they are supported
by evidence in the record,” Golick v. CBS Corp., 306 Or App
202, 213, 472 P3d 778 (2020). We state the facts consistently
with that standard.
Defendant signed an employment agreement with
plaintiff that contained a nonsolicitation provision that
prohibited defendant from “[i]induc[ing], or attempt[ing]
to influence, any employee of the Company to termi-
nate employment with the Company or to enter into any
Cite as 334 Or App 529 (2024) 533
employment * * * with any * * * firm or corporation.” That
employment agreement contained no provision setting out
a bonus or commission structure, but defendant informally
received a quarterly bonus until the parties formally mod-
ified the agreement in August 2020 to include a two per-
cent quarterly bonus until January 7, 2021. Defendant also
received an employee handbook shortly after being hired by
plaintiff that contained a provision that allowed employees
to receive reimbursements for company expenses. That pro-
vision required employees to submit written reimbursement
requests within two weeks of incurring the expense.
Plaintiff terminated defendant’s employment on
April 16, 2021. Within 24 hours of being terminated, defen-
dant received a phone call on his personal cell phone from
plaintiff’s employee, Venegas. Shortly thereafter, Venegas
quit working for plaintiff and began working for defen-
dant’s son’s competing company, Prestige NW Construction
Services, LLC (Prestige). Around that time, defendant
spoke to two more of plaintiff’s then-employees, Juan Zarate
and Miguel Zarate, several times over the course of about a
month. Shortly after those exchanges, both Juan and Miguel
quit working for plaintiff and began working for Prestige. At
one point, when referring to three of plaintiff’s employees,
defendant sent a text that read, “I hired three Summit peo-
ple today because I can and not get sued over it. FUCK [the
owner and president of Summit RWP, Inc.].”
When plaintiff terminated defendant’s employment,
defendant had already earned a fourth quarter 2020 bonus
that had not been paid because of administrative staffing
issues that precluded plaintiff from calculating the amount
of the bonus. But when defendant’s counsel asked Ellis,
plaintiff’s owner and president, whether an employee that
was subject to receipt of bonuses would receive those bonuses
after termination, Ellis replied, “No?” and explained, “I feel
like if you are messing up your job so badly that you got fired
that you shouldn’t be bonused for it. And because they’re
discretionary.”
Also, after termination of employment, defendant
submitted several reimbursement requests for work-related
expenses that had been incurred as many as two years
534 Summit RWP, Inc. v. Hallin
earlier. Plaintiff’s controller later testified that employees
on occasion were reimbursed for expenses that were submit-
ted more than two weeks after the expenses were incurred.
But the controller also testified that no employees had been
reimbursed for expenses submitted as late as defendant’s—
eleven months to two years from the time that they were
incurred.
Plaintiff ultimately filed a lawsuit against defen-
dant, alleging that defendant had breached the non-solicita-
tion provision in his employment contract and intentionally
interfered with an economic relationship when he solicited
plaintiff’s employees to work for Prestige.3 Within 30 days
of the filing of the complaint, defendant sent plaintiff a
demand letter requesting $36,000 ($18,000 each for the two
unpaid quarterly bonuses) and counterclaimed for unpaid
wages under ORS 652.140.4 Defendant also counterclaimed
for breach of contract, alleging that plaintiff failed to reim-
burse him for expenses incurred during his employment.
As recounted at the outset of this opinion, the liti-
gation proceeded to a bench trial. Following that trial, the
court ruled (1) in favor of plaintiff on its claim for breach
of the non-solicitation agreement, awarding $60,912.50 in
attorney fees to plaintiff, (2) in favor of plaintiff on defen-
dant’s counterclaim for breach of contract for plaintiff’s
failure to reimburse defendant’s expenses, and (3) in favor
of defendant on his counterclaim under ORS 652.140 for
unpaid wages, but the court reduced the statutory penalty
under ORS 652.150 and denied defendant’s attorney-fee
award.
THE RECORD SUPPORTS THE TRIAL COURT’S
FINDINGS OF FACT
Turning to defendant’s second assignment of error,
he argues that the trial court erred when it made various
3 .
The trial court dismissed plaintiff’s intentional interference with an eco-
nomic relationship claim, and neither party assigns error to that decision on
appeal.
4 .
There are two quarterly bonuses in dispute, defendant’s fourth quarter
2020 bonus and his first quarter 2021 bonus. We discuss the fourth quarter
bonus further below. The trial court ruled that defendant was not entitled to
a first quarter 2021 bonus. Defendant does not develop any legal argument on
appeal regarding the first quarter bonus, so we do not address it.
Cite as 334 Or App 529 (2024) 535
findings of fact that were “unsupported by any facts on the
record and/or are directly contrary to the undisputed facts.”5
As previously noted, we review the trial court’s findings of
fact for any evidence to support them. Allco Enterprises, 183
Or App at 330.
The trial court found that defendant intended to be
bound by the employment agreement. The record reflects
that defendant signed the employment agreement, which
contained a provision that reads, in relevant part, “intend-
ing to be legally bound, the Employee and the Company
mutually promise and agree as follows.” The court also
found that defendant induced plaintiff’s employees to leave
their employment with plaintiff and to work for Prestige
instead. Defendant’s phone records show repeated contacts
with plaintiff’s then-current employees who began working
at Prestige shortly after he contacted them. Defendant’s
text communications show his contempt for plaintiff’s owner
and president and his desire to hire plaintiff’s employees
away to work for Prestige. Having reviewed the record, we
conclude that the trial court did not err because its factual
findings are supported by “any evidence” in the record.
DEFENDANT’S COUNTERCLAIM FOR EXPENSE
REIMBURSEMENT
In his fifth assignment of error, defendant contends
that the trial court erred in entering a verdict in favor of
plaintiff on defendant’s counterclaim for breach of con-
tract for unreimbursed expenses. Defendant argues that
the trial court erred as a matter of law because (1) plain-
tiff was unjustly enriched and (2) plaintiff’s conduct consti-
tuted a waiver of the employment contract and its deadline
for expense reimbursements. Defendant did not argue an
unjust enrichment theory to the trial court, so we will not
consider that argument on appeal.6 See ORAP 5.45(1) (“No
5
Defendant argues that the trial court erred by “holding that [defendant]
breached its Employment Agreement with Summit” but makes no argument con-
testing the court’s legal conclusion or reasoning. Rather, we understand defen-
dant to contest the factual findings underlying that conclusion, which we review
for any evidence. Allco Enterprises, 183 Or App at 330.
6
At the very end of closing argument, the court asked, “[I]s there a reason
why there wasn’t a claim for quantum meruit made in this case[?]” Defense coun-
sel responded, “Yeah, I guess I’m just not prepared to answer that question[.]”
536 Summit RWP, Inc. v. Hallin
matter claimed as error will be considered on appeal unless
* * * preserved in the lower court
.* * *.”); see also John Hyland Const., Inc. v. Williamsen &
Bleid, Inc., 287 Or App 466, 473, 402 P3d 719 (2017) (“Lack
of compliance with ORAP 5.45 may render a claim of error
unreviewable on appeal.”).7
As to defendant’s waiver argument, he raised that
issue during closing argument before the trial court in a
bench trial in a manner that presented the equivalent of
a motion for directed verdict, which is sufficient for our
review. Peiffer v. Hoyt, 339 Or 649, 658, 125 P3d 734 (2005).
Accordingly, we again view the evidence in the light most
favorable the nonmoving party, affording the nonmoving
party every reasonable inference that can be drawn from
that evidence. Kelley v. Washington County, 303 Or App 20,
21, 463 P3d 36 (2020).
Defendant argues that plaintiff waived the two-week
requirement for submitting reimbursement requests by reg-
ularly accepting reimbursement requests from other employ-
ees that were submitted after the two-week deadline and not
communicating to employees that the deadline was strictly
enforced. See Fisher v. Tiffin, 275 Or 437, 442, 551 P2d 1061(1976) (“[W]e believe that the plaintiff’s actions in accepting
late payments consistently * * * without ever notifying the
defendant * * * he was going to insist on payments strictly
in accordance with the contract’s terms, were sufficient to
demonstrate a waiver of the time provisions of the contract
despite the contract’s language to the contrary.”). But “[w]
hether a waiver has occurred depends on the particular cir-
cumstances of each case.” Moore v. Mutual of Enumclaw Ins.
Co., 317 Or 235, 240, 855 P2d 626 (1993); see also Widing
et al v. Jensen, Real Estate Com., 231 Or 541, 548, 373 P2d
661 (1962) (“There is, however, no absolute test for the ascer-
tainment of waiver or extension of time; such is a question
7
Defendant requests plain error review for this assignment of error.
Whatever the merits of the underlying claim, we decline to consider any claimed
error because it is not “obvious” that the trial court had to find for him on an
unjust enrichment claim that was neither alleged in the complaint nor requested
by counsel, following a specific inquiry by the court, during closing argument. See
State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990) (stating that, for an error to
be plain, the legal point must be obvious).
Cite as 334 Or App 529 (2024) 537
of fact for the determination of the court.”). The trial court
concluded that a waiver had not occurred. We agree.
“Waiver is the intentional relinquishment or aban-
donment of a known right or privilege.” Moore, 317 Or at
240. Plaintiff’s controller testified that plaintiff would occa-
sionally reimburse employees for expenses submitted past
the two-week deadline. The controller explained that plain-
tiff wanted to be “flexible and lenient with people and, you
know, be reasonable.” The controller also testified that the
two-week deadline for submitting expense reports was inte-
gral to plaintiff’s billing cycles and calculating the profit
margins (and subsequently, the bonus amounts) on each job.
The expenses defendant requested from plaintiff after ter-
mination range from eleven months to over two years old—
and were thus not factored into plaintiff’s normal billing
cycles or profit/bonus calculations. Furthermore, plaintiff’s
records indicate that it never reimbursed an expense sub-
mitted that long or anywhere near that long after the two-
week deadline. Those facts, taken together, indicate that
plaintiff might have only ever intended to use its discretion
to extend the two-week deadline in certain circumstances
not present here but not to abandon the deadline altogether.
Regardless, the issue of waiver was ultimately one of fact
for the trial court and not an issue that the trial court had
to decide in defendant’s favor. The trial court did not err in
ruling for plaintiff on defendant’s second counterclaim for
breach of contract because the court did not have to conclude
as a matter of law that plaintiff waived the two-week dead-
line for submitting expense reports.
THE STATUTORY PENALTY AWARD
Turning to defendant’s third assignment of error,
he argues that the court erred in its award of a statutory
penalty under ORS 652.150 when it calculated the penalty
for nonpayment of his fourth quarter 2020 bonus and then
reduced it to punish him for making a “wild guess” as to the
amount of the unpaid wages requested in his demand letter
to plaintiff. The court awarded defendant half of his unpaid
bonus as a penalty. It is unclear precisely how the trial court
reached that amount. It appears that the court might have
computed the statutory penalty by awarding defendant his
538 Summit RWP, Inc. v. Hallin
hourly rate at eight hours a day for each day of nonpay-
ment, then capped that award at 100 percent of the unpaid
bonus. See ORS 652.150(1) (“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”); ORS
652.150(1)(a) (“In no case shall the penalty wages or compen-
sation continue for more than 30 days from the due date[.]”).
It is undisputed that the court then cut that amount in half
after concluding that defendant failed to give reasonable
notice of the wage claim under ORS 652.150. As we discuss
below, we conclude that the trial court erred when it cut its
penalty award.
When we review the trial court’s interpretation of
a statute—as we do here—we review for legal error. Rider
v. Carranza, 306 Or App 616, 618, 475 P3d 467 (2020).
Defendant argues that there is no basis in the text of ORS
652.150 for judicial discretion to modify the penalty. We
agree. Text and context must be considered first in our stat-
utory analysis. State v. Gaines, 346 Or 160, 171, 206 P3d
1042 (2009).
ORS 652.150 provides, in part:
“(1) 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 pen-
alty 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 therefor is commenced.”
The statute further provides that “[i]n no case shall the pen-
alty wages or compensation continue for more than 30 days
from the due date.” ORS 652.150(1)(a).
The legislature’s statement that the penalty “shall”
continue indicates the legislature’s intent to not confer dis-
cretion upon the court to order a lesser amount. Friends of
Columbia Gorge v. Columbia River (S055915), 346 Or 415,
426-27, 212 P3d 1243 (2009) (“[I]n the statutory context, in
ordinary usage, ‘shall’ create[s] a mandatory duty, while
‘may’ creates only authority to act.” (Second brackets in
original; internal quotation marks omitted.)). Nor is there
Cite as 334 Or App 529 (2024) 539
any other provision under ORS 652.150 that would indicate
otherwise. Under the statute and absent any other appli-
cable exception, and the parties identify none, the penalty
shall continue “until paid or until action therefor is com-
menced” up to a maximum of thirty days.
Plaintiff cross-assigns error to the trial court’s
award of a statutory penalty to defendant, arguing that
defendant is not entitled to recover any penalty because
(1) defendant was not entitled to his fourth quarter 2020
bonus, (2) plaintiff did not “willfully” fail to pay defendant’s
2020 bonus, and (3) defendant provided no evidence to estab-
lish the due date for defendant’s 2020 bonus under ORS
652.150(1). First, the trial court found that both parties stip-
ulated that they had entered into a written modification of
the employment agreement that granted defendant a two
percent bonus until January 7, 2021, for the fourth quarter
of 2020. The record supports that finding, so we defer to the
trial court, as we must. Golik, 306 Or App at 213. Defendant
was terminated on April 16, 2021, well after the time that
he had earned his bonus.
Turning to plaintiff’s second argument, “the word
‘willful’ does not necessarily cast blame or implicate malice;
it merely indicates that the act or omission was purpose-
ful and not the product of inadvertence.” Young v. State of
Oregon, 340 Or 401, 409, 133 P3d 915 (2006). There was evi-
dence that defendant had not been paid his fourth quarter
2020 bonus at the time of his termination due to plaintiff’s
administrative difficulties. Regardless, the record supports
the trial court’s determination that plaintiff willfully or
“purposefully” withheld defendant’s bonus after his termi-
nation. Notably, plaintiff’s owner and president testified
that he believed “if you are messing up your job so badly
that you got fired that you shouldn’t be bonused for it.”
Finally, plaintiff’s argument that defendant’s
fourth quarter 2020 bonus never became due and payable
is foreclosed by ORS 652.140(1), which states that “[w]hen
an employer discharges an employee or when employment
is terminated by mutual agreement, all wages earned and
unpaid at the time of the discharge or termination become
540 Summit RWP, Inc. v. Hallin
due and payable not later than the end of the first business
day after the discharge or termination.”
We conclude that the trial court erred when it
reduced the penalty award.8
ATTORNEY FEES FOR DEFENDANT’S UNPAID
WAGES CLAIM
In defendant’s fourth assignment of error, he con-
tends that the trial court erred in denying his request for
attorney fees under ORS 652.200(2) despite prevailing on
his underlying wage claim.
ORS 652.200(2) provides:
“In any action for the collection of wages, if it is shown
that the wages were not paid for a period of 48 hours, exclud-
ing Saturdays, Sundays and holidays, after the wages
became due and payable, the court shall, upon entering
judgment for the plaintiff, include in the judgment, in addi-
tion 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 employ-
ment 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.”
Applying that statute, the court concluded that defendant
“unreasonably failed to give written notice of the wage
claim” because he made a “wild guess” as to the amount of
the unpaid wages requested in his demand letter to plaintiff
(two $18,000 payments for two unpaid bonuses).9 Defendant
argues that the trial court misconstrued ORS 652.200(2)
when it used its discretion to determine whether the content
of the notice itself was reasonable, rather than determining
8
Defendant argues that the trial court miscalculated the amount of the stat-
utory penalty altogether and contends that it should have been in the amount
of $13,846.20. As noted, we cannot tell exactly how the court determined the
amount of the penalty or the facts that went into that calculation. On remand,
the court should follow the statutory formula for determining the correct penalty
based on the record before it and, after having done so, award the full amount.
9
No one contends that the bonuses are not considered wages under the stat-
ute. See Miller v. C. C. Meisel Co., Inc., 183 Or App 148, 157, 51 P3d 650 (2002)
(wages include compensation such as a promise to pay a manager 20 percent of
the added value to the company).
Cite as 334 Or App 529 (2024) 541
whether defendant unreasonably failed to give notice at all.
Plaintiff contends that, regardless, the trial court properly
denied fees under ORS 652.200(2) because defendant will-
fully violated the employment agreement. We agree with
defendant’s interpretation of ORS 652.200(2) but remand for
further proceedings in light of plaintiff’s argument.
We review the trial court’s interpretation of a stat-
ute for legal error. State v. Urie, 268 Or App 362, 363, 341
P3d 855 (2014). Because the text of ORS 652.200(2) is clear
and unambiguous and because the Supreme Court recently
addressed its context and legislative history, a protracted dis-
cussion of the text, context, and legislative history of the stat-
ute is unnecessary to resolve the present dispute. See Gaines,
346 Or at 171-72 (explaining how we review statutory con-
struction.). Defendant argues that “the word ‘unreasonably’
is an adverb, which modifies the verb ‘fails’ in the statute”
and that the trial court “incorrectly uses ‘unreasonably’ as
an adjective to modify the word ‘notice.’ ” We recently came to
a similar conclusion in Trent v. Connor Enterprises, Inc., 300
Or App 165, 452 P3d 1072 (2019). In Trent, we rejected the
argument that the court should generally evaluate whether
notice was given “reasonably” under ORS 652.200(2) and con-
cluded instead that the statute only creates a narrow excep-
tion to mandatory attorney fees: when an employee “unrea-
sonably fail[s] to give written notice of the wage claim to
the employer before filing the action.” Id. at 173 (emphasis in
original; internal quotation marks omitted). Although here,
the trial court ruled on the reasonableness of the amount of
defendant’s requested wages rather than the timeliness of his
notice, we are constrained by the text of ORS 652.200(2)—as
we were in Trent—to construe the word “unreasonably” to
narrowly modify an employee’s failure to give written notice
of the wage claim before filing the action. See Johnson v.
O’Malley Brothers Corp., 285 Or App 804, 816, 397 P3d 554,
rev den, 362 Or 300 (2017) (“That is, by the plain language
of the statute, the failure to give written notice is immate-
rial unless that failure was also unreasonabl[e].” (Brackets in
original; internal quotation marks omitted.)).
That interpretation is corroborated by the legislative
history and context of ORS 652.200(2), which suggest that
542 Summit RWP, Inc. v. Hallin
the construction of the statute is designed to give employers
prefiling opportunities to pay unpaid wage claims. Mathis
v. St. Helens Auto Center, Inc., 367 Or 437, 446-47, 478 P3d
946 (2020) (“Thus, liability for fees under ORS 652.200(2)
arises in a context that assumes that the employer will have
had multiple prefiling opportunities to avoid incurring the
obligation to pay the employee’s attorney fees—first by pay-
ing all wages when due, next by paying the outstanding
wage obligation at least within the 48-hour grace period,
and finally even by paying the outstanding wage obligation
at any time before the employee has located an attorney and
filed an action.”).
Ultimately, the employer has the obligation to pay
an employee any unpaid wages in the amount due. An
employee may be incorrect in estimating the amount due
when giving written notice, but that does not mean the
employee unreasonably failed to give notice if the notice
was otherwise timely as provided under ORS 652.200(2):
namely, before the employee filed the action. The employer
still has the obligation to pay the wages that are, in fact,
due. See Mathis, 367 Or at 446 (“Oregon’s wage statutes also
impose obligations on employers to know what wages are
due and when those wages are payable.”). Accordingly, we
conclude that the trial court erred in denying attorney fees
to defendant on that basis because defendant’s demand let-
ter, which defendant’s attorney sent before defendant filed
his counterclaim for unpaid wages, gave plaintiff adequate
written notice under ORS 652.200(2).
As noted, plaintiff argues that the trial court cor-
rectly denied defendant’s attorney fees under a different
exception to mandated attorney fees under ORS 652.200(2):
when an employee willfully violates the contract of employ-
ment.10 Plaintiff raised that argument to the trial court and
developed that argument with evidence in the record, but
the trial court did not make any findings on that issue. So,
10
Plaintiff makes two other arguments that we summarily reject. First,
plaintiff argues that defendant was not entitled to the fourth quarter 2020 bonus
in the first instance. Second, plaintiff argues that there was no evidence to estab-
lish when the due date for payment of fourth quarter 2020 bonus occurred. We
addressed identical arguments in plaintiff’s cross-assignment to defendant’s
third assignment of error and reject them for the same reasons.
Cite as 334 Or App 529 (2024) 543
although we agree with plaintiff that a determination by
the trial court that defendant willfully violated the contract
of employment would preclude defendant from recovering
mandatory attorney fees under ORS 652.200(2), we exercise
our discretion to remand the question to the trial court so
that it may rule on whether defendant willfully violated the
employment contract in the first instance. See Sherertz v.
Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021),
rev den, 369 Or 338 (2022) (“If the argument is properly pre-
sented again on appeal and raises a question of law, we may
simply resolve it, typically remanding only if it is necessary
for the trial court to make factual findings from conflicting
evidence, exercise discretion, or the like.”).
PLAINTIFF’S ATTORNEY FEES FOR ITS BREACH OF
CONTRACT CLAIM
We now turn to defendant’s sixth assignment of
error, in which he contends that the trial court erred when it
awarded plaintiff its attorney fees under a prevailing party
attorney-fee provision in the parties’ employment agree-
ment. That award of attorney fees is reflected in the supple-
mental judgment.
In the trial court, plaintiff moved for its attorney
fees under the employment agreement, which the trial court
granted after it concluded that defendant breached that
agreement by violating the nonsolicitation clause. Defendant
first argues that plaintiff should not have prevailed on its
breach of contract claim and thus should not have been
awarded attorney fees as the prevailing attorney under
the contract. Alternatively, he argues that the amount of
fees awarded to plaintiff under that contract provision was
unreasonable. We review a party’s entitlement to attorney
fees for legal error. Makarios-Oregon, LLC v. Ross Dress-for-
Less, Inc., 293 Or App 732, 739, 430 P3d 142, adh’d to as
modified on recons, 295 Or App 449, 430 P3d 1125 (2018).
But when reviewing the amount of attorney’s fees rewarded,
we review for abuse of discretion. Id.We already concluded that the trial court did not err
in ruling for plaintiff on its breach of contract claim after the
court concluded that defendant breached the nonsolicitation
544 Summit RWP, Inc. v. Hallin
clause. We therefore assess only the reasonableness of the
amount awarded to plaintiff for its attorney fees. Having
reviewed the amount of the award for abuse of discretion in
light of defendant’s arguments and the relevant factors in
ORS 20.075, we conclude that the trial court did not abuse
its discretion in awarding $60,912.50 under the attorney-fee
section of the employment agreement.
CONCLUSION
In sum, we reject all of defendant’s assignments of
error except for his third and fourth assignments. We also
reject plaintiff’s cross-assignment of error. As to defendant’s
third assignment, we conclude that the trial court erred in
reducing the statutory penalty award under ORS 652.150
and remand for further proceedings regarding the award.
As to the fourth assignment, we conclude that the trial
court erred in denying defendant his attorney fees under
ORS 652.200(2) on that basis that it did, but we remand
the attorney-fee issue for further proceedings to determine
if defendant was not entitled to fees because he willfully vio-
lated the employment contract.
General judgment reversed and remanded for fur-
ther proceedings consistent with this opinion; otherwise
affirmed. Supplemental judgment affirmed.