Date: 03-01-2017

Case Style: Art Robinson v. Peter DeFazio

Case Number: A156582

Judge: Egan

Court: Oregon Court of Appeals on appeal from the Circuit Court, Josephine County

Plaintiff's Attorney: James L. Buchal

Defendant's Attorney: Linda K. Williams

Description: 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
1 In defendant’s second assignment of error, he contends that the trial court
erred as a matter of law by failing to supply findings sufficient for appellate
review. We conclude that the trial court’s findings in the letter opinion addressing
attorney fees were sufficient under McCarthy v. Oregon Freeze Dry, Inc., 327
Or 84, 96, 957 P2d 1200, modified on recons, 327 Or 185 (1998). Thus, we reject
defendant’s second assignment of error without further discussion.
2 In plaintiff’s first assignment of error on cross-appeal, he contends that the
trial court erred in awarding a prevailing party fee under ORS 20.190(2)(a)(A).
In plaintiff’s second assignment of error on cross-appeal, he contends that “the
trial court’s conclusion that a dismissal on any basis could create an anti-SLAPP
entitlement to fees was incorrect.” We reject both of those assignments of error
without discussion.
3 Under the anti-SLAPP statute, a defendant must establish a prima facie
case that the plaintiff’s claims arose out of statements, documents, or conduct,
as described in ORS 31.150(2). If the defendant makes that prima facie showing,
then “the burden shifts to the plaintiff in the action to establish that there is a
probability that the plaintiff will prevail on the claim by presenting substantial
evidence to support a prima facie case.” ORS 31.150(3). “If the plaintiff meets
[that] burden, the court shall deny the motion.” ORS 31.150(3). See Handy v. Lane
County, 360 Or 605, 385 P3d 1016 (2016) (explaining that “the plaintiff must submit
sufficient evidence from which a reasonable trier of fact could find that the
plaintiff met its burden of production”).
Cite as 284 Or App 98 (2017) 101
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 plaintiff’s 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
plaintiff’s 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,
102 Robinson v. DeFazio
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 plaintiff’s 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.”
Cite as 284 Or App 98 (2017) 103
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 P3d 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 factors enumerated
in ORS 20.075. ORS 20.075 provides, in pertinent part:
“(1) A court shall consider the following factors in
determining whether to award attorney fees in any case
in which an award of attorney fees is authorized by statute
and in which the court has discretion to decide whether to
award attorney fees:
“* * * * *
104 Robinson v. DeFazio
“(b) The objective reasonableness of the claims and
defenses asserted by the parties.
“(c) The extent to which an award of an attorney fee
in the case would deter others from asserting good faith
claims or defenses in similar cases.
“(d) The extent to which an award of an attorney fee in
the case would deter others from asserting meritless claims
and defenses.
“(e) The objective reasonableness of the parties and
the diligence of the parties and their attorneys during the
proceedings.
“(f) The objective reasonableness of the parties and
the diligence of the parties in pursuing settlement of the
dispute.
“(g) The amount that the court has awarded as a prevailing
party fee under ORS 20.190.
“(h) Such other factors as the court may consider
appropriate under the circumstances of the case.
“(2) A court shall consider the factors specified in subsection
(1) of this section in determining the amount of an
award of attorney fees in any case in which an award of
attorney fees is authorized or required by statute. In addition,
the court shall consider the following factors in determining
the amount of an award of attorney fees in those
cases:
“(a) The time and labor required in the proceeding,
the novelty and difficulty of the questions involved in the
proceeding and the skill needed to properly perform the
legal services.
“* * * * *
“(c) The fee customarily charged in the locality for
similar legal services.
“* * * * *
“(g) The experience, reputation and ability of the
attorney performing the services.
“* * * * *
“(3) In any appeal from the award or denial of an
attorney fee subject to this section, the court reviewing the
Cite as 284 Or App 98 (2017) 105
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.
“(4) Nothing in this section authorizes the award of an
attorney fee in excess of a reasonable attorney fee.”
On appeal, defendant contends that, instead of
addressing the pertinent ORS 20.075(2) factors, the trial
court relied upon unlawful factors in reducing defendant’s
requested attorney fee award by 75 percent. Defendant
asserts that the following factors the trial court relied on
were unlawful: (1) the timing of the anti-SLAPP motion,
which was filed after the election; (2) the necessity of using
the anti-SLAPP motion procedure; and (3) the deterrent
effect of an attorney fee award. We reject defendant’s argument
that the factors the trial court relied on were unlawful.
Those factors were lawful considerations under ORS
20.075(1)(b), (c), (d), and (e):
“(b) The objective reasonableness of the claims and
defenses asserted by the parties.
“(c) The extent to which an award of an attorney fee
in the case would deter others from asserting good faith
claims or defenses in similar cases.
“(d) The extent to which an award of an attorney fee in
the case would deter others from asserting meritless claims
and defenses.
“(e) The objective reasonableness of the parties and
the diligence of the parties and their attorneys during the
proceedings.”
Additionally, as plaintiff points out, ORS 20.075(1)(h) provides
that the trial court may consider “other factors as the
court may consider appropriate under the circumstances of
the case” and therefore the trial court did not rely on impermissible
factors.
To the extent that defendant contends that the trial
court abused its discretion by misapplying the above statutory
factors, we agree with defendant that the trial court
abused its discretion with respect to some of those factors.
First, the trial court misapplied ORS 20.075(1)(b) and (e)
106 Robinson v. DeFazio
in considering the necessity of using the anti-SLAPP procedure.
As discussed above, in considering the necessity of
using the anti-SLAPP procedure, the trial court stated:
“[B]efore the vast majority of attorney fees in this case
were expended, defendant had a clear signal from this
Court that plaintiff’s 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.”
Defendant contends that the trial court was incorrect in its
assumption that, before the “vast majority” of the attorney
fees were expended, defendant had a clear signal that plaintiff’s
claims were preempted by federal law when the trial
court issued its letter opinion denying plaintiff’s request for
discovery based on federal preemption. Defendant asserts,
and presented evidence to the trial court, that roughly 49
percent of defendant’s attorneys’ time was expended before
the trial court issued its letter opinion on the discovery issue.
Thus, the trial court misunderstood a significant fact—the
timing of when defendant’s attorney fees were incurred—
when it significantly reduced defendant’s requested attorney
fees.
Moreover, the trial court appears to have reduced
the amount of attorney fees because defendant used the
anti-SLAPP procedure instead of a procedure that would
not have entitled defendant to fees. The trial court necessarily
recognized that defendant’s use of the anti-SLAPP
procedure was permissible, because the trial court awarded
attorney fees to defendant based on the anti-SLAPP statute.
The trial court reduced defendant’s attorney fees based, in
part, on defendant’s use of a permissible procedure. Indeed,
it was permissible and reasonable for defendant to file an
anti-SLAPP motion under ORS 31.150(2)(c) in response to
plaintiff’s complaint because plaintiff’s complaint directly
implicated that statute. To the extent that the trial court
reduced the amount of attorney fees based on defendant
using the anti-SLAPP procedure, that was an impermissible
application of ORS 20.075(1)(b) and (e). Under those
factors, the trial court is directed to consider the objective
Cite as 284 Or App 98 (2017) 107
reasonableness of the claims and defenses asserted by the
parties and the parties’ attorneys in the proceeding. Those
factors do not provide a mechanism to reduce requested fees
based on the trial court’s subjective estimation that a different
procedure to obtain a dismissal should have been used.
We note that the trial court’s consideration of defendant’s
pursuit of his anti-SLAPP motion was not solely
addressed to the permissibility or reasonableness of defendant’s
use of that procedure. Rather, the trial court was also
addressing what it considered to be excessive litigation on
behalf of defendant, in light of the legal issues presented
and the fact that the election had already concluded. That
consideration is a permissible one under ORS 20.075(1)(e).
What was not permissible and an abuse of the court’s discretion
was for the court to, in effect, punish defendant for
choosing a reasonable dismissal procedure that entitled him
to obtain attorney fees.
Next, we turn to whether the trial court misapplied
the remaining ORS 20.075(2) factors to determine the attorney
fees awarded to defendant. We address only defendant’s
contention that the trial court failed to lawfully evaluate an
hourly rate for defendant’s attorneys. We reject defendant’s
remaining arguments without discussion. Plaintiff responds
that the trial court adequately analyzed the hourly rate of
defendant’s attorneys in determining a reasonable amount
of attorney fees to award.
As discussed above, ORS 20.075(2) provides, as relevant,
that the trial court shall consider:
“(a) The time and labor required in the proceeding,
the novelty and difficulty of the questions involved in the
proceeding and the skill needed to properly perform the
legal services.
“* * * * *
“(c) The fee customarily charged in the locality for
similar legal services.
“* * * * *
“(g) The experience, reputation and ability of the
attorney performing the services.”
108 Robinson v. DeFazio
In considering the hourly rate of defendant’s attorneys,
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 discussed the “novelty and difficulty” of this case by
stating that “there is nothing especially complex about this
proceeding that justifies” Williams’s hourly rate, but did not
otherwise indicate what would be a reasonable rate for the
litigation or the actual hourly rate it relied on to determine
the attorney fee award.
Additionally, the trial court does not acknowledge
the hourly rate of defendant’s other two attorneys—Meek
and Adams. Defendant included information about the
attorneys’ education and prior experience, and their hourly
billing rates of $250 per hour for Adams, $350 per hour for
Meek, and $350 per hour and $150 per hour for Williams.
Nonetheless, the court reduced defendant’s requested fees
based, in part, on its own estimation that defendant could
have found less costly counsel in Southern Oregon. Defendant
was not required to employ less costly local counsel to litigate
the case to be entitled to a reasonable award of attorney
fees. The evidence submitted by defendant established
that his attorneys had reasonable hourly rates for Oregon.
Consequently, we conclude that the trial court abused its
discretion when it reduced defendant’s requested attorneys
fees based on a finding that Williams’s hourly rates were
too high after concluding that less-costly attorneys were
available in Southern Oregon, and when it failed to consider
defendant’s other attorneys’ hourly rates.
Because the trial court abused its discretion when it
misapplied the necessity of using the anti-SLAPP procedure
and the hourly rate of defendant’s attorneys, we vacate the
trial court’s award of attorney fees. See Grisby v. Progressive
Preferred Ins. Co., 233 Or App 210, 222, 225 P3d 101 (2010)
(“[A] court’s discretionary authority to reduce requested
attorney fees that are otherwise reasonable, * * * is subject
to principled constraints. In particular, there must be
a rational nexus between the [ORS 20.075] factor invoked,
and its underlying circumstances, and the amount of the
Cite as 284 Or App 98 (2017) 109
reduction.”). On remand, the trial court should consider, as
discussed in this opinion, the timing of the accrual of defendant’s
attorney fees, defendant’s objectively reasonable use
of the anti-SLAPP procedure, and the hourly rate of all of
defendant’s attorneys. Because we vacate and remand the
attorney fee award on the above bases we do not address
defendant’s argument that the trial court abused its discretion
when it preemptively denied “any further requests for
fees.” We reject defendant’s additional arguments on appeal
without discussion.
We turn to plaintiff’s cross-appeal. Plaintiff contends
that the trial court erred in awarding defendant
a $550 prevailing party fee under ORS 20.190(2)(a)(B).
Instead, plaintiff asserts that the trial court should have
awarded defendant a lower prevailing party fee under ORS
20.190(2)(a)(A).
ORS 20.190 sets out amounts recoverable by a prevailing
party. ORS 20.190(2) (2012) provided, at the time of
this litigation:
“In lieu of the prevailing party fee provided for in subsection
(1) of this section, in any civil action or proceeding
in which recovery of money or damages is sought, a prevailing
party who has a right to recover costs and disbursements
also has a right to recover, as a part of the costs and
disbursements, the following additional amounts:
“(a) In a circuit court:
“(A) When judgment is given without trial of an issue
of law or fact, $275; or
“(B) When judgment is given after trial of an issue of
law or fact, $550.”4
(Emphasis added.)
Plaintiff argues that, because judgment was given
without a “trial,” the trial court did not “try” an issue of law
or fact in deciding the anti-SLAPP motions, thus the trial
4 The amount of the prevailing party fees were raised in 2013 by the legislature
from $550 to $575 for fees “after trial of an issue of law or fact,” and from
$275 to $300 for “judgment given without trial of an issue of law or fact.” Or Laws
2013, ch 685, § 44.
110 Robinson v. DeFazio
court erred in awarding a $550 prevailing party fee under
ORS 20.190(2)(a)(B). Plaintiff asserts that “a preliminary
motion ruling is obviously different than a trial, and the
whole purpose of an anti-SLAPP motion is to resolve matters
short of trial.” Defendant responds that he is entitled to
a prevailing party fee of $550 under ORS 20.190(2)(a)(B),
because the trial court decided issues of law and fact in
granting defendant’s anti-SLAPP motion. Specifically, defendant
points out that, in order to reach
“the decision to grant the anti-SLAPP motions in this case,
the Court made conclusions of law, inter alia, on whether the
claims ‘arose’ under ORS 31.150(2)(c) and (d), on whether
certain political advertisements were actionable as ‘false
light’ in the context of a political campaign, and whether
federal law preempted state court consideration of issues
about the size and display of federally required statements
of sponsorship on political billboards in a contest for the
U.S. Congress.”
We agree with defendant.
The text of ORS 20.190 does not require that there
be a “trial” in the sense advocated by plaintiff. Here, the
statute specifies that a prevailing party has a right to
recover fees “when judgment is given after a trial of an issue
of law or fact.” Trial of an issue of law or fact refers to the
judicial determination of law or fact in an adversarial proceeding,
which can include preliminary proceedings short of
a final trial on the merits of an entire claim. See Black’s Law
Dictionary (10th ed 2014) (A “trial” is “[a] formal judicial
examination of evidence and determination of legal claims
in an adversary proceeding”); cf. Alt v. City of Salem, 306
Or 80, 85, 756 P2d 637 (1988) (concluding that, because a
writ of review proceeding does not authorize the trial court
to decide issues of fact, no “trial” is involved). Here, the trial
court examined issues of law and fact to grant defendant’s
anti-SLAPP motion. Therefore, we conclude that the trial
court did not err when it awarded defendant a $550 prevailing
party fee under ORS 20.190(2)(a)(B).
In sum, the trial court abused its discretion when
it misapplied the relevant ORS 20.075 factors to reduce
defendant’s award of attorney fees. The trial court did not
Cite as 284 Or App 98 (2017) 111
err when it awarded defendant a $550 prevailing party fee
under ORS 20.190(2)(a)(B).

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

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