Chinese Consol. Benevolent Ass'n v. Chin
| Decision Date | 22 December 2021 |
| Docket Number | A172078 |
| Parties | CHINESE CONSOLIDATED BENEVOLENT ASSOCIATION, an Oregon non-profit corporation, Plaintiff-Respondent, v. Gene M. CHIN, Tony Hui, Kitson Yu, and Michael Chi-Wei Chang, Defendants-Appellants. |
| Court | Oregon Court of Appeals |
Troy G. Sexton, Portland, argued the cause for appellants. Also on the briefs were Alex C. Trauman and Motschenbacher & Blattner LLP.
Gary K. Kahn, Portland, argued the cause for respondent. Also on the brief were Tiffany A. Elkins and Reeves, Kahn, Hennessy & Elkins.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
When it began, this dispute was about the fallout of an irregular corporate election. In particular, it was about who, in the aftermath, were the proper officers of plaintiff, the Chinese Consolidated Benevolent Association (CCBA). But, after the CCBA voluntarily dismissed the case under ORCP 54, it became about something else: attorney fees. Namely, does ORS 31.152(3), which provides for an award of attorney fees to "[a] defendant who prevails on a special motion to strike made under ORS 31.150," provide for an award of attorney fees to a defendant who filed a special motion to strike if the case is voluntarily dismissed for reasons unrelated to the motion before a merits adjudication of the motion? We conclude, as did the trial court, that it does not. Accordingly, we affirm.
Because this matter was voluntarily dismissed before the CCBA's claims were resolved on the merits, what appear to be a number of factual disputes about the outcome of the CCBA election have not been resolved. Acknowledging that, for purposes of this opinion, we draw the facts from the complaint.
The CCBA's 2018 biennial officer-and-director election was contentious and irregular. Due to the irregularities, it could not be certified by the accounting firm hired to administer the election. Nonetheless, defendants Yu and Hui claimed to have been elected as the CCBA's president and vice president, respectively. To celebrate, they enlisted defendants Chin and Chang to organize a banquet.
To stop them, the CCBA sued defendants. It sought a declaration that the 2018 election was null and void and that the existing officers and directors would continue in their positions until a new and valid election was held. In addition, the CCBA sought to enjoin defendants from making statements "purporting to be made on behalf of the CCBA," including representations that the election was valid and that Yu and Hui were president and vice president, and from conducting business on behalf of the CCBA.
The parties initially stipulated to a temporary restraining order. Four days before the hearing on the CCBA's motion for a preliminary injunction, defendants filed a special motion to strike under ORS 31.150, also known as an "anti-SLAPP" motion. See Handy v. Lane County , 360 Or. 605, 612 n. 4, 385 P.3d 1016 (2016) ( anti-SLAPP terminology). Then, the court held a hearing on the preliminary injunction. Concluding that CCBA was not likely to prevail in the end, it denied the request for injunctive relief, and dissolved the temporary restraining order. About two weeks after the preliminary injunction hearing, the CCBA voluntarily dismissed under ORCP 54 A(1). No hearing was held on the special motion to strike, and no ruling on its merits was made.
After the CCBA voluntarily dismissed, defendants sought attorney fees. Although the trial court had not ruled on the special motion to strike, they asserted that ORS 31.152(3) gave the court authority to award fees nonetheless. The court denied the request for fees. It concluded that the statute did not authorize an award of fees because defendants had not obtained a ruling in their favor on the merits of their motion and, further, the motion was not the cause of plaintiff's decision to dismiss the case:
"In conclusion, based upon a full consideration of the undisputed record and relevant law, the court holds that where there has not been an adjudication on the merits of a special motion to strike brought pursuant to ORS 31.150, and where evidence in the record supports Plaintiff's dismissal of the lawsuit for reasons having no relation to the pendency of the special motion to strike, the court cannot find that defendant ‘prevail[ed]’ on the special motion to strike as is contemplated in ORS 31.152(3)."
Defendants also moved for a hearing on their special motion to strike "to determine the CCBA's liability for attorney's fees under ORS 31.152," but the trial court denied that motion on the ground that the dismissal of the case had mooted the merits dispute presented by the special motion to strike.
Defendants appealed. On appeal, they contend that the trial court erred when it concluded that ORS 31.152(3) did not authorize an award of fees to them under the circumstances present in this case. Although they recognize that the text of the statute does not, on its face, plainly authorize an award of fees under these circumstances, they argue that the policy underlying the statutes authorizing special motions to strike calls for an award of fees in these circumstances because, in defendants’ view, their special motion to strike helped them achieve their "litigation objectives" by obtaining dismissal of the complaint. Alternatively, they argue that we should adopt the approaches of either Coltrain v. Shewalter , 66 Cal. App. 4th 94, 107, 77 Cal. Rptr. 2d 600, 608 (1998), or Tourgeman v. Nelson & Kennard , 222 Cal. App. 4th 1447, 1456-58, 166 Cal. Rptr. 3d 729, 737-39 (2014). Those two cases represent competing lines of California authority addressing the availability for attorney fees on special motions to strike in cases that are voluntarily dismissed before the motion is resolved on the merits. Were we to adopt the reasoning of either case, a remand would be required. The CCBA responds that the trial court's analysis was correct.
When a plaintiff voluntarily dismisses a case, ORCP 54 A(3) authorizes the court to award "any costs and disbursements, including attorney fees, provided by contract, statute, or rule." The provision, itself, does not supply a source of authority for a fee award. Jackson v. Mann , 207 Or. App. 209, 213, 140 P.3d 1165 (2006). Rather, a defendant must identify some other source of law—"contract, statute, or rule"—authorizing a fee award.
Defendants point to ORS 31.152(3) as the source of authority for fees. Whether that provision authorizes fees in these circumstances—where a plaintiff voluntarily dismisses a complaint for reasons unrelated to a pending special motion to strike—presents a question of statutory construction, making our review for "for legal error, employing the methodology described in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009)." Central Oregon LandWatch v. Deschutes County , 285 Or. App. 267, 276-77, 396 P.3d 968 (2017). Our role is to determine the meaning of the provision at issue that the enacting legislature most likely intended. State v. Robinson , 288 Or. App. 194, 198-99, 406 P.3d 200 (2017). We do so by examining the statutory "text, in context, and, where appropriate, legislative history and relevant canons of construction."
Chase v. Chase , 354 Or. 776, 780, 323 P.3d 266 (2014). In conducting that examination, we mind the legislature's instruction on how we should read its work: "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted[.]" ORS 174.010.
As noted, the precise question before us is whether ORS 31.152(3) authorizes an award of attorney fees in connection with a special motion to strike that was neither adjudicated on the merits before the voluntary dismissal of a case, nor played a role in the dismissal. In this instance, the text of the statute is dispositive. ORS 31.152(3) states that "a defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs." The statute requires two things: (1) that a defendant "prevail" and (2) that the thing the plaintiff prevailed on was a "special motion to strike." That is, it does not provide for fees for prevailing in general or for prevailing on requests for relief that are not special motions to strike. Thus, although defendants qualify as the prevailing parties on plaintiff's claims as a result of the voluntary dismissal, see ORCP 54 A(3),1 the issue for purposes of ORS 31.152(3) is whether defendants can be said to have prevailed on their special motion where, as here, they did not secure a ruling on it before the case was dismissed.
The ordinary meaning of the word "prevail" is "to gain victory by virtue of strength or superiority : win mastery : TRIUMPH ." Webster's Third New Int'l Dictionary 1797 (unabridged ed. 2002). In no sense here have defendants "triumphed" on their motion to strike. To triumph on a motion, a party ordinarily would need to secure a favorable ruling on the motion. Here, the trial court never ruled on the merits of the motion.
We acknowledge that it would not be implausible to read ORS 31.152(3) to embrace a broader conception of what it means to prevail, and do not rule that out. As the debate among the members of the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources illustrates, it would perhaps be unusual, but not unreasonable, to view a defendant whose motion was the cause for a voluntary dismissal of a complaint to have "triumphed" on the motion even without a court ruling on the merits. 532 U.S. 598, 603, 121 S. Ct. 1835, 149 L Ed 2d 855 (2001) (...
To continue reading
Request your trial