Dosanjh v. Namaste Indian Rest., LLC

• Decision Date: 24 June 2015
• Docket Number: 111114861,A153541.
• Citation: 353 P.3d 1243,272 Or.App. 87
• Parties: Navroop DOSANJH, Plaintiff–Appellant, v. NAMASTE INDIAN RESTAURANT, LLC, a limited liability company, Defendant–Respondent.
• Court: Oregon Court of Appeals

272 Or.App. 87

353 P.3d 1243

Navroop DOSANJH, Plaintiff–Appellant

v.NAMASTE INDIAN RESTAURANT, LLC, a limited liability company, Defendant–Respondent.

111114861

A153541.

Court of Appeals of Oregon.

Submitted Feb. 11, 2015.

Decided June 24, 2015.

James W. Molle, Wilsonville, argued the cause and filed the briefs for appellant.

Steven C. Burke, Beaverton, argued the cause for respondent. With him on the brief was Case & Dusterhoff, LLP.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

Opinion

FLYNN, J.

Plaintiff, Navroop Dosanjh, brought a wage claim against defendant, Namaste Indian Restaurant, which brought a counterclaim for conversion. A jury returned verdicts for defendant on both the claim and counterclaim, and plaintiff appeals from the judgment. We reject without written discussion plaintiffs assignments of error to the trial court's denial of her motion for a directed verdict and motion for a judgment notwithstanding the verdict on the conversion counterclaim. We address plaintiffs assignment of error to the trial court's failure to give two of plaintiff's requested jury instructions pertinent to the wage claim. We conclude that plaintiff preserved at least one of her instructional challenges and that the trial court erred when it refused to give that instruction. Because we also conclude that the error substantially affected plaintiff's rights, we reverse and remand for a new trial on the wage claim

Plaintiff began work for defendant on November 20, 2009. At that time, the restaurant was co-owned by her husband and Harjinder Chand, who is now the sole owner. Plaintiff performed a variety of hostess and waitress duties at the restaurant. Plaintiff presented evidence that she worked more than 70 hours per week from November 2009 through March 2010 and then about 60 hours per week until August 2010. After taking several months off, plaintiff returned to work in December 2010, from which point she was paid by checks reflecting an hourly wage of $15.63. Plaintiff stopped working in April 2011. She claimed defendant did not pay her wages for 2,673 hours that she worked from November 2009 through August 2010.

At some point, business disputes arose between the co-owners, and, in November 2010, one attempt to resolve the disputes resulted in a check on the restaurant account being made out to plaintiff for the amount of $22,453.20. Plaintiff testified that the check followed a request that she write down the hours she worked from November 2009 through August 2010. Plaintiff presented evidence that there was never enough money in defendant's bank account to cover the check, and it is undisputed she never cashed the check. The parties disputed the significance of the check; defendant claims the check was part of a larger attempt to resolve disputes between the co-owners and not meant to be wages for plaintiff, while plaintiff claims the check represents an admission that she was owed wages. Regardless, there is no dispute that the check was written to plaintiff and signed by Chand.

Defendant argued that it did not owe plaintiff wages because her husband had paid her for that work, “under the table.” Defendant also filed a counterclaim for conversion and presented evidence that plaintiff and her husband both misappropriated cash from the restaurant. Chand testified that he estimated plaintiff misappropriated “[a]pproximately a hundred thousand dollars or so within a year or so.”

At trial, plaintiff offered the following special jury instructions in writing:

“Special Jury Instruction No. 5 : Employer Must Pay with Valid Form of Payment

“It is the employer's responsibility to pay its employees wages due with a valid form of payment. The payment must be payable in cash on demand [at] some bank or other established place of business, where a sufficient amount of funds have been provided and are, or will be, available for payment of the instrument when due. ORS 652.110.

“ * * * * *

“Special Jury Instruction No. 8 : Unlawful Deductions from Compensation

“Oregon wage and hour laws severely limit the circumstances under which an employer may deduct money from an employee's wages. Every employer shall supply each employee with itemized statements of the amounts and purposes of deductions in the manner provided in ORS 652.610. An employer may not withhold an employee's wages based on allegations, even if confirmed, that the employee stole from the employer.

“ORS 653.045 ; ORS 652.610 ; Miller v. C.C. Meisel Co., 183 Or.App. 148, 160–61 (2002).”

The trial court read the following portion of special jury instruction number five: “An employer is responsible to pay its employees wages with a valid form of payment,” but nothing further. The trial court did not give any portion of special jury instruction number eight.

The verdict form first asked the jury whether plaintiff was “entitled to unpaid wages” from defendant, to which the jury responded, “No.” The verdict form then asked the jury whether plaintiff “converted funds or property of Defendant Namaste,” to which the jury responded, “Yes[,]” and awarded defendant $100,000.

Plaintiff assigns error to the trial court's refusal to give special jury instructions five and eight. Defendant argues that plaintiff did not preserve her argument for appeal, and that, if the argument is preserved, it fails because the proffered jury instructions are not supported by the evidence.

At the outset, we address defendant's argument that plaintiff failed to preserve her claim of error. Defendant does not dispute that plaintiff submitted a written request for the disputed instructions, but it argues that a more specific objection was needed because the trial court “used part of the instructions.” (Emphasis in original.) As defendant acknowledges, the Supreme Court has held that a party's written request for a jury instruction generally is sufficient to preserve a claim that the trial court erred in failing to give the requested instruction, including when the trial court gives part of the instruction. Beall Transport Equipment Co. v. Southern Pacific, 335 Or. 130, 141, 60 P.3d 530 (2002). The Supreme Court has since held, however, that preservation for claims of instructional error is tested by preservation principles generally, rather than by the requirements of ORCP 59 H—on which Beall relied. State v. Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013). Those general principles of preservation “ensure that trial courts have an opportunity to understand and correct their own possible errors and that the parties are not taken by surprise, misled, or denied opportunities to meet an argument.” Id. at 632, 317 P.3d 889. (Internal quotation marks omitted.) Plaintiff's written request for the instructions informed the trial court that plaintiff believed the instructions were necessary to correctly describe the law to the jury.

We need not decide whether Vanornum changes Beall 's answer that no additional objection is needed when the trial court gives a requested instruction in part, because the trial court gave no instruction on the concept encompassed by plaintiffs proposed special jury instruction number eight. We conclude that plaintiffs written request for an instruction on unlawful deductions from compensation sufficiently preserved her challenge to the court's failure to instruct on that concept. See Vanornum, 354 Or. at 632 n. 11, 317 P.3d 889 (“[T]he terms of a requested, but refused, instruction may sometimes go a long way to putting a trial court on notice of the deficiency in the trial court's instructions if the requested instruction is not given.”). As we will...