Greenwood Forest Products, Inc. v. Sapp

• Decision Date: 06 September 1989
• Citation: 98 Or.App. 276,779 P.2d 180
• Parties: GREENWOOD FOREST PRODUCTS, INC., an Oregon corporation, Appellant--cross-respondent, v. James M. SAPP, Respondent--cross-appellant. 83-0841C; CA A49323.
• Court: Oregon Court of Appeals

Page 180

779 P.2d 180

98 Or.App. 276

GREENWOOD FOREST PRODUCTS, INC., an Oregon corporation Appellant--cross-respondent, v. James M. SAPP, Respondent--cross-appellant.

83-0841C; CA A49323.

Court of Appeals of Oregon.

Argued and Submitted April 24, 1989.

Decided Sept. 6, 1989.

Larry D. Moomaw, Beaverton, argued the cause for appellant--cross-respondent. With him on the briefs were Brien Hildebrand and Moomaw, Miller & Reel, Beaverton.

Rick T. Haselton, Portland, argued the cause for respondent--cross-appellant. With him on the brief was Lindsay, Hart, Neil & Weigler, Portland.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

GRABER, Presiding Judge.

Plaintiff appeals, and defendant cross-appeals, from a judgment awarding defendant $23,283.75 as attorney fees. We reverse on the appeal, and that makes the cross-appeal moot.

This case has been here before. Greenwood Forest Products, Inc. v. Sapp, 84 Or.App. 120, 733 P.2d 110, rev. den. 303 Or. 454, 737 P.2d 1248 (1987) (Greenwood I ). Many of the facts that are set forth there need not be restated. Briefly, plaintiff sued its former employe for breach of contract and unfair competition. The employe counterclaimed for past due wages and attorney fees under ORS 652.110 et seq. In Greenwood I, the trial court dismissed the unfair competition claim at the close of plaintiff's case. On the basis of special interrogatories answered by the jury on the contract and wage claims, the court awarded defendant a net judgment of approximately $10,000 ¹ and, over plaintiff's objections attorney fees of $23,283.75. Plaintiff appealed. We reversed and remanded for further proceedings on the unfair competition claim, vacated the attorney fees award "because the proceedings on remand may affect the awardability and the amount of attorney fees," ² and otherwise affirmed the judgment. 84 Or.App. at 126, 733 P.2d 110.

On remand, the unfair competition claim was tried to the court, which found in defendant's favor and dismissed the claim. Plaintiff does not challenge that result on appeal. Also on remand, defendant again sought $23,283.75 in attorney fees for the trial in Greenwood I plus $19,067.50 in fees related to plaintiff's unfair competition claim. The trial court awarded him the $23,283.75 for Greenwood I but denied the request for additional fees. Plaintiff appeals, contending that defendant is entitled to no attorney fees and that, even if he is entitled to fees, the amount that the court awarded is excessive. Defendant cross-appeals, arguing that the trial court should have given him additional fees on the unfair competition claim.

ORS 652.200(2) authorizes attorney fee awards under the wage claim statute:

"In any action for the collection of wages, if it is shown that the wages were not paid for a period of 48 hours, excluding Saturdays, Sundays and holidays, after the same became due and payable, the court shall upon entering judgment for the plaintiff, include in such judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney fees at trial and on appeal for prosecuting said action, unless it appears that the employe has wilfully violated the contract of employment." (Emphasis supplied.)

Plaintiff objected to defendant's fee petition on the ground that he had "wilfully violated the contract of employment." In answer to special interrogatories, the jury found that defendant breached his employment contract by "purchas[ing] inventory for the Trinity Mills account on speculation and without the plaintiff's approval," making sales to Trinity Mills above its credit line, buying "goods from CY Imports and selling them to Trinity Mills," placing an unauthorized order for "vinyl TV stand materials," and failing to "expend reasonable time and effort" or "to act with prudence and reasonableness to collect" debts on certain accounts. The trial court, in awarding fees over plaintiff's objection, implicitly found that those breaches were not "wilful" or that plaintiff waived the right to assert that they were. ³ The dispositive question is whether there is any evidence in the record to support either finding.

In Garvin v. Timber Cutters, Inc., 61 Or.App. 497, 502, 658 P.2d 1164 (1983), we construed ORS 652.200(2):

"[I]t does not mean that any act of misconduct during the course of employment can be used to bar an employe from recovering attorney fees. Rather, we conclude that the statute refers to the violation of some provision of a contract of employment--either express or implied--and requires that the violation be one that resulted in or would have justified termination of the employment. We hold that a wilful violation of the employment contract that caused, or would have justified, termination of the employment bars the employe's right to recover attorney fees, provided the employer has not acquiesced in the violation, or waived his right to assert it as a bar, by continuing the employment after its discovery." (Emphasis in original.)

Accord: Reed v. Curry-Kropp-Cates, Inc., 61 Or.App. 520, 524-25, 658 P.2d 531

(1983). The evidence permits only one conclusion about the reason why defendant was fired: He violated the company's policies in the particulars that the jury found that he had. The company president so testified. Defendant's brief points us to no other possible explanation for his discharge, and our review of the record reveals none. He defended the contract claims on the theory that the policies that he breached were unilateral, not a contract, or...