Spaid v. 4–R Equip., LLC

• Decision Date: 12 September 2012
• Docket Number: 06CV0275MA; A146613.
• Citation: 252 Or.App. 228,287 P.3d 1138
• Parties: Louis L. SPAID, an individual, Plaintiff–Appellant, v. 4–R EQUIPMENT, LLC, an Oregon corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

252 Or.App. 228

287 P.3d 1138

Louis L. SPAID, an individual, Plaintiff–Appellant,

v.4–R EQUIPMENT, LLC, an Oregon corporation, Defendant–Respondent.

06CV0275MA; A146613.

Court of Appeals of Oregon.

Argued and Submitted July 17, 2012.

Decided Sept. 12, 2012.

Roxanne L. Farra argued the cause and filed the briefs for appellant.

Melinda M. Thomas argued the cause for respondent. With her on the brief was Bryant, Lovlien & Jarvis, P.C.

Before ARMSTRONG, Presiding Judge, and BREWER, Judge, and DUNCAN, Judge.

BREWER, J.

Plaintiff sued defendant for age discrimination under ORS 659A.030 and wrongful discharge.¹ A jury returned a verdict in plaintiff's favor for $200,000 in “[l]ost back wages and benefits” and $10,000 in noneconomic damages. Plaintiff assigns as error the trial court's denial of prejudgment interest on the back pay award. We affirm.

6 We review the trial court's denial of an award of prejudgment interest for errors of law. Tasaki v. Moriarty, 233 Or.App. 51, 55, 225 P.3d 68 (2009). The pertinent facts are procedural and are not in dispute. In his amended complaint, plaintiff asserted claims for age discrimination under ORS 659A.030 and for common law wrongful discharge.² In both claims, plaintiff alleged that (1) “on February 11, 2005, [defendant] involuntarily terminated [plaintiff's] employment”; (2) at the time of his termination, “[plaintiff] earned $93,248.03 per year from [defendant],” plus health insurance and other employee benefits; (3) as a result of the unlawful termination, plaintiff “lost wages and benefits and sustained future wage loss in an amount to be determined at trial,” but not to exceed $500,000; and (4) plaintiff also suffered noneconomic damages not to exceed $100,000. In a prayer for relief that applied to both claims, plaintiff asserted that he was entitled to “prejudgment interest” and “[s]uch other equitable relief as the court may deem necessary and proper.”

As noted, the jury returned a verdict in favor of plaintiff for $200,000 in back pay and benefits and an additional $10,000 in noneconomic damages. The jury did not award any front pay to plaintiff. The parties did not submit the issue of plaintiff's entitlement to prejudgment interest to the jury, nor was the jury instructed to make any findings of fact with respect to that issue.

Plaintiff was terminated at age 59 and was 64 years old at the time of trial. At trial, the jury was presented with conflicting evidence as to plaintiff's planned retirement age, had he not been terminated by defendant. Plaintiff testified that he had planned to continue working until he reached age 70. Plaintiff's wife testified that he had planned to retire at age 65. Plaintiff's expert witness, Accaragui, testified that plaintiff said that he had planned to work through age 66, and plaintiff's coworker, Baughman, testified that, while plaintiff was still working for defendant, he had said that he planned to retire in about two years. Another coworker, Geer, also testified that plaintiff had told him that he planned to retire in about two years. Furthermore, the jury heard conflicting evidence as to whether defendant had offered plaintiff alternative employment at reduced wages. Defendant's owner and manager, Robinson, testified that he had offered plaintiff a job as a heavy equipment operator at $40,000 to $50,000 per year. Plaintiff testified that he was not offered alternative employment. However, Baughman testified that plaintiff had told him that Robinson had offered plaintiff a different job running a “dozer” at $18.00 per hour. Geer testified that plaintiff had told him that Robinson had offered him a job as a heavy equipment operator, but plaintiff would not work for a reduced hourly wage.

Evidence also was adduced at trial that the amount of plaintiff's wages fluctuated significantly over the course of his employment depending, at least in part, on the number of hours that plaintiff worked in a year. Robinson testified that, between 1997 and 2004, plaintiff's wages generally increased but there were a few years (1998 and 2000) where his wages decreased, and that his hours also began dropping at some point.

After the jury returned its verdict, plaintiff submitted a proposed general judgment and provided the trial court with a spreadsheet detailing his prejudgment interest calculation. Plaintiff requested prejudgment interest on his back pay award in the amount of $70,199.95, based on the assumption that he would have earned back pay beginning on March 25, 2005—when he received his last severance payment—at a rate of $100,000 per year for a period of two years. Defendant objected to the inclusion of prejudgment interest on the back pay award. Defendant raised four particular objections: (1) plaintiff failed to plead a sufficient foundation for prejudgment interest; (2) the “amount of damages” upon which prejudgment interest would accrue was not ascertainable because the jury did not provide the mathematical calculation that it used to arrive at its $200,000 back pay award; (3) the time from which prejudgment interest should run was not ascertainable for the same reason; and (4) defendant should not be penalized for “trial delays beyond its control.” ³

The trial court ultimately entered a general judgment without interest on the back pay award. In a letter opinion, the court reasoned as follows:

“In his first Amended Complaint, the Plaintiff did include in the prayer for relief a claim for prejudgment interest. However, the Complaint does not state which portion of the claimed damages should be subject to prejudgment interest.

“The jury returned a verdict for $210,000. The verdict did specify that $200,000 was awarded for lost back wages and benefits. In Plaintiff's proposed General Judgment, Plaintiff seeks an award of prejudgment interest ‘at 9 per cent per annum on the award of $200,000 for lost back wages and benefits for the period March 25, 2005 to the date of entry of judgment.’

“The Plaintiff seeks prejudgment interest on the full $200,000 awarded for back wages and benefits from the date of his termination to the date of the entry of judgment. However, the jury award of $200,000 for lost back wages and benefits was an amount awarded from the date of Plaintiff's termination to the time of trial. There was no finding by the jury that the Plaintiff was entitled to $200,000 on the date of his termination, or any further specification as to when the plaintiff was entitled to any specific amount.

“Although the Plaintiff may be entitled to some award of prejudgment interest, the Court rejects Plaintiff's argument that he is entitled to prejudgment interest from the date of his termination on the full award of $200,000 for back wages and benefits.

“Therefore, the Court sustains the Defendant's objection to Plaintiff's proposed General Judgment that would award the Plaintiff prejudgment interest on the award of $200,000 for lost back wages and benefits from March 25, 2005 to the date of the entry of judgment.”

(Underscoring in original.) On appeal, plaintiff challenges the entry of the judgment without the award of prejudgment interest that he requested. The parties square off over the same issues with which the trial court grappled in reaching its decision. We address those issues in turn.

We begin with the issue of the sufficiency of plaintiff's amended complaint to assert a right to recover prejudgment interest. In Emmert v. No Problem Harry, Inc., 222 Or.App. 151, 158, 192 P.3d 844 (2008), we summarized those pleading requirements as follows:

“To [plead a right to recover prejudgment interest], [a] party must (1) request prejudgment interest in the prayer and (2) plead facts sufficient to state a claim for prejudgment interest. Shepherd v. Hub Lumber Co., 273 Or. 331, 349, 541 P.2d 439 (1975). Those facts supporting a party's claim for prejudgment interest must be stated in the body of the party's complaint. See Laursen v. Morris, 103 Or.App. 538, 547, 799 P.2d 648 (1990), rev. den.,311 Or. 150 (1991) (‘[W]ith respect to stating a claim for prejudgment interest, the prayer is not part of the statement of the claim. Only if the facts pleaded are sufficient to state a claim for it may prejudgment interest be awarded.’)”

Where courts have found that prejudgment interest has been sufficiently pleaded in the body of the complaint, the claimants often have specified the amounts that they claimed were due exclusive of interest and the dates during which they were deprived of that amount. See Emmert, 222 Or.App. at 158–159, 192 P.3d 844 (“Plaintiff in this case prayed for prejudgment interest and specified in both the prayer and the body of its amended complaint the amount it claimed it was due exclusive of interest—$220,411.00—and the dates during which it was deprived of that sum—‘as of May 7, 2002.’ ”); Holman Transfer Co. v. PNB Telephone Co., 287 Or. 387, 406, 599 P.2d 1115 (1970) (plaintiff's complaint alleges “the exact amount claimed to be due and the dates during which plaintiff claimed it was deprived of the use of its money”); Tasaki, 233 Or.App. at 56, 225 P.3d 68 (“[A]s in Emmert, plaintiffs specified the amount that they claimed they were due exclusive of interest—$25,000—and the dates during which they were deprived of that amount—from April 26, 2005, the date of the breach, until the date of the judgment.”).

In light of that authority, defendant asserts that plaintiff's pleading was deficient in three respects. First, defendant asserts that the allegation that plaintiff “lost wages and benefits and sustained future wage loss in an amount to be determined at trial, but not to exceed $500,000,” lumped together the amount of damages claimed for back pay and front pay or, in the words of the trial court, “the Complaint does not state which portion of the claimed damages should be subject to prejudgment interest.”

Second, defendant argues that plaintiff also failed to allege the specific dates during which...