State v. Fox, SC S068980

CourtSupreme Court of Oregon
Writing for the CourtWALTERS, C. J.
Citation370 Or. 456
PartiesSTATE OF OREGON, Respondent on Review, v. PATRICK RAYMOND FOX, Petitioner on Review.
Docket NumberSC S068980
Decision Date17 November 2022

370 Or. 456

STATE OF OREGON, Respondent on Review,

PATRICK RAYMOND FOX, Petitioner on Review.

SC S068980

Supreme Court of Oregon, En Banc

November 17, 2022

Argued and submitted June 8, 2022 .

On review from the Court of Appeals. [*] (CC 17CR07694) (CA A167616)

David O. Ferry, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Jeff J. Payne, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Travis Eiva, Eugene, fled the brief for amicus curiae Oregon Trial Lawyers Association.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.


[370 Or. 457] WALTERS, C. J.


[370 Or. 458] In a criminal case, a trial court is permitted to award restitution for a victim's "economic damages," as that term is defined in ORS 137.103(2Xa). This case requires us to decide whether that term includes attorney fees that a victim chooses to incur to protect the victim's interest in obtaining restitution. For the reasons that follow, we conclude that it does not and that the trial court erred in awarding restitution for such fees.

The relevant facts are undisputed. Defendant and the victims were involved in a property dispute, and the victims hired a civil attorney to assist them in that matter. During an incident regarding the property dispute, defendant struck the victims with a metal chain causing them significant injury. The state charged defendant with one count each of second- and third-degree assault, and defendant eventually pleaded guilty to both counts.

During defendant's prosecution, the victims retained the attorney who was representing them in the civil case to represent their interests in that criminal proceeding. The victims' attorney appeared at defendant's arraignment and security release hearings, a settlement conference, and hearings for defendant's entry of plea and sentencing. At sentencing, the victims' attorney argued against the state's recommended prison sentence and advocated for a probationary sentence to increase the likelihood that defendant could pay restitution to the victims.

In addition to participating in those proceedings, the victims' attorney also took other actions. The victims' attorney met with the prosecutor and the district attorney's restitution department to discuss the case and filed a motion to quash defendant's subpoena requiring the victims to produce their entire internet history related to the property dispute. After defendant agreed to narrow the scope of that subpoena, the victims' attorney withdrew the motion to quash. And, in response to an expressed concern from defendant's criminal attorney that the victims were "going over to his property and stealing his stuff," the victims' attorney took photographs of defendant's property to assuage those concerns.


[370 Or. 459] After defendant's guilty plea and sentencing,[1] the state sought restitution for the medical expenses that the victims had incurred as a result of the assault and the attorney fees that the victims had incurred in the criminal proceeding. Defendant conceded that the claimed attorney fees resulted from defendant's criminal activities but objected to their recovery, arguing that neither the medical expenses nor the attorney fees were reasonable or necessary and that the attorney fees did not constitute "economic damages" recoverable as restitution. The trial court awarded the full amount of the medical expenses. The trial court also awarded $3,200 in attorney fees. That award included the attorney fees for the attorney's appearances during the criminal case, meetings with the prosecutor and their office, responding to an overbroad subpoena from defendant, and taking photographs of the property in dispute.[2]

Defendant appealed the restitution award. As to the award for medical expenses, defendant argued that the record did not support the trial court's determination that those expenses were reasonable or necessary. As to the award for attorney fees, defendant contended that the fees incurred in the criminal proceeding would not be recoverable "economic damages" under ORS 137.106(1) as defined in ORS 137.103(2)(a) (cross referencing definition of "economic damages" in ORS 31.710(2)(a)) and as discussed in State v. Ramos, 358 Or. 581, 368 P.3d 446 (2016).[3] He also


[370 Or. 460] argued that the record lacked any suggestion that the state is incapable, without private assistance, of seeking criminal convictions and appropriate restitution, and therefore that the victims' attorney fees were unnecessary and not reasonably foreseeable.

The Court of Appeals reversed the award for the medical expenses incurred by one of the two victims but affirmed as to those incurred by the other. State v. Fox, 313 Or.App. 317, 324, 496 P.3d 10 (2021). As to the latter expenses, the court held that the record included evidence in addition to the payment of the bills demonstrating that they were reasonable and necessary. With respect to the victims' attorney fees, the court affirmed the award for the attorney fees incurred in the criminal case, determining that "it is reasonably foreseeable that a victim would hire an attorney to advise them about their rights in a criminal case," and that, "because a victim is entitled to seek separate representation, the services provided by [the victims' attorney] that were directly related to the criminal case were necessarily incurred by the victims."[4] Id. at 326-27.

In this court, defendant challenges both decisions by the Court of Appeals. As to the affirmed medical expenses, defendant renews his argument that the record does not support that award. We disagree and affirm without further discussion.

As to the affirmed attorney fees, defendant maintains that Oregon's restitution statutes limit available recovery to "economic damages," and that the cost of retaining an attorney to represent a victim's interests in the underlying criminal proceeding does not fit that bill. Defendant contends that the legislature intentionally limited a victim's recovery to amounts that the victim could recover in a civil proceeding, and that, in a civil proceeding, following the "American Rule," a victim cannot recover attorney


[370 Or. 461] fees incurred to obtain a judgment in that proceeding. Additionally, defendant submits, even if this court were to determine that such fees are recoverable as "economic damages," the trial court erred in awarding them here because the record does not support its implicit determination that they were reasonably foreseeable and necessarily incurred.

In response, the state contends that defendant did not preserve his argument that attorney fees incurred in a criminal prosecution are not recoverable as restitution under the "American Rule," and that defendant's argument that such fees are not recoverable as "economic damages" is foreclosed by this court's decision in Ramos. The state argues that, in Ramos, this court decided that a trial court may award attorney fees that a victim incurs in the underlying criminal proceeding as "economic damages," 358 Or at 604, and that we must affirm the imposition of such restitution here. The state also maintains that the trial court correctly concluded that the attorney fees it awarded were reasonably foreseeable and necessarily incurred.

We begin with the state's preservation argument, and do not consider it an impediment to our review. Preservation serves several purposes, including giving a trial court the chance to consider and rule on an issue, ensuring fairness to the opposing party by giving them an opportunity to respond, and fostering full development of the record. Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008). The state is correct that, at trial and on appeal to the Court of Appeals, defendant did not cite to the American Rule in objecting to the court's inclusion of attorney fees in its restitution award. But, to preserve an issue, such citation is not always necessary. Raising an issue at trial is ordinarily essential, whereas identifying a source is less so, and making a particular argument is the least significant. State v. McKinney, 369 Or. 325, 332, 505 P.3d 946 (2022). From the outset, defendant has squarely raised the issue of whether the attorney fees that the victims incurred in this criminal proceeding are recoverable in restitution as "economic damages"; furthermore, the parties at the restitution hearing identified, as relevant precedent, this court's decision in Ramos, a case in which we discussed the American Rule in the context of restitution hearings. The purposes of the


[370 Or. 462] preservation rule are met here, and we proceed to consider the parties' arguments on their merits.

As noted, defendant argues that the victims' attorney fees could not properly be included in the restitution award because those fees did not constitute "economic damages" within the meaning of ORS 137.106(1), while the state responds that that argument is foreclosed by our decision in Ramos.

In Ramos, the defendant set fire to her restaurant and filed a fraudulent claim with her insurance company seeking to recover the fire-related damages. Subsequently, the defendant was convicted of second-degree arson and attempted first-degree aggravated theft. 358 Or at 581-83. The insurance company victim incurred two categories of attorney fees and costs, both of which the trial court awarded as restitution: (1) attorney fees and costs that the company incurred outside the criminal prosecution in investigating the...

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