No. 591 August 28, 2024 529

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

SUMMIT RWP, INC., 

dba Summit Reconstruction and Restoration, 

an Oregon corporation,

Plaintiff-Respondent,

and

Cameron ELLIS, 

an individual,

Plaintiff,

v.

David HALLIN,

Defendant-Appellant,

and

Michael HALLIN, 

an individual; and 

Prestige NW Construction Services, LLC, 

a Washington limited liability company,

Defendants.

Washington County Circuit Court

21CV20448; A180591

Andrew Erwin, Judge.

Submitted April 22, 2024.

Elizabeth Farrell filed the briefs for appellant.

Donald J. Koehler, II, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

SHORR, P. J.

General judgment reversed and remanded for further proceedings consistent with this opinion; otherwise 

affirmed. Supplemental judgment affirmed.
530 Summit RWP, Inc. v. Hallin
Cite as 334 Or App 529 (2024) 531

SHORR, P. J.

Defendant-employee David Hallin appeals from a 

general judgment and a supplemental judgment entered after 

a civil bench trial. Following that trial, the court ruled (1) for 

plaintiff-employer Summit RWP, Inc. on its claim for breach 

of contract, (2) for defendant on his counterclaim under ORS 

652.140 for plaintiff’s failure to timely pay wages, but the 

court cut its statutory penalty award to defendant and denied 

defendant’s attorney fees despite defendant prevailing on the 

underlying claim, and (3) for plaintiff on defendant’s second 

counterclaim for breach of contract for unreimbursed work 

expenses.1

 Defendant raises six assignments of error. As we 

explain below, we reject all of those assignments except for 

defendant’s third and fourth assignments of error in which 

he contends that the court erred in reducing the statutory 

penalty award under ORS 652.150 and denying his petition 

for attorney fees under ORS 652.200. For the following reasons, we reverse and remand the general judgment for further proceedings on defendant’s claim for a statutory penalty 

for plaintiff’s failure to timely pay wages and for defendant’s 

request for his attorney fees, and we affirm the supplemental 

judgment regarding plaintiff’s attorney fees.

DENIAL OF DEFENDANT’S ORCP 54 B(2) MOTION

We begin by briefly addressing defendant’s first 

assignment of error. Defendant argues that the trial court 

erred in denying his ORCP 54 B(2) motion for involuntary 

dismissal for two reasons: (1) the court erroneously applied 

the directed verdict standard when ruling on that motion, 

and (2) the trial court’s ruling was based on testimony that 

was either inaccurate, speculative, or contradictory.

We do not address defendant’s first argument on its 

merits because he did not preserve it, as required by ORAP 

5.45.2

 During trial, the court asked, “I take your argument 

1 The trial court entered stipulated judgments of dismissal to Cameron Ellis, 

owner and president of Summit, RWP, Inc., Michael Hallin (defendant’s son) in 

his personal capacity, and Prestige NW Construction Services LLC. Those parties are not part of this appeal.

2 ORAP 5.45(1) provides, in relevant part, “No matter claimed as error will 

be considered on appeal unless the claim of error was preserved in the lower 

court * ** provided that the appellate court may, in its discretion, consider a plain 

error.”
532 Summit RWP, Inc. v. Hallin

to be one for directed verdict in this matter?” Defendant’s 

counsel responded, “[y]es,” and offered no objection. See 

State v. Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015) 

(“To adequately preserve an issue, a party must provide the 

trial court with an explanation of his or her objection that 

is specific enough to ensure that the court can identify its 

alleged error with enough clarity to permit it to consider and 

correct the error immediately, if correction is warranted.” 

(Internal quotation marks omitted.)). Furthermore, we do 

not consider plain error review because defendant does not 

request it. State v. Ardizzone, 270 Or App 666, 667, 349 P3d 

597, rev den, 358 Or 145 (2015).

We also reject defendant’s second argument. The 

substance of defendant’s reasoning is that, in denying the 

motion, the court credited evidence that favored plaintiff 

despite contradictory or competing evidence in the record. 

Yet, that is precisely what we are required to do when 

reviewing the denial of an ORCP 54 B(2) motion: we must 

view the evidence and all reasonable inferences that can be 

made from it in the light most favorable to the plaintiff to 

determine whether there is sufficient evidence to establish a 

prima facie case. Marlow v. City of Sisters, 281 Or App 462, 

465, 383 P3d 908 (2016). In light of that standard, we conclude that the trial court did not err in denying the motion.

FACTS GIVING RISE TO THE DISPUTE

We turn to the facts necessary to resolve defendant’s 

remaining assignments of error. “We review the trial court’s 

findings of fact for any evidence to support them,” Allco 

Enterprises v. Goldstein Family Living Trust, 183 Or App 

328, 330, 51 P3d 1275 (2002), and we “defer to the court’s 

explicit and implicit findings of fact if they are supported 

by evidence in the record,” Golick v. CBS Corp., 306 Or App 

202, 213, 472 P3d 778 (2020). We state the facts consistently 

with that standard.

Defendant signed an employment agreement with 

plaintiff that contained a nonsolicitation provision that 

prohibited defendant from “[i]induc[ing], or attempt[ing] 

to influence, any employee of the Company to terminate employment with the Company or to enter into any 
Cite as 334 Or App 529 (2024) 533

employment ** * with any *** firm or corporation.” That 

employment agreement contained no provision setting out 

a bonus or commission structure, but defendant informally 

received a quarterly bonus until the parties formally modified the agreement in August 2020 to include a two percent quarterly bonus until January 7, 2021. Defendant also 

received an employee handbook shortly after being hired by 

plaintiff that contained a provision that allowed employees 

to receive reimbursements for company expenses. That provision required employees to submit written reimbursement 

requests within two weeks of incurring the expense.

Plaintiff terminated defendant’s employment on 

April 16, 2021. Within 24 hours of being terminated, defendant received a phone call on his personal cell phone from 

plaintiff’s employee, Venegas. Shortly thereafter, Venegas 

quit working for plaintiff and began working for defendant’s son’s competing company, Prestige NW Construction 

Services, LLC (Prestige). Around that time, defendant 

spoke to two more of plaintiff’s then-employees, Juan Zarate 

and Miguel Zarate, several times over the course of about a 

month. Shortly after those exchanges, both Juan and Miguel 

quit working for plaintiff and began working for Prestige. At 

one point, when referring to three of plaintiff’s employees, 

defendant sent a text that read, “I hired three Summit people today because I can and not get sued over it. FUCK [the 

owner and president of Summit RWP, Inc.].”

When plaintiff terminated defendant’s employment, 

defendant had already earned a fourth quarter 2020 bonus 

that had not been paid because of administrative staffing 

issues that precluded plaintiff from calculating the amount 

of the bonus. But when defendant’s counsel asked Ellis, 

plaintiff’s owner and president, whether an employee that 

was subject to receipt of bonuses would receive those bonuses 

after termination, Ellis replied, “No?” and explained, “I feel 

like if you are messing up your job so badly that you got fired 

that you shouldn’t be bonused for it. And because they’re 

discretionary.”

Also, after termination of employment, defendant 

submitted several reimbursement requests for work-related 

expenses that had been incurred as many as two years 
534 Summit RWP, Inc. v. Hallin

earlier. Plaintiff’s controller later testified that employees 

on occasion were reimbursed for expenses that were submitted more than two weeks after the expenses were incurred. 

But the controller also testified that no employees had been 

reimbursed for expenses submitted as late as defendant’s—

eleven months to two years from the time that they were 

incurred.

Plaintiff ultimately filed a lawsuit against defendant, alleging that defendant had breached the non-solicitation provision in his employment contract and intentionally 

interfered with an economic relationship when he solicited 

plaintiff’s employees to work for Prestige.3

 Within 30 days 

of the filing of the complaint, defendant sent plaintiff a 

demand letter requesting $36,000 ($18,000 each for the two 

unpaid quarterly bonuses) and counterclaimed for unpaid 

wages under ORS 652.140.4

 Defendant also counterclaimed 

for breach of contract, alleging that plaintiff failed to reimburse him for expenses incurred during his employment.

As recounted at the outset of this opinion, the litigation proceeded to a bench trial. Following that trial, the 

court ruled (1) in favor of plaintiff on its claim for breach 

of the non-solicitation agreement, awarding $60,912.50 in 

attorney fees to plaintiff, (2) in favor of plaintiff on defendant’s counterclaim for breach of contract for plaintiff’s 

failure to reimburse defendant’s expenses, and (3) in favor 

of defendant on his counterclaim under ORS 652.140 for 

unpaid wages, but the court reduced the statutory penalty 

under ORS 652.150 and denied defendant’s attorney-fee 

award.

THE RECORD SUPPORTS THE TRIAL COURT’S 

FINDINGS OF FACT

Turning to defendant’s second assignment of error, 

he argues that the trial court erred when it made various 

3 .

The trial court dismissed plaintiff’s intentional interference with an economic relationship claim, and neither party assigns error to that decision on 

appeal.

4 .

There are two quarterly bonuses in dispute, defendant’s fourth quarter 

2020 bonus and his first quarter 2021 bonus. We discuss the fourth quarter 

bonus further below. The trial court ruled that defendant was not entitled to 

a first quarter 2021 bonus. Defendant does not develop any legal argument on 

appeal regarding the first quarter bonus, so we do not address it.
Cite as 334 Or App 529 (2024) 535

findings of fact that were “unsupported by any facts on the 

record and/or are directly contrary to the undisputed facts.”5

As previously noted, we review the trial court’s findings of 

fact for any evidence to support them. Allco Enterprises, 183 

Or App at 330.

The trial court found that defendant intended to be 

bound by the employment agreement. The record reflects 

that defendant signed the employment agreement, which 

contained a provision that reads, in relevant part, “intending to be legally bound, the Employee and the Company 

mutually promise and agree as follows.” The court also 

found that defendant induced plaintiff’s employees to leave 

their employment with plaintiff and to work for Prestige 

instead. Defendant’s phone records show repeated contacts 

with plaintiff’s then-current employees who began working 

at Prestige shortly after he contacted them. Defendant’s 

text communications show his contempt for plaintiff’s owner 

and president and his desire to hire plaintiff’s employees 

away to work for Prestige. Having reviewed the record, we 

conclude that the trial court did not err because its factual 

findings are supported by “any evidence” in the record.

DEFENDANT’S COUNTERCLAIM FOR EXPENSE 

REIMBURSEMENT

In his fifth assignment of error, defendant contends 

that the trial court erred in entering a verdict in favor of 

plaintiff on defendant’s counterclaim for breach of contract for unreimbursed expenses. Defendant argues that 

the trial court erred as a matter of law because (1) plaintiff was unjustly enriched and (2) plaintiff’s conduct constituted a waiver of the employment contract and its deadline 

for expense reimbursements. Defendant did not argue an 

unjust enrichment theory to the trial court, so we will not 

consider that argument on appeal.6 See ORAP 5.45(1) (“No 

5 Defendant argues that the trial court erred by “holding that [defendant] 

breached its Employment Agreement with Summit” but makes no argument contesting the court’s legal conclusion or reasoning. Rather, we understand defendant to contest the factual findings underlying that conclusion, which we review 

for any evidence. Allco Enterprises, 183 Or App at 330.

6 At the very end of closing argument, the court asked, “[I]s there a reason 

why there wasn’t a claim for quantum meruit made in this case[?]” Defense counsel responded, “Yeah, I guess I’m just not prepared to answer that question[.]”
536 Summit RWP, Inc. v. Hallin

matter claimed as error will be considered on appeal unless 

** * preserved in the lower court

.* **.”); see also John Hyland Const., Inc. v. Williamsen & 

Bleid, Inc., 287 Or App 466, 473, 402 P3d 719 (2017) (“Lack 

of compliance with ORAP 5.45 may render a claim of error 

unreviewable on appeal.”).7

As to defendant’s waiver argument, he raised that 

issue during closing argument before the trial court in a 

bench trial in a manner that presented the equivalent of 

a motion for directed verdict, which is sufficient for our 

review. Peiffer v. Hoyt, 339 Or 649, 658, 125 P3d 734 (2005). 

Accordingly, we again view the evidence in the light most 

favorable the nonmoving party, affording the nonmoving 

party every reasonable inference that can be drawn from 

that evidence. Kelley v. Washington County, 303 Or App 20, 

21, 463 P3d 36 (2020).

Defendant argues that plaintiff waived the two-week 

requirement for submitting reimbursement requests by regularly accepting reimbursement requests from other employees that were submitted after the two-week deadline and not 

communicating to employees that the deadline was strictly 

enforced. See Fisher v. Tiffin, 275 Or 437, 442, 551 P2d 1061 

(1976) (“[W]e believe that the plaintiff’s actions in accepting 

late payments consistently * * * without ever notifying the 

defendant * ** he was going to insist on payments strictly 

in accordance with the contract’s terms, were sufficient to 

demonstrate a waiver of the time provisions of the contract 

despite the contract’s language to the contrary.”). But “[w]

hether a waiver has occurred depends on the particular circumstances of each case.” Moore v. Mutual of Enumclaw Ins. 

Co., 317 Or 235, 240, 855 P2d 626 (1993); see also Widing 

et al v. Jensen, Real Estate Com., 231 Or 541, 548, 373 P2d 

661 (1962) (“There is, however, no absolute test for the ascertainment of waiver or extension of time; such is a question 

7 Defendant requests plain error review for this assignment of error. 

Whatever the merits of the underlying claim, we decline to consider any claimed 

error because it is not “obvious” that the trial court had to find for him on an 

unjust enrichment claim that was neither alleged in the complaint nor requested 

by counsel, following a specific inquiry by the court, during closing argument. See 

State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990) (stating that, for an error to 

be plain, the legal point must be obvious).
Cite as 334 Or App 529 (2024) 537

of fact for the determination of the court.”). The trial court 

concluded that a waiver had not occurred. We agree.

“Waiver is the intentional relinquishment or abandonment of a known right or privilege.” Moore, 317 Or at 

240. Plaintiff’s controller testified that plaintiff would occasionally reimburse employees for expenses submitted past 

the two-week deadline. The controller explained that plaintiff wanted to be “flexible and lenient with people and, you 

know, be reasonable.” The controller also testified that the 

two-week deadline for submitting expense reports was integral to plaintiff’s billing cycles and calculating the profit 

margins (and subsequently, the bonus amounts) on each job. 

The expenses defendant requested from plaintiff after termination range from eleven months to over two years old—

and were thus not factored into plaintiff’s normal billing 

cycles or profit/bonus calculations. Furthermore, plaintiff’s 

records indicate that it never reimbursed an expense submitted that long or anywhere near that long after the twoweek deadline. Those facts, taken together, indicate that 

plaintiff might have only ever intended to use its discretion 

to extend the two-week deadline in certain circumstances 

not present here but not to abandon the deadline altogether. 

Regardless, the issue of waiver was ultimately one of fact 

for the trial court and not an issue that the trial court had 

to decide in defendant’s favor. The trial court did not err in 

ruling for plaintiff on defendant’s second counterclaim for 

breach of contract because the court did not have to conclude 

as a matter of law that plaintiff waived the two-week deadline for submitting expense reports.

THE STATUTORY PENALTY AWARD

Turning to defendant’s third assignment of error, 

he argues that the court erred in its award of a statutory 

penalty under ORS 652.150 when it calculated the penalty 

for nonpayment of his fourth quarter 2020 bonus and then 

reduced it to punish him for making a “wild guess” as to the 

amount of the unpaid wages requested in his demand letter 

to plaintiff. The court awarded defendant half of his unpaid 

bonus as a penalty. It is unclear precisely how the trial court 

reached that amount. It appears that the court might have 

computed the statutory penalty by awarding defendant his 
538 Summit RWP, Inc. v. Hallin

hourly rate at eight hours a day for each day of nonpayment, then capped that award at 100 percent of the unpaid 

bonus. See ORS 652.150(1) (“the wages or compensation of 

the employee shall continue from the due date thereof at the 

same hourly rate for eight hours per day until paid”); ORS 

652.150(1)(a) (“In no case shall the penalty wages or compensation continue for more than 30 days from the due date[.]”). 

It is undisputed that the court then cut that amount in half 

after concluding that defendant failed to give reasonable 

notice of the wage claim under ORS 652.150. As we discuss 

below, we conclude that the trial court erred when it cut its 

penalty award.

When we review the trial court’s interpretation of 

a statute—as we do here—we review for legal error. Rider 

v. Carranza, 306 Or App 616, 618, 475 P3d 467 (2020). 

Defendant argues that there is no basis in the text of ORS 

652.150 for judicial discretion to modify the penalty. We 

agree. Text and context must be considered first in our statutory analysis. State v. Gaines, 346 Or 160, 171, 206 P3d 

1042 (2009).

ORS 652.150 provides, in part:

“(1) Except as provided in subsections (2) and (3) of this 

section, if an employer willfully fails to pay any wages or 

compensation of any employee whose employment ceases, 

as provided in ORS 652.140 and 652.145, then, as a penalty for the nonpayment, the wages or compensation of the 

employee shall continue from the due date thereof at the 

same hourly rate for eight hours per day until paid or until 

action therefor is commenced.”

The statute further provides that “[i]n no case shall the penalty wages or compensation continue for more than 30 days 

from the due date.” ORS 652.150(1)(a).

The legislature’s statement that the penalty “shall” 

continue indicates the legislature’s intent to not confer discretion upon the court to order a lesser amount. Friends of 

Columbia Gorge v. Columbia River (S055915), 346 Or 415, 

426-27, 212 P3d 1243 (2009) (“[I]n the statutory context, in 

ordinary usage, ‘shall’ create[s] a mandatory duty, while 

‘may’ creates only authority to act.” (Second brackets in 

original; internal quotation marks omitted.)). Nor is there 
Cite as 334 Or App 529 (2024) 539

any other provision under ORS 652.150 that would indicate 

otherwise. Under the statute and absent any other applicable exception, and the parties identify none, the penalty 

shall continue “until paid or until action therefor is commenced” up to a maximum of thirty days.

Plaintiff cross-assigns error to the trial court’s 

award of a statutory penalty to defendant, arguing that 

defendant is not entitled to recover any penalty because 

(1) defendant was not entitled to his fourth quarter 2020 

bonus, (2) plaintiff did not “willfully” fail to pay defendant’s 

2020 bonus, and (3) defendant provided no evidence to establish the due date for defendant’s 2020 bonus under ORS 

652.150(1). First, the trial court found that both parties stipulated that they had entered into a written modification of 

the employment agreement that granted defendant a two 

percent bonus until January 7, 2021, for the fourth quarter 

of 2020. The record supports that finding, so we defer to the 

trial court, as we must. Golik, 306 Or App at 213. Defendant 

was terminated on April 16, 2021, well after the time that 

he had earned his bonus.

Turning to plaintiff’s second argument, “the word 

‘willful’ does not necessarily cast blame or implicate malice; 

it merely indicates that the act or omission was purposeful and not the product of inadvertence.” Young v. State of 

Oregon, 340 Or 401, 409, 133 P3d 915 (2006). There was evidence that defendant had not been paid his fourth quarter 

2020 bonus at the time of his termination due to plaintiff’s 

administrative difficulties. Regardless, the record supports 

the trial court’s determination that plaintiff willfully or 

“purposefully” withheld defendant’s bonus after his termination. Notably, plaintiff’s owner and president testified 

that he believed “if you are messing up your job so badly 

that you got fired that you shouldn’t be bonused for it.”

Finally, plaintiff’s argument that defendant’s 

fourth quarter 2020 bonus never became due and payable 

is foreclosed by ORS 652.140(1), which states that “[w]hen 

an employer discharges an employee or when employment 

is terminated by mutual agreement, all wages earned and 

unpaid at the time of the discharge or termination become 
540 Summit RWP, Inc. v. Hallin

due and payable not later than the end of the first business 

day after the discharge or termination.”

We conclude that the trial court erred when it 

reduced the penalty award.8

ATTORNEY FEES FOR DEFENDANT’S UNPAID 

WAGES CLAIM

In defendant’s fourth assignment of error, he contends that the trial court erred in denying his request for 

attorney fees under ORS 652.200(2) despite prevailing on 

his underlying wage claim.

ORS 652.200(2) provides:

“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 wages 

became due and payable, the court shall, upon entering 

judgment for the plaintiff, include in the 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 the action, unless it appears that 

the employee has willfully violated the contract of employment or unless the court finds that the plaintiff’s attorney 

unreasonably failed to give written notice of the wage claim 

to the employer before filing the action.”

Applying that statute, the court concluded that defendant 

“unreasonably failed to give written notice of the wage 

claim” because he made a “wild guess” as to the amount of 

the unpaid wages requested in his demand letter to plaintiff 

(two $18,000 payments for two unpaid bonuses).9

 Defendant 

argues that the trial court misconstrued ORS 652.200(2) 

when it used its discretion to determine whether the content 

of the notice itself was reasonable, rather than determining 

8 Defendant argues that the trial court miscalculated the amount of the statutory penalty altogether and contends that it should have been in the amount 

of $13,846.20. As noted, we cannot tell exactly how the court determined the 

amount of the penalty or the facts that went into that calculation. On remand, 

the court should follow the statutory formula for determining the correct penalty 

based on the record before it and, after having done so, award the full amount.

9 No one contends that the bonuses are not considered wages under the statute. See Miller v. C. C. Meisel Co., Inc., 183 Or App 148, 157, 51 P3d 650 (2002) 

(wages include compensation such as a promise to pay a manager 20 percent of 

the added value to the company).
Cite as 334 Or App 529 (2024) 541

whether defendant unreasonably failed to give notice at all. 

Plaintiff contends that, regardless, the trial court properly 

denied fees under ORS 652.200(2) because defendant willfully violated the employment agreement. We agree with 

defendant’s interpretation of ORS 652.200(2) but remand for 

further proceedings in light of plaintiff’s argument.

We review the trial court’s interpretation of a statute for legal error. State v. Urie, 268 Or App 362, 363, 341 

P3d 855 (2014). Because the text of ORS 652.200(2) is clear 

and unambiguous and because the Supreme Court recently 

addressed its context and legislative history, a protracted discussion of the text, context, and legislative history of the statute is unnecessary to resolve the present dispute. See Gaines, 

346 Or at 171-72 (explaining how we review statutory construction.). Defendant argues that “the word ‘unreasonably’ 

is an adverb, which modifies the verb ‘fails’ in the statute” 

and that the trial court “incorrectly uses ‘unreasonably’ as 

an adjective to modify the word ‘notice.’” We recently came to 

a similar conclusion in Trent v. Connor Enterprises, Inc., 300 

Or App 165, 452 P3d 1072 (2019). In Trent, we rejected the 

argument that the court should generally evaluate whether 

notice was given “reasonably” under ORS 652.200(2) and concluded instead that the statute only creates a narrow exception to mandatory attorney fees: when an employee “unreasonably fail[s] to give written notice of the wage claim to 

the employer before filing the action.” Id. at 173 (emphasis in 

original; internal quotation marks omitted). Although here, 

the trial court ruled on the reasonableness of the amount of 

defendant’s requested wages rather than the timeliness of his 

notice, we are constrained by the text of ORS 652.200(2)—as 

we were in Trent—to construe the word “unreasonably” to 

narrowly modify an employee’s failure to give written notice 

of the wage claim before filing the action. See Johnson v. 

O’Malley Brothers Corp., 285 Or App 804, 816, 397 P3d 554, 

rev den, 362 Or 300 (2017) (“That is, by the plain language 

of the statute, the failure to give written notice is immaterial unless that failure was also unreasonabl[e].” (Brackets in 

original; internal quotation marks omitted.)).

That interpretation is corroborated by the legislative 

history and context of ORS 652.200(2), which suggest that 
542 Summit RWP, Inc. v. Hallin

the construction of the statute is designed to give employers 

prefiling opportunities to pay unpaid wage claims. Mathis 

v. St. Helens Auto Center, Inc., 367 Or 437, 446-47, 478 P3d 

946 (2020) (“Thus, liability for fees under ORS 652.200(2) 

arises in a context that assumes that the employer will have 

had multiple prefiling opportunities to avoid incurring the 

obligation to pay the employee’s attorney fees—first by paying all wages when due, next by paying the outstanding 

wage obligation at least within the 48-hour grace period, 

and finally even by paying the outstanding wage obligation 

at any time before the employee has located an attorney and 

filed an action.”).

Ultimately, the employer has the obligation to pay 

an employee any unpaid wages in the amount due. An 

employee may be incorrect in estimating the amount due 

when giving written notice, but that does not mean the 

employee unreasonably failed to give notice if the notice 

was otherwise timely as provided under ORS 652.200(2): 

namely, before the employee filed the action. The employer 

still has the obligation to pay the wages that are, in fact, 

due. See Mathis, 367 Or at 446 (“Oregon’s wage statutes also 

impose obligations on employers to know what wages are 

due and when those wages are payable.”). Accordingly, we 

conclude that the trial court erred in denying attorney fees 

to defendant on that basis because defendant’s demand letter, which defendant’s attorney sent before defendant filed 

his counterclaim for unpaid wages, gave plaintiff adequate 

written notice under ORS 652.200(2).

As noted, plaintiff argues that the trial court correctly denied defendant’s attorney fees under a different 

exception to mandated attorney fees under ORS 652.200(2): 

when an employee willfully violates the contract of employment.10 Plaintiff raised that argument to the trial court and 

developed that argument with evidence in the record, but 

the trial court did not make any findings on that issue. So, 

10 Plaintiff makes two other arguments that we summarily reject. First, 

plaintiff argues that defendant was not entitled to the fourth quarter 2020 bonus 

in the first instance. Second, plaintiff argues that there was no evidence to establish when the due date for payment of fourth quarter 2020 bonus occurred. We 

addressed identical arguments in plaintiff’s cross-assignment to defendant’s 

third assignment of error and reject them for the same reasons.
Cite as 334 Or App 529 (2024) 543

although we agree with plaintiff that a determination by 

the trial court that defendant willfully violated the contract 

of employment would preclude defendant from recovering 

mandatory attorney fees under ORS 652.200(2), we exercise 

our discretion to remand the question to the trial court so 

that it may rule on whether defendant willfully violated the 

employment contract in the first instance. See Sherertz v. 

Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021), 

rev den, 369 Or 338 (2022) (“If the argument is properly presented again on appeal and raises a question of law, we may 

simply resolve it, typically remanding only if it is necessary 

for the trial court to make factual findings from conflicting 

evidence, exercise discretion, or the like.”).

PLAINTIFF’S ATTORNEY FEES FOR ITS BREACH OF 

CONTRACT CLAIM

We now turn to defendant’s sixth assignment of 

error, in which he contends that the trial court erred when it 

awarded plaintiff its attorney fees under a prevailing party 

attorney-fee provision in the parties’ employment agreement. That award of attorney fees is reflected in the supplemental judgment.

In the trial court, plaintiff moved for its attorney 

fees under the employment agreement, which the trial court 

granted after it concluded that defendant breached that 

agreement by violating the nonsolicitation clause. Defendant 

first argues that plaintiff should not have prevailed on its 

breach of contract claim and thus should not have been 

awarded attorney fees as the prevailing attorney under 

the contract. Alternatively, he argues that the amount of 

fees awarded to plaintiff under that contract provision was 

unreasonable. We review a party’s entitlement to attorney 

fees for legal error. Makarios-Oregon, LLC v. Ross Dress-forLess, Inc., 293 Or App 732, 739, 430 P3d 142, adh’d to as 

modified on recons, 295 Or App 449, 430 P3d 1125 (2018). 

But when reviewing the amount of attorney’s fees rewarded, 

we review for abuse of discretion. Id.

We already concluded that the trial court did not err 

in ruling for plaintiff on its breach of contract claim after the 

court concluded that defendant breached the nonsolicitation 
544 Summit RWP, Inc. v. Hallin

clause. We therefore assess only the reasonableness of the 

amount awarded to plaintiff for its attorney fees. Having 

reviewed the amount of the award for abuse of discretion in 

light of defendant’s arguments and the relevant factors in 

ORS 20.075, we conclude that the trial court did not abuse 

its discretion in awarding $60,912.50 under the attorney-fee 

section of the employment agreement.

CONCLUSION

In sum, we reject all of defendant’s assignments of 

error except for his third and fourth assignments. We also 

reject plaintiff’s cross-assignment of error. As to defendant’s 

third assignment, we conclude that the trial court erred in 

reducing the statutory penalty award under ORS 652.150 

and remand for further proceedings regarding the award. 

As to the fourth assignment, we conclude that the trial 

court erred in denying defendant his attorney fees under 

ORS 652.200(2) on that basis that it did, but we remand 

the attorney-fee issue for further proceedings to determine 

if defendant was not entitled to fees because he willfully violated the employment contract.

General judgment reversed and remanded for further proceedings consistent with this opinion; otherwise 

affirmed. Supplemental judgment affirmed.