No. 859 September 10, 2026 803
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Clarissa WINN,
Plaintiff-Appellant,
v.
BLAKESLEE VINEYARD ESTATE, INC.
and William Blakeslee,
Defendants-Respondents.
Multnomah County Circuit Court
22CV41323; A183089 (Control), A185125
Judith H. Matarazzo, Judge. (Judgment)
Melvin Oden-Orr, Judge. (Order)
Argued and submitted January 20, 2026.
Richard B. Myers argued the cause for appellant. Also
on the briefs were Bennett Hartman, LLP; and Patrick
G. Conroy, Randy J. Harvey, and Employment Law
Professionals.
Kimberley Hanks McGair argued the cause for respondents. Also on the brief were Kelly R. Tilden and Farleigh
Wada Witt.
Tyler Beyerlein and Brincat & New PC; and Nadia H.
Dahab and Sugerman Dahab filed the brief amicus curiae
for Oregon Trial Lawyers Association.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.*
KAMINS, J.
Affirmed.
Lagesen, C. J., dissenting.
*
Lagesen, C. J., vice Pagán, J.
804 Winn v. Blakeslee Vineyard Estate, Inc.
Cite as 352 Or App 803 (2026) 805
KAMINS, J.
Plaintiff appeals a judgment dismissing both her
individual and class action wage violation claims. Plaintiff
alleged that her former employer, defendant,1 deducted money
from her and her coworkers’ paychecks in violation of ORS
652.610(3), which prohibits employers from improperly withholding, deducting, or diverting any portion of an employee’s
wages. The trial court granted defendant’s motion to dismiss the class action claims under ORCP 32 I, a provision
of the class action rule that allows a defendant the opportunity to cure the alleged violations and, as a result, have the class action complaint dismissed. As part of that decision,
the trial court interpreted the statute to provide a remedy
of “actual damages or $200” per category of defendant’s statutory violations, rather than per paycheck, as plaintiff had
requested. See ORS 652.615 (providing for “a private cause
of action for a violation of ORS 652.610(3) for actual damages or $200, whichever is greater”). Approximately three
months later, the trial court sua sponte dismissed plaintiff’s individual claims for failure to prosecute after counsel for
plaintiff failed to respond to a trial-setting notice. Because the trial court did not err in any respect, we affirm.
According to plaintiff’s complaint, she worked as
an hourly paid employee at defendant’s wine tasting room
for about eight months in 2022. After plaintiff resigned in
September 2022, she filed a lawsuit on her own behalf and
as a class action on behalf of all affected employees of defendant, alleging several different types of wage violations.
Plaintiff’s allegations can generally be summarized as the
improper appropriation of employees’ tip money, a failure to
compensate employees for the entirety of the hours worked,
and the improper deduction of bonuses from employees’ paychecks. Defendant responded by moving to dismiss pursuant to ORCP 32 I, arguing that it had cured the alleged
violations. In support of that motion, defendant provided
evidence that it had notified all affected employees of the
alleged violations and its plan to compensate them.
1
Plaintiff sued both the business that employed her and the president of the business. For ease of reading, in this opinion we refer to both as “employer” or “defendant.”
806 Winn v. Blakeslee Vineyard Estate, Inc.
The trial court held a hearing on defendant’s motion
and determined that the notice that defendant provided was
insufficient to meet the requirements of ORCP 32 I. The
court abated the case for 60 days to allow defendant to supplement its notice to include additional information about
the nature of the lawsuit and available remedy as well as
to ensure that it was sent to all affected employees. As to
that remedy, the trial court resolved a dispute between the
parties over the meaning of the statutory damage provision
contained in ORS 652.615 (providing for “a private cause of
action for a violation of ORS 652.610(3) for actual damages
or $200, whichever is greater”). Plaintiff argued that that
provision meant that each employee should be awarded the
$200 statutory damage remedy per paycheck containing
an unlawful deduction, while defendant argued that it was
available per type of statutory violation. The court agreed
with defendant and required the notice to alert class members that they would be entitled to actual damages or $200
for each category of violation. Because it determined that
defendant complied with ORCP 32 I’s notice and cure provisions, the trial court dismissed the class action lawsuit and
allowed plaintiff’s individual claims to proceed.2
CLASS ACTION CLAIMS
In plaintiff’s first assignment of error, she contends
that the trial court erred in granting defendant’s motion to
dismiss the class action claims pursuant to ORCP 32 I. That
rule allows a defendant who offers “the appropriate compensation, correction, or remedy of the alleged wrong” to seek
dismissal of a class action claim for damages. On appeal,
plaintiff argues that the trial court improperly fashioned its own notice to class members rather than requiring defendant to satisfy its burden under ORCP 32 I. Specifically, the
trial court required defendant to communicate additional
information to the putative class members regarding defendant’s voluntary efforts at providing a remedy. However,
plaintiff did not raise any argument as to the court’s authority to modify the notice below.3
2
Plaintiff’s individual claims will be discussed in more detail below.
3
In any event, the argument fails on the merits. Nothing in OCRP 32 I would preclude the trial court from ensuring that the notice to class members was accurate and sent to the appropriate recipients. See OCRP 32 I; Stewart v. Albertson’s, Cite as 352 Or App 803 (2026) 807
Plaintiff also contends that the trial court erred
because her claim sought equitable relief in addition to damages, taking it out of the ambit of ORCP 32 I. See ORCP 32
I (“No action for damages may be maintained * * * upon a
showing by a defendant that all of the following [requirements of ORCP 32 I] exist[.]” (Emphasis added.)). The equitable relief plaintiff identifies on appeal is the complaint’s assertion that the class is “entitled to a full accounting of
the tips and gratuities received and/or paid out by defendants, and to an equitable award of any amounts to which
such accounting demonstrates that they are entitled.” By its
terms, these allegations seek an accounting in service of the
claim for damages. Plaintiff does not allege a partnership
or other type of relationship that could justify an equitable
claim for accounting. See Carey v. Hays, 243 Or 73, 79, 409
P2d 899 (1966) (describing partnership accounting). Rather,
the type of “accounting” plaintiff requests could be determined through pretrial discovery. In those circumstances,
“[t]he fact that the complaint mentions an accounting does
not convert the cause into an equity suit.” Lieuallen v.
Heidenrich, 259 Or 333, 335, 485 P2d 1230 (1971); see also
Thompson v. Coughlin, 329 Or 630, 638, 997 P2d 191 (2000)
(“Neither is a complaint’s request for equitable relief, ancillary to a purely legal right, sufficient to bring a case within the province of equity.”).
As to the damages available for the class claims,
plaintiff argues that the trial court erred in concluding
that the class members are entitled to statutory damages
contained in ORS 652.615 for each category of violation of
ORS 652.610(3). Rather, plaintiff contends that class members are entitled to statutory damages for each paycheck for
which the employer made unlawful withholdings because
each paycheck containing an unlawful deduction amounted
to a statutory violation. Amicus curiae Oregon Trial Lawyers
Association (OTLA) urges us to go one step further and
interpret the statute as providing for a statutory $200 damage for each discrete instance that the employer made any
unlawful deduction. We review the construction of a statute
Inc., 308 Or App 464, 479-80, 481 P3d 978, rev den, 368 Or 138 (2021) (describing trial court’s role in determining the appropriate remedy for purposes of ORCP 32 I).
808 Winn v. Blakeslee Vineyard Estate, Inc.
for legal error and the trial court’s determination as to what relief is appropriate under the circumstances for an abuse of
discretion. Stewart v. Albertson’s, Inc., 308 Or App 464, 486, 481 P3d 978, rev den, 368 Or 138 (2021).
Plaintiff’s argument presents an issue of statutory
construction that requires a review of the statute’s text, context, and, if helpful, legislative history. State v. Gaines, 346 Or 160, 164-65, 206 P3d 1042 (2009). The text of the provision at issue, ORS 652.615, provides:
“There is hereby created a private cause of action for a
violation of ORS 652.610 (3) for actual damages or $200,
whichever is greater.”
(Emphasis added.)
The question we must answer is when “a violation”
of ORS 652.610(3), which triggers the statutory damage
amount of $200, occurs.
The private right of action—and concomitant damages provision—was first enacted in 1980 and codified as
part of ORS 652.610, the same section setting forth the wage
violations. Or Laws 1980, ch 1, § 2. Prior to that enactment,
the sole mechanism to enforce violations of the wage provisions was through criminal prosecution. ORS 652.990(8)
(1979), amended by Or Laws 1999, ch 1051, § 215. According
to the bill’s proposer, the Oregon Legal Services Corporation, however, no criminal action had ever been taken to enforce
the statute’s provisions. Tape Recording, Senate Committee
on Labor, Consumer and Business Affairs, SB 458, Feb 23,
1979, Tape 8, Side A, at 29:35 (statement of Dick Ginsburg).
Accordingly, a private right of action was proposed to ensure
that the pre-existing prohibitions against wage violations
contained in ORS 652.610(3) would be enforced. That private right of action is now codified at ORS 610.615.
Looking to the text of that section is not particularly helpful in determining when the legislature intended
the statutory damage to be applied. Again, the language
of that section provides: “There is hereby created a private
cause of action for a violation of ORS 652.610 (3) for actual
damages or $200, whichever is greater.”
Cite as 352 Or App 803 (2026) 809
Because the legislature did not define the phrase “a
violation,” we look to the term’s ordinary meaning. See State
v. Hubbell, 371 Or 340, 349, 537 P3d 503 (2023) (when the legislature has not defined a particular word or phrase, we generally “presume that the legislature intended those terms to
be understood in their ordinary sense”). Violation in this context is defined as “an infringement or transgression,” as in an infringement of the statutory provisions defining wage violations. Webster’s Third New Int’l Dictionary 2554 (unabridged
ed 1976). Understanding that meaning, however, provides little insight into the question of when a violation occurs; that infringement could occur each time an amount is deducted,
each paycheck containing such a deduction, or in the aggregate for all improper deductions of the same type.
Perhaps because the definition of “violation” is not
helpful, both parties focus their argument on the meaning
of the article “a” that modifies “violation.” Citing MerriamWebster’s online definition of an “indefinite article,” plaintiff argues that “a” is “used in English to refer to a person
or thing that is not identified or specified.” So, according to plaintiff, “a violation,” refers to a singular discrete event
constituting a violation without identifying which particular violation is specified. According to plaintiff that occurs every time an event that constitutes a violation occurs,
namely, when an employer pays wages in a manner that violates ORS 652.610(3). OTLA offers a different analysis: that
“a” is a function word before a singular noun followed by a
restrictive clause—that is, a penalty connects to each individual act of violation such that each improper deduction
is itself an independent violation. Defendant counters that
those interpretations improperly replace the word “a” with
“each.” Defendant’s construction echoes the trial court’s:
that “a violation” refers to the general category of violation contained in ORS 652.610, not each instance of its occurrence (as in, the act of improperly deducting lunch breaks,
not each instance of the deduction).
Ultimately, there is little to be gained from parsing
the word “a.” As the federal district court for the District of Oregon observed when construing the same statutory provision, the use of “a” could reflect a legislative intent to make 810 Winn v. Blakeslee Vineyard Estate, Inc.
the $200 penalty available for “each” improper instance of a
violation, but it is “equally plausible that the legislature did not wish to use the plural ‘violations’ because doing so would wrongly suggest that a cause of action was only available to
a plaintiff whose employer violated ORS[ ]652.610(3) multiple
times, or at least more than once.” Brinkman v. ABM Onsite
Services - West, Inc., 383 F Supp 3d 1120, 1124 (D Or 2019).
The statutory context offers several, more helpful,
clues as to legislative intent. As noted, the precursor to the private right of action now located in ORS 652.615 was a
criminal provision. That statute provided that a “[v]iolation
of ORS 652.610 * * * is punishable, upon conviction, by a fine of not less than $10 nor more than $100 for each offense.”
ORS 652.990(8) (1979) (emphasis added). When the legislature added a private right of action for the same violation,
it did not import the word “each”; rather, it chose to provide damages for “a” violation, suggesting that it did not intend
to carry over the statutory framework attaching damages to
each occurrence of a violation. See Belinskey v. Clooten, 237
Or App 106, 111, 239 P3d 251 (2010), rev den, 349 Or 601
(2011) (observing that wording changes are relevant context
for purposes of statutory construction and that “new language in a statute ordinarily signals a change in the statute’s meaning”).
Additionally, as defendant points out, a similar provision in the same section provides an additional hint as to
the legislative intent. ORS 652.100(1) prohibits an employer
from requiring an employee to falsify time records, a violation that involves willful conduct. The following subsection
provides a remedy for “each” time the employer engages in
such wrongful conduct, and specifies that each pay period
constitutes a separate violation:
“(2) In addition to any other remedy provided by law,
an employee has a private cause of action for a violation of
subsection (1) of this section. The court may award actual
damages or $1,000 for each violation, whichever is greater,
injunctive relief, attorney fees and costs. The court shall
count each pay period in which a violation occurs or continues as a separate violation.”
ORS 652.100(2) (emphases added).
Cite as 352 Or App 803 (2026) 811
That the legislature provided specific instructions
as to when each pay period amounts to a separate wage violation in certain contexts suggests that that is the language
it would use to signify that each pay period is a separate
wage violation in other contexts. Typically, the legislature’s use of different words in similar circumstances—within
the same statutory chapter—suggests it intended to mean
something different. See State v. Gardner-Rolph, 345 Or App
681, 690, 584 P3d 270 (2025), rev den, 375 Or 261 (2026) (“If
the legislature uses different terms in statutes, we generally will assume that the legislature intends different meanings for those terms.”); Jack L. Landau, Oregon Statutory
Construction, 97 Or L Rev 583, 669-70 (2019). The absence of
such an instruction in a different section of the same chapter reflects an intent not to count each “pay period” as a
separate violation for purpose of ORS 652.615.
The legislative history lends further support to the
conclusion that the legislature did not intend the statutory
damage to stack by pay period. As noted, the reason that the
legislature added the private right of action was to ensure
that the preexisting statutory violations would be enforced,
and, as explained by a director of the Legal Services
Corporation, the bill is “very much a victims’ compensation
bill where the wrongdoer, the employer, would be compensating the victim.” Tape Recording, Senate Committee on
Labor, Consumer and Business Affairs, SB 458, Feb 23,
1979, Tape 8, Side A, at 29:35, 32:06 (statement of Dick
Ginsburg).
But the bill faced substantial opposition in committee, driven by a concern over spiraling costs for employers. In both the Senate and House committees, lawmakers
demanded that the Legal Services Corporation provide evidence of documented cases to demonstrate that enforcing
wage violations was really a problem. Id. at 41:50 (statement of Sen George Wingard). And in the House Labor
Committee, one legislator brought up a recent newspaper
article and read a portion into the record: “Legal costs are
high because of the adversarial roles we have in the system
right now * * *. We need a system that will minimize litigation.” Tape Recording, House Labor Committee SB 458,
812 Winn v. Blakeslee Vineyard Estate, Inc.
Tape 37, Side A, at 1:35:36 (June 20, 1979) (statement of Rep
Joe Rogers).
In committee, the bill was modified in several ways
to address the concerns that employers could be harmed
by the new private right of action. First, the initial bill
required courts to award attorney fees only to successful
employees. SB 458, § 2 (1979). At the bill’s work session in the House Labor Committee, a legislator pushed back: “There
is the expense of attorney fees. The assumption I guess is
always made that every firm is a Weyerhaeuser GeorgiaPacific. What’s $200 or $2,000 in legal fees? * * * There are
many small employers, small persons, small corporations,
partnerships that can get zinged by this.” Recording, House
Committee on Labor, Consumer and Business Affairs, SB
458, June 22, 1979, Tape 38, Side A, at 28:13 (statement
of Rep Joe Rogers). Addressing that concern, the final bill
allowed (rather than required) the court to award costs and
fees to the prevailing party (not just the employee). Or Laws
1980, ch 1, §§ 1, 2.
Specific to the statutory damage provided in the
bill for a violation of ORS 652.610(3), the initial draft authorized up to $500. At a work session in the Senate committee,
the bill’s sponsor, Senator Kulongoski, proposed an amendment that that amount be reduced. Tape Recording, Senate
Committee on Labor, Consumer and Business Affairs, SB
458, May 31, 1979, Tape 29, Side B, at 3:25:20 (statement
of Sen Theodore Kulongoski). Later in that work session,
Kulongoski stated that the Bureau of Labor has a backlog,
and “with the $200” statutory damage, the amount was low
enough that an issue “would probably” be litigated in district court,4 where it could be resolved “very quickly.” Id. at 3:26:45. A representative of the Legal Services Corporation
observed that, “in addition to that, with the $200, someone
could even go to small claims court.” Id. at 3:27:04 (statement of Anita Paulsen).
In response to that comment, Senator George
Wingard suggested that the legislature “fix” it so that
4
District courts in Oregon previously had exclusive jurisdiction of claims for money or damages not exceeding $3,000. Former ORS 46.060 (1979), repealed by Or Laws 1995, ch 656, §127.
Cite as 352 Or App 803 (2026) 813
employees would be required to pursue their remedy in
small claims court. Id. at 3:27:20 (statement of Sen George
Wingard). Senator Kulongoski rejected that suggestion
because there may be “some times” when the claim for actual
damages exceeds the statutory damage amount, taking it out
of small claims court jurisdiction. Id. at 3:27:40 (statement
of Sen Theodore Kulongsoki). In response, Senator Wingard
observed that there was a bill pending that would increase
small claims jurisdiction to $1,000, which should address
that concern. Id. at 3:29:20 (observing that “we don’t want to turn this into a plaintiff’s attorney bill, we can take care of the people”). In support of limiting the jurisdiction to small claims court, Senator Wingard observed that he wanted to
help employees, but was worried that the bill could lead to
employers being the ones that need help “when you allow it
to be profitable for someone to get into that process. That’s
what our courts are full of now.” Id. at 3:32:05.
It would be incongruent with the legislature’s concern over minimizing the cost for employers to construe
the $200 statutory damage—a much larger value in 1979
than today—as one that stacks each time the same violation
occurs. Specifically, the discussion that the statutory damage amount was low enough to allow the claim to proceed
in district or small claims court reveals that no legislator
thought that the $200 itself would stack because that would
quickly remove the case from courts of limited lower value
jurisdiction. And the reason that the statute was not limited
to small claims court, according to the bill’s sponsor, was
that, while the statutory damage amount would allow for
such jurisdiction, the actual damages might be too high.
Finally, according to the Legal Services Corporation,
the provision at issue was modelled on ORS 652.150,5 which
provides for statutory damages for failure to pay wages
on termination of employment. Tape Recording, Senate
Committee on Labor, Consumer and Business Affairs, SB
458, Feb 23, 1979, Tape 8, Side A, at 30:04 (statement of Dick Ginsburg). That statute clearly limits the extent of statutory damages an employer can be subject to, capping the amount
5
The statute has been subsequently amended; for ease of reading, we cite to the version of the statute at the time of the legislative discussion of SB 458. 814 Winn v. Blakeslee Vineyard Estate, Inc.
of damages at 30 days of wages. ORS 652.150 (1979), amended
by Or Laws 1991, ch 966, § 2; Or Laws 1995, ch 501, § 1; Or
Laws 2001, ch 690, § 1; Or Laws 2003, ch 779, § 1; Or Laws
2005, ch 664, § 2; Or Laws 2011, ch 348, § 2.6 To the extent
that that damages cap can provide guidance as to whether
“a violation,” as provided in ORS 652.615, occurs each time
a deduction or paycheck is issued or as an aggregate of the
commission of a type of violation, it does not support a reading that each violation triggers an additional penalty.7
Faced with the clarity of that legislative history,
plaintiff argues that the structure of the “original session
law” supports the argument that the legislature intended
the $200 damage to apply per paycheck. Plaintiff points out
that the first section of the original session law required an employer to provide an employee with an itemized statement
on each regular payday, and the second section required that
statement be provided whenever an employee gets paid, both
of which correlate to current ORS 652.610(1) and (2). Or Laws
1980, ch 1, §§ 1, 2. The third section of the original session law correlates to ORS 652.610(3) and sets forth the statutory
violations at issue in this case—improper withholdings or
deductions from an employee’s pay. Id. at § 3. The fifth section of the session law, now codified at ORS 652.615, provides for the private right of action. Id. at § 5. Plaintiff argues that that organizational structure, with the private action following the requirement of an itemized statement per paycheck
and a list of prohibitions, indicates that those prohibitions
and correlated damages also apply per pay period.
6
ORS 652.150 (1979) provided:
“If an employer wilfully fails to pay any wages or compensation of any
employe who is discharged or who quits his employment, as provided in ORS
652.140, then, as a penalty for such nonpayment, the wages or compensation
of such employe shall continue from the due date thereof at the same rate
until paid or until action therefor is commenced; provided, that in no case
shall such wages or compensation continue for more than 30 days; and provided further, the employer may avoid liability for the penalty by showing
his financial inability to pay the wages or compensation at the time they
accrued.”
7
The dissent posits an alternate construction based on the clarity of the statutory text and without reference to the legislative history. ___ Or App at ___ (Lagesen, C. J., dissenting) (slip op at 1-3). However, plaintiff, amicus, and the dissent all posit different interpretations of that text, suggesting that it is not a model of clarity.
Cite as 352 Or App 803 (2026) 815
The problem with plaintiff’s argument is that those
statutory subsections (the first, second, and third section
of the session law) were preexisting, and the private right
of action was simply tacked on to the end of the statute.
Indeed, in the very next legislative session, the legislature
relocated the private right of action into its own provision.
The explanation from the proposer of that edit was simply
that the private right of action had previously “sort of wound up in the wrong place.” Tape Recording, Senate Committee
on Labor, Consumer and Business Affairs, SB 458, June 9,
1981, Tape 113, Side A, at 28:17 (statement of Wage & Hour
Commission representative Paul Tiffany). Given that the
private right of action was simply added to the end of the
statute, we cannot glean the same meaning as plaintiff from
the existence of the preexisting provisions of that statute.
Our interpretation that the damages were intended
not to apply per deduction or pay period, but rather by type
of violation is consistent with the Oregon Supreme Court’s
reading of other statutes with similar damage provisions.
In Shepard Investment Group LLC v. Ormandy, the Oregon
Supreme Court considered a similar issue in the Oregon
Residential Landlord and Tenant Act (ORLTA). 371 Or
285, 533 P3d 774 (2023). A provision of the ORTLA, ORS
90.315(4)(f), provides that a tenant may recover damages
for a landlord’s failure to disclose certain costs: “[I]f a landlord fails to comply [with certain statutory provisions] the
tenant may recover from the landlord an amount equal to
one month’s periodic rent or twice the amount wrongfully
charged to the tenant, whichever is greater.” The question
before the court was whether that language meant that a
tenant could recover the statutory damage of a month’s rent
each time that a landlord “fails to comply.” 371 Or at 294.
The court observed that the language “fails to comply” could
refer to either a discrete or ongoing violation. Id. Similarly, the language the “amount wrongfully charged” could also
be an aggregate term encompassing both discrete and ongoing violations. Id. at 295. The fact that both terms could reference the aggregate amount evinced a legislative intent to
compensate the tenant for aggregate harm. Id. Moreover,
nothing in the legislative history suggested “a legislative
intent to impose a particularly punitive penalty.” Id. at 297. 816 Winn v. Blakeslee Vineyard Estate, Inc.
Rather, the legislative history indicated a preference that
the statutory damage amount of a month’s rent represent
the “upper ceiling of potential penalties.” Id. Reading that
penalty to stack would require the court to insert the word
“each,” contrary to the mandate that reviewing court not
insert into a statute language that had been omitted. Id. at
295 (citing ORS 174.010).
Similarly, here, the statutory language—“a violation”—like “fails to comply” could refer to an aggregate
or discrete violation. And “actual damages”—like “amount
wrongfully charged”—could be an aggregate term encompassing both discrete and ongoing violations. And, as discussed above, the legislative history does not reflect an
intent to impose a particularly punitive penalty—rather, it
reflects an intent to compensate employees while keeping
costs manageable for employers. In sum, the text, context,
and legislative history evince an intent to impose a $200
statutory damage for each type of statutory violation in the
aggregate, not each discrete time the violation occurred.
INDIVIDUAL CLAIMS
In plaintiff’s second and third assignments of error,
she challenges the dismissal of her individual claims for
want of prosecution. An understanding of her argument
requires a brief summary of the procedural history below.
After the class claims were dismissed, and while the parties
were litigating attorney fees on those issues, the trial court sent plaintiff notice as to her individual claim. On August 2, 2023, the trial court notified plaintiff:
“The stipulated order setting trial date must be submitted
to the court 35 days from the date the order was sent to
the parties by the court. A 30-day notice pending dismissal
will be sent to the parties if this order is not submitted to
the court within 35 days.”
Plaintiff took no action related to that notice. On
September 15, the court issued a “notice of intent to dismiss” stating: “The court will dismiss this case in 30 days
if you do not take further action.” Plaintiff once again took
no action in response to that notice. On November 21, the
court entered a general judgment of dismissal. Plaintiff
Cite as 352 Or App 803 (2026) 817
later moved to set aside the judgment pursuant to ORCP 71,
but the trial court denied that motion.
In plaintiff’s second assignment of error, she challenges the initial entry of the judgment, and in her third
assignment of error, she asserts that the trial court abused
its discretion in denying her ORCP 71 motion to set that
judgment aside. As to plaintiff’s second assignment, she did
not preserve a challenge to the initial entry of judgment.
The first time she raised a concern with the judgment was
through the filing of an ORCP 71 motion to set aside the
judgment. Indeed, her brief on appeal identifies that motion
as where she preserved the arguments presented in support
of her second assignment of error. Accordingly, we review
the trial court’s denial of plaintiff’s ORCP 71 motion as
asserted in plaintiff’s third assignment of error.
Plaintiff argues that the entry of judgment amounts
to a “clerical mistake” under ORCP 71 A or, in the alternative, that relief from judgment was warranted due to “mistake, inadvertence, surprise, or excusable neglect” under
ORCP 71 B(1)(a). We defer to the trial court’s factual findings and review the court’s ultimate decision under ORCP
71 A and B for abuse of discretion. Hill v. Hill, 323 Or App
458, 463, 523 P3d 163 (2022). We review whether plaintiff
has established a cognizable basis for relief under ORCP 71
B for errors of law. Union Lumber Co. v. Miller, 360 Or 767,
778, 388 P3d 327 (2017).
In support of the contention that the judgment was
a clerical error under ORCP 71 A, plaintiff contends that the
rules relied on in the judgment of dismissal do not support
dismissing the case. However, for purposes of ORCP 71 A, a
clerical mistake cannot be “an error that involves the exercise of legal reasoning; rather, it is the kind of mistake in a judgment that causes the judgment, through oversight or
omission, not to reflect what occurred in the proceeding that
led to the judgment.” Fitzgerald v. Rogue Agrisource LLC,
333 Or App 555, 562, 554 P3d 838 (2024) (internal quotation
marks omitted). Plaintiff’s argument—that the rules cited
in the judgment do not legally support the issuance of a
judgment—relies on legal reasoning and analysis and therefore does not constitute a “clerical mistake” for purposes of
818 Winn v. Blakeslee Vineyard Estate, Inc.
ORCP 71 A. See Yarbrough v. Viewcrest Investments, LLC,
299 Or App 143, 158, 449 P3d 902 (2019), rev den, 366 Or
135 (2020) (“clerical mistake” is “a type of mistake or omission mechanical in nature which is apparent on the record
and which does not involve a legal decision or judgment by
an attorney”).
In support of the contention that the judgment
should be set aside due to excusable neglect under ORCP
71 B, plaintiff argues that her lead counsel suffered a concussion and contracted COVID-19 “in the same timeframe”
as the notice of dismissal for lack of prosecution and none of plaintiff’s other attorneys received that notice. She further
argues that she was actively litigating the class claims and
therefore the case was being actively prosecuted.
To be entitled to relief from the trial court’s judgment of dismissal on the ground of excusable neglect, plaintiff “was required to demonstrate that [s]he had a reasonable excuse for failing—on account of neglect—to appear or
otherwise defend [her] interests.” Reeves v. Plett, 284 Or App 852, 854-55, 395 P3d 977 (2017) (internal quotation marks
omitted). Whether a party has demonstrated a reasonable
excuse sufficient to justify setting aside a judgment requires an assessment of the totality of the circumstances that led
to the entry of the judgment sought to be set aside. Id. at
855. The focus of the inquiry is whether the totality of the
circumstances reflects that the party seeking relief from
judgment has “taken reasonable steps to protect its interests.” Id.
Assuming that plaintiff preserved her arguments
relating to excusable neglect, the trial court did not err in
determining that plaintiff failed to meet her burden. Here,
the initial trial setting notice requiring a response issued
on August 2, 2023. The subsequent dismissal notice issued
September 15 and gave plaintiff 30 days to respond and
avoid dismissal. Dismissal did not issue until November 21.
According to the exhibits submitted below, plaintiff’s counsel suffered a concussion on Augst 12 and was back to work
a week before the September dismissal notice had issued
and over a month before the expiration of the 30-day period
provided for plaintiff to respond. Judgment did not enter for
Cite as 352 Or App 803 (2026) 819
another 60 days. Counsel (who worked at a law firm with
multiple attorneys) was only absent for ten days during the
nearly 90-day time frame between the issuance of a dismissal notice and the judgment. Given those facts, the trial
court did not err in concluding that plaintiff did not demonstrate excusable neglect.
In addition to pointing to that sequence of events,
plaintiff argues that a judgment for want of prosecution of
her individual case never should have been entered because
she was actively litigating the issue of attorney fees relating to the dismissal of the class action suit. That plaintiff
was litigating an attorney fee issue in the class action does
not demonstrate excusable neglect in repeatedly failing to
respond to a trial setting notice in her individual case.
In sum, the trial court did not err in dismissing
either the class or individual claims and correctly concluded
that the statutory $200 damage provided for in ORS 610.615
is allocated per type or category of statutory violation rather than per pay period.
Affirmed.
LAGESEN, C. J., dissenting.
The majority opinion holds that ORS 652.615 authorizes the imposition of “a $200 statutory damage for each
type of statutory violation [of ORS 652.610(3)] in the aggregate, not each discrete time the violation occurred.” ___
Or App at ___ (slip op at 16). Based on that construction
of the statute, the majority opinion upholds the dismissal
of the class claims under the theory that payment of the
minimum statutory damages “for each category of violation” adequately cured defendant’s alleged repeated violations of ORS 652.610(3) for purposes of ORCP 32 I. See id.
at 14-16. Because the majority opinion’s reading is at odds
with the plain text of ORS 652.615—which authorizes the
award of specified damages for singular violations of ORS
652.610(3)—I respectfully dissent.
ORS 652.615, by its terms, provides a cause of action
for the greater of actual damages or $200 for “a violation of
ORS 652.610(3).” The use of the word “a” indicates that the
820 Winn v. Blakeslee Vineyard Estate, Inc.
legislature intended to authorize actual damages or $200
for each single violation of ORS 652.610(3). Regardless of the various meanings of the indefinite article “a,” the word refers to a single thing, in this instance, a single violation. See State v. B. Y., 371 Or 364, 375, 537 P3d 517 (2023) (notwithstanding the existence of two plausible interpretations of the indefinite article “an,” when “used with the singular noun ‘act,’ ” both
interpretations indicate that the indefinite article “refers to a single thing—here, a single act”). Thus, when ORS 652.615
is given its most natural reading, an employee has a cause of
action for the greater of actual damages or $200 for any single violation of ORS 652.610(3). Contrary to the trial court’s conclusion, had the legislature intended damages to be based
on categories of violations, rather than single violations, it would have drafted the statute in those terms. It did not.
The remaining question is what constitutes “a violation of ORS 652.610(3).” ORS 652.615. Answering that question requires an examination of the terms of ORS 652.610(3)
itself. It prohibits “withhold[ing], deduct[ing], or divert[ing] any portion of an employee’s wages” unless the withholding, deduction, or diversion complies with ORS 652.610(3)(a)
to (f). An employer thus violates ORS 652.610(3) when the
employer withholds, deducts, or diverts any portion of an
employee’s wages in a manner that does not comport with
the statutory requirements. Because any prohibited withholding, deducting, or diversion of “any portion of an employee’s wages” necessarily occurs at the time that the employer
pays the employee’s wages, see generally ORS 652.610(1)
(providing for regular pay periods), I would conclude that “a
violation of ORS 652.610(3)” occurs—and a cause of action
under ORS 652.615 accrues—each time an employer issues
a paycheck from which “any portion” of the employee’s wages
has been withheld, deducted, or diverted in a manner that
does not comply with ORS 652.610(3)(a) to (f). Under that construction of ORS 652.610(3) and ORS 652.615, an employee
is entitled to recover the greater of actual damages or $200
for each paycheck from which the employer has unlawfully
withheld “any portion” of the employee’s wages.
Because the trial court’s dismissal of the class
claims rested on a different and, in my view, incorrect
Cite as 352 Or App 803 (2026) 821
interpretation of ORS 652.615, I would reverse the dismissal
of the class claims and remand for further proceedings. As
for the dismissal of plaintiff’s individual claims for want of prosecution, I agree with the majority opinion’s analysis of
the second and third assignments of error. Nevertheless,
given my conclusion that the trial court erred in dismissing
the class claims, I would vacate and remand the dismissal
of the individual claims for the purpose of permitting the
trial court to assess in the first instance how the justifiable dismissal of the individual claims relates to the need for
further proceedings on the putative class claims.