456
Argued and submitted June 8; decision of Court of Appeals affirmed in part and
reversed in part, judgment of circuit court reversed in part, and case remanded
to circuit court for further proceedings November 17, 2022
STATE OF OREGON,
Respondent on Review,
v.
PATRICK RAYMOND FOX,
Petitioner on Review.
(CC 17CR07694) (CA A167616) (SC S068980)
521 P3d 151
Defendant was convicted of second- and third-degree assault after he struck
the victims with a metal chain, causing them significant injury. The trial court
ordered defendant to pay restitution for the victims’ medical bills as well as
attorney fees that the victims incurred in hiring a private attorney for representation of their interests in the criminal proceeding. On appeal, defendant
argued, among other things, that such attorney fees do not constitute “economic
damages” under ORS 137.106. The Court of Appeals rejected that argument.
Held: The trial court erred in awarding the attorney fees that the victims voluntarily incurred to protect their interests in obtaining an award of restitution
because such fees are not “economic damages” under ORS 137.106.
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.
En Banc
On review from the Court of Appeals.*
David O. Ferry, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed 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 filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Travis Eiva, Eugene, filed the brief for amicus curiae
Oregon Trial Lawyers Association.
______________
* On appeal from the Jackson County Circuit Court, Timothy Barnack,
Judge. 313 Or App 317,
496 P3d 10 (2021).
Cite as
370 Or 456 (2022) 457
WALTERS, C. J.
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.
458 State v. Fox
WALTERS, C. J.
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(2)(a). 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.
Cite as 370 Or 456 (2022) 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 P3d 446 (2016).3 He also
1
On the second-degree assault count, defendant was sentenced to a downward dispositional departure of five years of supervised probation. On the third-degree assault count, defendant was sentenced to 90 days in jail and three years
of probation.
2
The trial court did not award sums not directly relating to the criminal
case that it considered more directly connected to the property dispute. The trial
court also excluded fees requested for meetings with the victims themselves and
for reviewing the prosecutor’s evidence. The trial court apparently intended to
award only fees incurred for court appearances in the criminal case and direct
meetings with another attorney in that case.
3
ORS 31.710(2)(a) defines “economic damages” as
“objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and
rehabilitative services and other health care services, burial and memorial
expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically
460 State v. Fox
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 P3d 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
verifiable, reasonable and necessarily incurred costs due to loss of use of
property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”
4
The court excepted fees related to the property dispute between defendant
and victims as “too removed from the criminal case.” Fox, 313 Or App at 327. The
excepted fees are not at issue on review.
Cite as
370 Or 456 (2022) 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 P3d 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 P3d 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
462 State v. Fox
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 defendant’s fraudulent claim for benefits, and (2) costs
that the company incurred in the criminal prosecution in
paying nonattorney investigators for the time that they
were required to spend testifying before the grand jury and
at the criminal trial.
Id. at 584.5 In this court, the defendant argued, first, that the term “economic damages” incorporates civil law principles, including the requirement that
damages be reasonably foreseeable and, second, that, under
the American Rule, an award of attorney fees or litigation
costs is prohibited unless authorized by statute or contract.
We agreed with the defendant that the legislature
used the term “economic damages” as that term is used in
the civil law and determined that in the civil law, “the test
that a court uses to determine whether damages are too
attenuated to be recoverable is whether a reasonable person
in the defendant’s position would have foreseen that someone in the victim’s position could reasonably incur damages
of the same general kind that the victim incurred.” Id. at
597. We held that that limitation also applies when economic damages are awarded in a restitution proceeding.
5
The opinion in Ramos does not so state, but the record in that case indicated that the nonattorney witnesses had been subpoenaed by the state.
Cite as 370 Or 456 (2022) 463
Id. at 604. As to the American Rule, we began with the following description:
“Defendant is correct that in a civil action, a party is generally not entitled to an award of attorney fees or litigation
costs that that party incurs in that action, unless a statute
or contract allows for such recovery. Montara Owners Assn.
v. La Noue Development, LLC,
357 Or 333, 360,
353 P3d 563
(2015); see also Baker Botts L.L.P. v. ASARCO LLC, [
576 US
121, 126,
135 S Ct 2158],
192 L Ed 2d 208 (2015) (acknowledging the ‘bedrock principle known as the American Rule:
Each litigant pays his own attorney’s fees, win or lose,
unless a statute or contract provides otherwise.’).”
Ramos,
358 Or at 600. We went on to explain that,
“[a]lthough that limitation generally applies, its application in any particular case depends on the specific claims
and facts at issue. For example, when a plaintiff brings a
claim against a defendant for damages, the plaintiff may
seek, as an element of damages, attorney fees and costs
that the plaintiff incurred in litigation with a third party.
Montara,
357 Or at 360[;] see also Huffstutter v. Lind,
250
Or 295, 301,
442 P2d 227 (1968) (‘[A]ttorney fees are generally allowable as damages in an action against a defendant
where the defendant’s tortious or wrongful conduct involved
the plaintiff in prior litigation with a third party.’); Dan B.
Dobbs, 2 Law of Remedies § 9.2(3) (2d ed 1993) (If a defendant’s fraudulent misrepresentation causes ‘the plaintiff to
litigate with [a] third person, then the reasonable expenses
of that litigation, including the plaintiff’s own attorney
fees, are recoverable as items of damages consequent upon
the misrepresentation.’).”
Id. (emphasis in original). Accordingly, we concluded that
the defendant had overstated the civil law limitation on the
recovery of attorney fees (i.e., the American Rule) and, thus,
that his argument that the term “economic damages” necessarily excludes attorney fees and litigation costs was without merit. Id. at 601.
We then went on to consider whether, “even if we
were to apply the American Rule,” it would bar an award of
the fees and costs that the victims in that case were seeking.
We concluded that it would not. With respect to the first category of fees—those incurred in investigating the defendant’s
464 State v. Fox
fraudulent insurance claim—we said that those fees were
not fees that the company “paid to have an attorney represent it in litigation against defendant; they were expenses
that [the company] incurred because defendant filed a claim
for benefits and [the company] had to decide whether to pay
that claim.” Id. at 602. With respect to the second category
of costs—those paid to nonattorney investigators for their
time giving testimony in the prosecution of defendant—we
said the following:
“As discussed above, a restitution hearing takes place after
a defendant has been convicted of a crime; it is a proceeding in which the state seeks, as a sanction, an award of the
damages that the victim could recover if the victim were
a plaintiff in a hypothetical civil action suing the defendant for defendant’s criminal/tortious conduct. Defendant
argues that, if a victim were to bring a tort action for damages, the victim, as plaintiff, would not be able to recover
the litigation costs incurred in that action as damages and
that a victim in a restitution proceeding should be subject to the same limitation. What defendant fails to recognize, however, is that, if a victim were to bring such a tort
claim, the American Rule would not preclude the victim
from recovering fees and costs that the victim incurred as a
result of the victim’s involvement in a separate proceeding,
such as a criminal proceeding to prosecute the defendant
tortfeasor for a crime. See Osborne [v. Hay], 284 Or [133,]
141, 585 P2d 674 [(1978)] (quoting Restatement (First) of
Torts § 914, 591 (1939)).”
Id. We then went on to explain that,
“[t]herefore, even if the American Rule were to apply in restitution proceedings by analogy, an issue we reserve and
do not decide, that rule would not preclude a victim from
recovering attorney fees and costs that the victim incurred
as a result of the victim’s involvement in the underlying
criminal prosecution. A victim in a restitution proceeding
is not required to bring a separate tort action to obtain an
award of damages, and therefore the prosecution of the
defendant and the award of damages occur in the same
criminal proceeding. We conclude, however, that the combined procedure does not deprive the state from seeking,
on behalf of the victim, the same damages that the victim could have obtained if the victim had filed a separate
action, and that those damages may include attorney fees
Cite as
370 Or 456 (2022) 465
and litigation costs that the victim incurred in the underlying criminal prosecution.”
Id. at 602-03.
It is these paragraphs that the state deems determinative here. The state contends that we already have
decided that, in a restitution proceeding, the state may seek
recovery of “attorney fees and litigation costs that the victim incurred in the underlying criminal prosecution.” Here,
the state argues, those recoverable fees include the attorney
fees that the victims incurred to have their attorney appear
at hearings and participate in the criminal process. For the
reasons that follow, we do not read Ramos as going that far,
particularly when we read it in conjunction with another
case decided on the same day—State v. Kirschner, 358 Or
605,
368 P3d 21 (2016).
In Kirschner this court upheld a restitution award
for lost wages that the victim had incurred when subpoenaed
to testify at the restitution hearing. The victim in Kirschner
had lost wages because he was required to respond to that
subpoena, “not because he made an independent decision
to attend the hearing to protect his interests.” Id. at 609.
Although the victim was advancing his economic interests
in testifying at the restitution hearing, we found the subpoena to be “significant” and, given that the victim was
participating as part of a compulsory process, determined
that the rationale underlying the American Rule would not
apply.
Id.
In both Ramos and Kirschner, this court considered
the propriety of restitution for costs that a victim incurred
because a nonattorney witness (in Kirschner, the victim
himself) was required to testify in the prosecution of the
defendant. This court did not consider the propriety of restitution for attorney fees that a victim incurred by making
an independent, purely voluntary, decision to retain private
counsel to protect the victim’s interest in obtaining restitution. That is an open question that Ramos does not resolve
and that we therefore address.
In Ramos, we determined that the legislature’s purpose in creating the restitution procedure was to provide a
466 State v. Fox
“substitute” for a civil proceeding, making civil law concepts
—such as the American Rule—relevant to our interpretation of the restitution statutes.6 358 Or at 594. Further, we
determined that, although neither ORS 137.106(1) nor the
definition of economic damages in ORS 31.710(2)(a) requires
that damages awarded in restitution be limited to what
would be recoverable in a civil action, the legislative history
and evolution of the restitution statutes indicate that the
legislature did not intend to differentiate between the “economic damages” that a victim could recover as damages in
a civil action and those that the victim could recover as restitution. Id. at 592; see also State v. Islam, 359 Or 796, 806,
377 P3d 533 (2016) (concluding that the measure of economic
damages for a seller in a theft case is the same measure of
damages that would be available to the seller in a tort action
for conversion).
And, as defendant points out, we recognized in
Ramos that the American Rule is a “bedrock principle” in
civil law that Oregon has long followed—that in seeking
judgment in a civil case, each litigant pays their own attorney’s fees, win or lose, unless a statute or contract provides
otherwise. Ramos, 358 Or at 600 (citing Montara,
357 Or
at 360). In a civil action, a party generally cannot recover
attorney fees or litigation costs incurred in that proceeding
“as economic damages, unless prescribed by statute or contract.”
Id.
In Ramos, we also recognized, however, that the
American Rule does not bar all claims for attorney fees in
civil actions. For example, we explained, citing Osborne, 284
Or at 141, and the Restatement section 914, that the rule
does not bar a claim for attorney fees incurred in a third-party proceeding:
“ ‘A person who through the tort of another has been
required to act in the protection of his interests by
bringing or defending an action against a third person
is entitled to recover compensation for the reasonably
6
We again emphasize a point that we previously noted in Ramos: We do not
mean to imply that the recovery of “economic damages” turns restitution hearings into civil proceedings. Restitution is a penalty that serves a penal purpose.
However, civil law concepts inform what a court may award as “economic damages” in restitution proceedings.
Cite as 370 Or 456 (2022) 467
necessary loss of time, attorney fees and other expenditures thereby suffered or incurred.’
“Comment a states that:
“ ‘The rule stated in this Section applies where the
preceding action was brought either by a third person
or by the State and also where the present plaintiff has
been led by the defendant’s tort to take legal proceedings against a third person. …’ ”
Ramos, 358 Or at 601 (quoting same).
In this case, defendant takes the position that that
third-party exception does not apply, and, therefore, that the
American Rule controls and prohibits an award of attorney
fees incurred in this criminal proceeding. Defendant argues
that an action by the state against a criminal defendant is
not an action against a third party; it is an action against
the perpetrator of the harm. And a victim is not required to
bring such an action or to defend against it. Further, defendant contends, if a crime victim were to bring a civil action
against the crime perpetrator for damages for the injury
inflicted, the victim would not be entitled to recover the
attorney fees that the victim incurred in that civil action
and should not be permitted to do so here.
The state’s arguments that a restitution award may
include the attorney fees that a crime victim incurs when
the victim retains an attorney to participate in the perpetrator’s prosecution are three-fold: (1) that, in Ramos, this
court characterized a victim’s participation in a criminal
proceeding as defending against a third-party action, and
we should not overrule Ramos; (2) that the common-law
formulation of the American Rule is not controlling; and
(3) that victims in criminal actions are “thrust” into criminal litigation and need to defend their interests, including
“defend[ing] against the state’s prosecution by exercising
their rights through counsel in the criminal proceeding.”
To begin, we reiterate that we do not view Ramos
as resolving the question before us. There, we discussed the
third-party exception to the American Rule as a basis for
rejecting the broad argument that the defendant in that case
had made; viz., that the term “economic damages” prohibits
468 State v. Fox
recovery of all attorney fees and costs unless permitted by
statute or contract. We said that,
“although a party to a civil action will generally recover
the attorney fees and costs incurred in that action only if
a statute or contract permits their recovery qua fees and
costs, there are instances in which attorney fees and litigation costs incurred in separate litigation may be recovered
as an element of a plaintiff’s damages. Defendant’s argument that the term ‘economic damages’ necessarily excludes
attorney fees and litigation costs is without merit.”
Ramos, 358 Or at 601 (emphasis added). Thus, when the
third-party exception applies, a victim in a criminal case
may be able to recover—as damages—attorney fees incurred
in that third-party action.7 By referencing that exception,
we did not suggest that a victim’s claim for restitution is
itself a third-party action permitting the recovery of attorney fees in restitution proceedings.
We turn, then, to the American Rule itself and defendant’s argument that it precludes the victims from recovering, in restitution, the attorney fees that they incurred in the
underlying criminal proceeding. Under the American Rule,
if a victim of a crime were to file a civil action to recover
for the injuries and resulting economic damages that the
victim suffered at the hands of the criminal defendant, the
victim would not be entitled to recover the attorney fees
incurred in that civil proceeding unless permitted by statute or contract. Applying the American Rule, each litigant
would pay their own attorney fees. Here, of course, the victims did not file a civil tort action for damages incurred due
to defendant’s assault; they were entitled to have the state
act on their behalf and recover those damages, as a penalty
in the criminal case, in restitution. But, when the state did
so, it was entitled to seek only “economic damages.” ORS
137.106(1)(a). As noted, Ramos instructs that, in using that
term, the legislature did not intend to differentiate between
the “economic damages” that a victim can recover as damages in a civil action and those that the victim can recover
7
That exception applies, for example, when a perpetrator’s action requires
the victim to bring an action against a party other than the perpetrator or the
state, such as an action to recover stolen property from a transferee.
Cite as 370 Or 456 (2022) 469
as restitution in a criminal case. Because the term “economic damages” does not include the attorney fees that a
civil claimant chooses to incur to obtain those damages in
a civil action, that term also does not include the attorney
fees that a victim chooses to incur to protect their interests
in obtaining those same damages in a criminal proceeding.
The state’s final argument urging a different result
rests on its view that, in criminal prosecutions, victims
are in a different posture than are plaintiffs seeking damages. The state contends that victims in criminal actions
are “thrust” into that litigation and need to defend their
interests, including “defend[ing] against the prosecution
by exercising their rights through counsel in the criminal
proceeding.”
We are not persuaded that the legislature intended
that result. When victims choose to incur attorney fees in
a criminal proceeding to protect their interests in obtaining an award of restitution, they are not required to do
so. Although, as the state argues, victims have a right to
restitution under Article I, section 42(1)(d), of the Oregon
Constitution, and although victims are entitled to employ
counsel to assist in its recovery, victims are neither required
to seek restitution nor to hire lawyers to assist them in that
effort. Rather, ORS 137.106(1)(a) requires the prosecutor to
investigate and present “evidence of the nature and amount
of damages” that a victim incurs. We conclude that the legislature did not intend to permit courts to award, as “economic
damages,” the attorney fees that a victim chooses to incur
in a criminal case to protect their interest in obtaining an
award of restitution.
Here, the victims engaged counsel to represent
them in a civil property dispute. Their neighbor assaulted
them, and, in the resulting criminal prosecution for that
crime, the victims engaged that same counsel to advance
their interests in the criminal prosecution. The victims’
attorney appeared at hearings in the criminal proceeding
in an effort to obtain defendant’s conviction, and, at the sentencing hearing, the victims’ attorney argued against the
prosecutor’s recommended prison sentence in order to advocate for the victims’ ability to better recover restitution from
470 State v. Fox
defendant. We conclude that, in this case, the trial court
erred in awarding the resulting attorney fees as restitution.8
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.
8
That conclusion makes it unnecessary for us to reach defendant’s additional
argument that, as a matter of law, such fees are neither reasonably foreseeable
nor necessarily incurred.
