Wroten v. Lenske

Citation114 Or.App. 305,835 P.2d 931
PartiesGloria J. WROTEN, Appellant, v. Reuben LENSKE, Respondent. A9010-06232; CA A69994.
Decision Date30 September 1992
CourtCourt of Appeals of Oregon

Gary Roberts, Portland, argued the cause for appellant. With him on the briefs was Schwabe, Williamson & Wyatt, Portland.

Donald C. Walker, Portland, argued the cause and filed the brief for respondent.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

WARREN, Presiding Judge.

Plaintiff appeals from a judgment on a directed verdict for defendant in this claim for wrongful initiation of a civil proceeding. We reverse.

Defendant is the principal owner of the company that held a vendor's interest in plaintiff's mother's home. In 1988, defendant advised plaintiff's mother that he intended to foreclose for default on the contract. Plaintiff's mother asked plaintiff to help her in dealing with the foreclosure. Plaintiff, who lives in California, attempted several times to contact defendant by telephone to verify the information concerning the default. She spoke with defendant's staff numerous times and spoke with defendant once. He told her that the information had been sent to her but had been returned because it had gone to an incorrect address. There was no evidence that defendant had, in fact, sent the information to plaintiff. On August 22, when plaintiff still had not received the requested information, she wrote defendant a letter in which she asserted that defendant's "ethics are illegal and/or incompetent" and that "when I talk to you directly, you lie." The letter showed that a copy had been sent to the Oregon State Bar, the Oregon Attorney General and plaintiff's brother. Defendant finally sent the information that plaintiff was seeking, on September 28.

On the basis of the letter, defendant filed an action against plaintiff, asserting that the two statements quoted above were libelous. Plaintiff's attorney wrote to defendant, telling him that the letter had not in fact been sent to the Attorney General or the Bar and asking that defendant dismiss the complaint. Defendant refused to dismiss and did not investigate whether the letter had gone to the Attorney General or to the Bar, because, according to defendant, he "didn't care to waste [his] time investigating whether the letter had been published." The complaint was dismissed later for failure to comply with a court order regarding mandatory arbitration.

After dismissal of that action, plaintiff filed this action, asserting that defendant's action was wrongful. The trial court granted defendant's motion for a directed verdict at the close of plaintiff's case and awarded him attorney fees pursuant to ORS 20.105(1).

In reviewing a directed verdict, we examine the evidence in the light most favorable to the plaintiff to determine whether there was any evidence sufficient to warrant submission of the case to the jury. Maine Bonding v. Centennial Ins. Co., 298 Or. 514, 523, 693 P.2d 1296 (1985). The elements of plaintiff's action are:

"(1) The commencement and prosecution by the defendant of a judicial proceeding against the plaintiff;

"(2) The termination of the proceeding in the plaintiff's favor;

"(3) The absence of probable cause to prosecute the action;

"(4) The existence of malice or as is sometimes stated, the existence of a primary purpose other than that of securing an adjudication of the claim; and

"(5) Damages." Alvarez v. Retail Credit Ass'n, 234 Or. 255, 259, 381 P.2d 499 (1963). (Citations omitted.)

There is no question but that defendant commenced and prosecuted a judicial proceeding against plaintiff. Its dismissal because of defendant's refusal to participate in mandatory arbitration was a termination of the proceeding in plaintiff's favor.

Defendant does not expand on his assertion that there is "[n]o evidence of malice by defendant." In the light of his testimony that his motive in filing the action was to teach plaintiff a lesson, as well as the evidence that we will discuss regarding probable cause to prosecute the action, including that defendant did not investigate whether the letter had been published because he did not care to waste his time, we conclude that a jury could find that defendant commenced and prosecuted the action for a primary purpose other than securing an adjudication of the claim. See Lambert v. Sears, Roebuck, 280 Or. 123, 134, 570 P.2d 357 (1977); Restatement (Second) Torts § 676, comment c (1977). As to proof of damages, plaintiff submitted evidence of the expenses of litigating defendant's action, including her attorney fees, and testified that, for a half year, she suffered loss of sleep, worry and stress as a result of the lawsuit. That is enough to warrant submission of damages to the jury.

The heart of this dispute relates to whether there was probable cause for defendant to prosecute the libel action. Although probable cause is ordinarily a question of law for the court, when there is a...

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  • Zamos v. Stroud
    • United States
    • United States State Supreme Court (California)
    • 19 d1 Abril d1 2004
    ...310); Ohio (Siegel v. O.M. Scott & Sons Co. (Ohio Ct.App.1943) 73 Ohio App. 347, 56 N.E.2d 345, 347); Oregon (Wroten v. Lenske (1992) 114 Or.App. 305, 835 P.2d 931, 933-934); Pennsylvania (Wenger v. Philips (1900) 195 Pa. 214, 45 A. 927); and Washington (Banks v. Nordstrom, Inc. (1990) 57 W......
  • Turner v. Thomas
    • United States
    • United States State Supreme Court of North Carolina
    • 21 d3 Dezembro d3 2016
    ...that the charge is not well founded" being sufficient to support a finding of liability (citations omitted)); Oregon, Wroten v. Lenske , 114 Or.App. 305, 308–09, 835 P.2d 931, 933–34 (defining the tort of malicious prosecution without making any reference to the continuation rule and holdin......
  • Arquette v. State
    • United States
    • Supreme Court of Hawai'i
    • 14 d5 Dezembro d5 2012
    ...(Siegel v. O.M. Scott & Sons Co. [,] 73 Ohio App. 347, 56 N.E.2d 345, 347 [ (Ohio Ct.App.1943) ] ); Oregon (Wroten v. Lenske [,] 114 Or.App. 305, 835 P.2d 931, 933–934 [ (Or.1992) ] ); Pennsylvania (Wenger v. Philips [,] 195 Pa. 214, 45 A. 927 [ (Pa.1900) ] ); and Washington (Banks v. Nords......
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    • California Court of Appeals
    • 1 d2 Julho d2 2003
    ...Epstein (Pa.Super.1999) 727 A.2d 1130, 1133-1134; Smith v. Lucia (Ct.App.1992) 173 Ariz. 290, 842 P.2d 1303, 1308; Wroten v. Lenske (1992) 114 Or.App. 305, 835 P.2d 931, 933; Wilson v. Hayes (Iowa 1990) 464 N.W.2d 250, 264; Badell v. Beeks (1988) 115 Idaho 101, 765 P.2d 126, 128; Nelson v. ......
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