Bachmeier v. Tuttle
Decision Date | 01 September 2004 |
Citation | 195 Or.App. 83,96 P.3d 871 |
Parties | Faith BACHMEIER and Michael Bachmeier, Appellants, v. Douglas A. TUTTLE, Defendant, and David B. Wiles; Robert May; and Ashcroft and Wiles, LLP, Respondents. |
Court | Oregon Court of Appeals |
Michael S. Morey, Lake Oswego, argued the cause and filed the briefs for appellants.
Peter R. Mersereau, Portland, argued the cause for respondents. On the brief were Thomas W. McPherson and Mersereau & Shannon, LLP.
Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.
Plaintiffs appeal, assigning error to the allowance of summary judgment against their claim for wrongful initiation of a civil proceeding against defendants, two attorneys and their law firm.1 Plaintiffs contend, inter alia, that, in opposing summary judgment, they proffered legally sufficient evidence that defendants filed the prior litigation without probable cause and that they did so for an improper purpose. As described below, we conclude that plaintiffs' evidentiary submissions did not raise a genuine issue of material fact that defendants, in filing the prior action on their client's behalf, acted with "a primary purpose other than that of securing an adjudication of the claim." Alvarez v. Retail Credit Ass'n, 234 Or. 255, 260, 381 P.2d 499 (1963). Accordingly, we affirm.
ORCP 47 C prescribes the standards for the allowance of summary judgment:
Consistently with that standard, in reviewing the allowance of summary judgment, we draw all reasonable inferences in favor of plaintiffs, the nonmoving parties. Johnstone v. Zimmer, 191 Or.App. 26, 32, 81 P.3d 92 (2003).
So viewed, the record discloses the following facts: In 1986, when plaintiff Faith Bachmeier (Faith) was 15, she disclosed to a church youth teacher that she had been abused by her uncle, Douglas Tuttle. According to Faith, Tuttle had sexually abused her for approximately five years, when she was between the ages of 8 and 13. The teacher told the church pastor about Faith's disclosure, and, in response to inquiries by the pastor, Tuttle admitted that he had abused both Faith and her sister.
In 1999, Faith consulted with an attorney, Morey, about filing a civil action against Tuttle, seeking damages for the abuse. In March 1999, Morey prepared a draft complaint and delivered it to Tuttle. That complaint alleged that Tuttle's abuse caused Faith suffer severe physical, emotional, and psychological harm and sought damages in excess of $2 million. In response, Tuttle retained defendants Wiles and May and their law firm to defend him in that threatened action and to explore possible civil remedies against Faith for making statements that Tuttle deemed to be false and defamatory. Tuttle told defendants that he had never abused Faith.
Defendants contacted Morey to discuss the parties' contentions. As a result of those conversations, Morey sent defendant Wiles a letter that detailed evidence that, in Morey's view, substantiated Faith's charges, including a statement from the pastor to whom Tuttle had admitted the abuse in 1986. Morey enclosed a copy of that statement for defendants' review. In addition, Morey's letter outlined his response to an anticipated defense that Faith's claims were time-barred.
Defendants discussed the pastor's statements with Tuttle. Tuttle reiterated that he had never abused Faith and posited that the pastor must have been confused because he had told the pastor that he had abused Faith's sister, and not Faith.
Ultimately, Faith did not file the contemplated action against Tuttle. However, in early 2000, Tuttle instructed defendants to prepare a complaint against Faith, alleging claims based on her statements that Tuttle had abused her. Those claims were particularly predicated on events alleged to have occurred in June 1998.
In May 2000, at Tuttle's instance, defendants filed an action against Faith in federal court, alleging claims of defamation, false light, and intentional infliction of emotional distress. At the time they filed that action, defendants erroneously believed that all three of those claims were governed by a two-year statute of limitations.2 Approximately one week later, defendants filed an amended complaint, based on the same June 1998 events, naming Faith's husband, plaintiff Michael Bachmeier, as an additional defendant. In early August 2000, defendants obtained leave of the court to withdraw as Tuttle's counsel. Tuttle proceeded pro se and, in September 2000, voluntarily dismissed the federal court action.
Defendants moved for summary judgment, raising a variety of arguments. Of particular pertinence to our review, defendants contended that plaintiffs could not adduce legally sufficient evidence that (1) defendants had initiated Tuttle's federal court action against plaintiffs without having probable cause to bring that action; and (2)defendants acted for a primary purpose other than securing an adjudication of Tuttle's claims.3 Defendants asserted that they had probable cause to file the federal court action because, based both on Tuttle's representations to them and on their own investigation, they reasonably believed at the time that action was filed that there were valid factual and legal bases for each of the three claims. Further, defendants argued that there was "no evidence whatsoever that the attorney defendants acted with ill will, hostility or any other improper motive towards these plaintiffs when they filed the underlying civil action."
The trial court granted summary judgment, concluding that plaintiffs had failed to raise a genuine issue of material fact as to whether defendants, in filing the federal court action, did so without probable cause:
Given its conclusion that plaintiffs could not establish that defendants had acted without probable cause, the court did not address defendants' additional, and alternative, contention that they were entitled to summary judgment because plaintiffs had failed to make a prima facie showing that defendants had acted for a primary purpose other than securing an adjudication of their client's claims.
On appeal, the parties reiterate their arguments and responses before the trial court. We do not address the bulk of those contentions—and, necessarily, imply no view as to their merits—because one matter is dispositive: In opposing summary judgment, plaintiffs failed to adduce legally sufficient evidence that defendants acted for an improper purpose in bringing the federal court action on their client's behalf.
Alvarez, 234 Or. at 259-60, 381 P.2d 499, describes the elements of the tort of wrongful initiation of a civil proceeding under Oregon law:
Plaintiffs' argument as to the sufficiency of their proof of "improper purpose" proceeds from two premises. First, contrary to the trial court's determination, a reasonable juror...
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