Bachmeier v. Tuttle

Decision Date01 September 2004
Citation195 Or.App. 83,96 P.3d 871
PartiesFaith BACHMEIER and Michael Bachmeier, Appellants, v. Douglas A. TUTTLE, Defendant, and David B. Wiles; Robert May; and Ashcroft and Wiles, LLP, Respondents.
CourtOregon 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.

HASELTON, P.J.

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:

"The court shall enter judgment for the moving party if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial."

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.

In June 2001, plaintiffs brought this action, alleging claims against Tuttle and defendants for wrongful initiation of a civil proceeding. Plaintiffs' complaint alleged, in part, that defendants "had obtained information and documentation substantiating [Tuttle's] sexual abuse" of Faith and that, consequently, defendants had "acted without probable cause" in filing the complaint against plaintiffs because they were aware that the premise of Tuttle's claims—that Tuttle had not abused Faith—was false. Plaintiffs further alleged that defendants had failed to "conduct any investigation into the facts before making the determination to proceed." Finally, plaintiffs alleged that, despite their knowledge that Tuttle's claims were false, defendants had

"subjected plaintiffs to severe emotional distress in conscious disregard to plaintiffs' rights for the purposes of obtaining payment of legal fees and to further the desires of their client, Tuttle, to reap revenge and cause emotional distress and financial burden on plaintiffs."

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:

"Both parties seem to accept the proposition that the lawyer defendants lacked `probable cause' to represent Tuttle in his claim against [plaintiffs] unless they actually believed Tuttle's version of the facts. If a litigant pursues a knowingly false claim, that would be without probable cause. But a lawyer need not necessarily believe the client's version of the facts to assert those facts as either a claim or a defense. A lawyer would be acting without probable cause only if he were to bring a claim or assert a defense where the lawyer knew or should have known that there was no evidence to support a factual finding which would legally constitute the claim or defense asserted. The choice between Faith Bachmeier's and Douglas Tuttle's version of events is one of fact for a jury, no matter how much more persuasive one version might look to a lawyer evaluating the case or to a judge on a summary judgment motion."

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:

"(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."

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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    • United States
    • Oregon Court of Appeals
    • June 6, 2007
    ...the light most favorable to the nonmoving party, here plaintiff, drawing all reasonable inferences in his favor. Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004). Except where specifically noted, the following facts were Plaintiff has worked as a delivery person for United Parcel......
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    ...light most favorable to the nonmoving parties, here plaintiffs, drawing all reasonable inferences in their favor. Bachmeier v. Tuttle, 195 Or. App. 83, 85, 96 P.3d 871 (2004). Plaintiffs were involved in automobile accidents. They submitted claims for medical expenses related to the acciden......
  • SPS of Or., Inc. v. GDH, LLC
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    ...‘improper purpose’ before such a defendant can be held liable for wrongful initiation of a civil proceeding.” Bachmeier v. Tuttle, 195 Or.App. 83, 91, 96 P.3d 871 (2004). With that in mind, we turn to plaintiff's assignments of error. Plaintiff first assigns error to the trial court's denia......
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    ...of summary judgment here, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004). Before recounting the material facts in accordance with the foregoing principles, we must resolve, at least in part, a......
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1 books & journal articles
  • §25.1 Malicious Prosecution and Wrongful Civil Proceedings
    • United States
    • Torts (OSBar) Chapter 25 Misuse of Legal Procedure
    • Invalid date
    ...(1994). In case law, the term malice is sometimes referred to as "improper purpose." See, e.g., Bachmeier v. Tuttle, 195 Or App 83, 91-93, 96 P3d 871 (2004). Unlike probable cause, malice is always a question for the jury, Gustafson v. Payless Drug Stores Northwest, Inc., 269 Or 354, 366, 5......

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