Broyles v. Estate of Brown Through Slininger

• Jurisdiction: Oregon
• Citation: Broyles v. Estate of Brown Through Slininger, 671 P.2d 94, 295 Or. 795 (Or. 1983)
• Docket Number: No. TC,TC
• Parties: Teresa BROYLES, Respondent on Review, v. ESTATE OF Carroll Lyman BROWN, Through Arthur P. SLININGER, Personal Representative of the Estate of Carroll Lyman Brown, Petitioner on Review. A8103-01329, * CA A25385, SC 29607. . **
• Court: Oregon Supreme Court
• Decision Date: 25 October 1983

Page 94

671 P.2d 94

295 Or. 795

Teresa BROYLES, Respondent on Review, v. ESTATE OF Carroll Lyman BROWN, Through Arthur P. SLININGER Personal Representative of the Estate of Carroll Lyman Brown, Petitioner on Review.

No. TC A8103-01329, ^* CA A25385, SC 29607.

Supreme Court of Oregon In Banc. ^**

Argued and Submitted Aug. 3, 1983.

Decided Oct. 25, 1983.

James E. Griffin, Lake Oswego, argued the cause and filed the petition and briefs for petitioner on review.

Richard M. Rogers, Portland, and James Cox, Lake Oswego, argued the cause for respondent on review. Richard M. Rogers, Portland, filed the response to the petition and brief for respondent on review.

JONES, Justice.

This case presents the question of the proper procedure and test to be used in deciding whether a penalty should be assessed under ORS 19.160 for pursuing an appeal without probable cause. The Court of Appeals allowed plaintiff's motion for the assessment of such a penalty. We affirm.

Plaintiff Broyles was injured when the car in which she was riding was hit by a car driven by Carroll Brown. ¹

At trial, where Broyles sought damages for her personal injuries, she testified during cross-examination as follows:

"Q. [by defense counsel] How long was it after the impact, the crash, that Mr. Brown's car pulled up beside you?

"A. Just a matter of seconds.

"Q. Okay. Was his window down, too?

"A. Yes, it was.

"Q. Did he say anything to you then?

"A. Yes. He said--he said, 'You hurt me', or something. And then I said, 'What?' And [the driver] said,--he said something about, 'You didn't have your turn signal on', and [the driver] said, 'Yes, I did. It's still engaged.'

"And then I asked him for his name and his insurance company."

Defense counsel immediately moved for a mistrial. Even though the trial court advised plaintiff that he believed the verdict would not stand on appeal, plaintiff resisted a mistrial. The trial court stated:

"Your verdict won't stand up, [plaintiff's counsel.]

" * * *

" * * * I would do anything in the world not to grant a mistrial. I'm open to any suggestion; but I have never known of a case that survived interjection of insurance into it and survived on appeal.

" * * * "I suppose, counsel, in a sense it's your risk. You put on four or five professional witnesses. You must have an inordinate amount of expense involved in the case."

The court then ruled:

"All right, [plaintiff's counsel], I'm going to overrule the motion for mistrial. I think that you are the person--deny the motion for mistrial. I think you are the person--you and your client are the ones bearing the greatest risk in going ahead and obviously you desire to go ahead. And that's, I assume, a considered judgment on your part. I hope it works out well for you. I have grave concern about the position our appellate court will take, but I guess all we can do is try--"

The court instructed the jury to disregard plaintiff's mention of insurance and the trial continued.

The jury found for plaintiff. Following trial, defendant stipulated that plaintiff's reference to insurance was inadvertent. ²

Defendant appealed, contending that the trial court was required by law to grant its motion for a mistrial, and in the alternative, that it abused its discretion in denying the motion for mistrial upon the plaintiff's injection of defendant's insurance company in a non-responsive answer.

Neither the defendant nor the insurance company filed a supersedeas bond. Plaintiff was required to obtain a writ of garnishment against the insurance company in order to collect a portion of her judgment.

On March 16, 1983, two days prior to oral argument on the merits before the Court of Appeals, plaintiff filed a motion for the assessment of a 10 percent penalty. The Court of Appeals heard oral arguments on the failure to grant a mistrial on March 18, 1983, but the possibility of a 10 percent penalty was not discussed. The case was affirmed without opinion on April 13, 1983. 62 Or.App. 662, 662 P.2d 813 (1983). On May 4, 1983, the Court of Appeals received an affidavit from plaintiff's attorney in support of the motion for the assessment of a 10 percent "penalty," and allowed the motion. Defendant's counsel filed an affidavit in opposition which was received May 9, 1983.

Defendant petitioned this court, presenting as the sole issue the propriety of the assessment. The statute in question, ORS 19.160, states:

"Whenever a judgment or decree is affirmed on appeal, and it is for recovery of money, or personal property or the value thereof, the judgment or decree shall be given for 10 percent of the amount thereof, for damages for the delay, unless it appears evident to the appellate court that there was probable cause for taking the appeal."

Plaintiff argues that the court should use an objective standard in determining this assessment and the only inquiry should be whether the appeal raises a genuine question of law. If it does not, then the appeal was taken without probable cause and the penalty should be assessed. Affidavits concerning the subjective intent of the appellant would be irrelevant.

The plain reading of the statute justifies this interpretation. However, as far back as Coffin v. Hanner, Jennings & Co., 1 Or. 236 (1857), this court refused to assess a penalty under this statute unless it was certain whether the writ of error had been taken in other than good faith. Therefore, this court has declined to impose this discretionary penalty in a case of uncertain merit. We have also said that clear and convincing proof of bad faith in taking the appeal is necessary to support the imposition of this "penalty." Morrison v. Hall, 55 Or. 243, 244, 104 P. 963 (1909).

In Stirling v. Dari-Delite, Inc., 262 Or. 359, 491 P.2d 1168 (1971), 494 P.2d 252, 498 P.2d 753 (1972), no probable cause existed for the appeal and the appeal was part of a "long-continued and calculated scheme by defendant to prevent the enforcement of a valid obligation for which defendant had no proper defense." These facts were extreme and aggravated; therefore, we held plaintiffs were entitled to the additional amount of 10 percent of the judgment as damages. Id. 366-67, 491 P.2d 1168. We reiterated that the purpose of the statute was to impose a penalty to discourage frivolous appeals taken without probable cause for the purpose of delay. Id. at 370, 491 P.2d 1168.

We decline, today, to follow past cases that required prior to imposition of the 10 percent penalty a determination that the appeals were taken for "purposes of delay" or "in bad faith." The statute simply provides a 10 percent assessment "for damages for delay." Further, there is no reference to "bad faith" or "purposes"; the reference is to "probable cause." ³ The 10 percent assessment will be given unless there was probable cause for taking the appeal.

Under this statute as it is written, an appeal might be taken for the sole purpose to delay the payment of a money judgment so that the appellant can take advantage of favorable interest rates pending appellate decision, but no 10 percent assessment would be allowed if the appellant could prove that there was probable cause for the appeal. Also, an appellant could appeal a case in bad faith to vent emotions over a bad result or to demonstrate in principle that he or she was morally, if not legally, correct. Yet, if the appellant ultimately proved there was legal probable cause for the appeal, no 10 percent assessment would be appropriate.

To sum up, in applying ORS 19.160, the reviewing appellate court should determine:

(1) Was the judgment below for recovery of money or personal property, or the value thereof?

(2) Did the appellate court affirm that judgment?

(3) If so, the appellate court shall impose the 10 percent in damages for delay, unless the court finds, from the record, briefs, argument or otherwise, that there was probable cause for taking the appeal.

Lack of probable cause would exist when there is no objective legal basis for the appeal. The objective standard looks at the probable cause of the appeal from a reasonable lawyer's perspective. The problem involved in determining whether the appeal is or is not based on probable cause is not whether the attorney acted in the honest belief that probable cause existed, but whether any reasonable lawyer would conclude that any of the legal points asserted on appeal possessed legal merit.

The term "probable cause for appeal" does not mean probable cause for reversal of the judgment or that reversible errors were committed. It means there is presented a case in which appellant has assigned, or may assign, grounds that are open to doubt, or are debatable, or over which rational, reasonable or honest discussion may arise. State v. Iverson, 76 Idaho 117, 278 P.2d 205 (1954).

An appeal taken without probable cause represents a time-consuming and disruptive use of the judicial process. Such an appeal ties up judicial resources and diverts attention from the already burdensome volume of work at the Court of Appeals. Thus, an appeal should result in the sanctions in ORS 19.160 when it has no probable cause. Cf., In re Marriage of Flaherty, 31 Cal.3d 637, 183 Cal.Rptr. 508, 516, 646 P.2d 179 (1982).

The statute requires that "the judgment or decree shall be given for 10 percent of the amount thereof, for damages for the delay, unless it appears evident to the appellate court that there was probable cause for taking the appeal." (Emphasis added.) We read this to mean that no specific burden of proof is to be carried by any party involved in the appeal. As mentioned, the appellate court will simply make its determination from the criteria set forth above in step (3). It is assumed the parties will brief and argue the case fully. Therefore, supplemental briefs, affidavits or arguments are normally unnecessary. ⁴ Because we decide no burden of proof is required by the statute, we overrule all previous cases which...