D.W.C. v. Carter

• Decision Date: 20 February 2014
• Docket Number: C114699CV, C114700CV; A149922 (Control) A149923.
• Parties: D.W.C., Petitioner–Appellant, v. Breck CARTER, Respondent–Respondent.
• Court: Oregon Court of Appeals

261 Or.App. 133

323 P.3d 348

D.W.C., Petitioner–Appellant,

v.Breck CARTER, Respondent–Respondent.

C114699CV, C114700CV; A149922 (Control) A149923.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 2012.

Decided Feb. 20, 2014.

Jessica A. Skelton argued the cause for appellant. With her on the brief was Legal Voice.

No appearance for respondent Breck Carter.

No appearance for respondent Robert Bosket.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

ORTEGA, P. J.

In this consolidated appeal, petitioner appeals judgments dismissing his petitions for permanent stalking protective orders (SPOs) against two of his neighbors, Bosket and Carter, under ORS 30.866.¹ Petitioner contends that the trial court erred in determining that it was not objectively reasonable for a person in his situation to have been alarmed and that he failed to establish two qualifying contacts for each respondent. As for Bosket, we agree with the trial court that petitioner failed to establish two qualifying contacts. However, as for Carter, we conclude that there were sufficient contacts to support the issuance of an SPO. Accordingly, we affirm the judgment dismissing the SPO petition against Bosket, and we reverse the judgment dismissing the SPO petition against Carter.

On appeal, petitioner seeks de novo review because, he asserts, the trial court improperly created a “categorical exemption for disputes between neighbors” and relied on that exemption when evaluating the facts in the record. However, because petitioner's argument raises an issue of law and this is not otherwise an “exceptional case” justifying de novo review, we review the trial court's factual findings for “any evidence” and its legal conclusions for errors of law. SeeORAP 5.40(8)(c); S.A.B. v. Roach, 249 Or.App. 579, 580, 277 P.3d 628 (2012).

As in other equitable proceedings, “we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome.” Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013) (stating our standard of review in juvenile dependency cases). We state the facts consistently with that standard.

In the spring of 2010, petitioner moved into a condominium with his domestic partner, Kirk. Their condominium is located next to, and shares a wall with, Bosket's unit. Carter's condominium is located on the other side of Bosket's unit. In the summer of 2011, petitioner became involved with the homeowner's association (HOA) and was appointed to serve as facilities chairman. In that capacity, he oversaw a number of maintenance projects in the complex. Prior to taking that position, his relationship with both neighbors was cordial; however, after he became facilities chairman, the relationships became strained and disagreements about various maintenance projects led to several of the contacts at issue.

I. INCIDENTS WITH RESPONDENT BOCKET

The first incident occurred on July 28, 2011. Bosket erected a large garage sale sign in his front yard and petitioner asked him if he had sought the necessary HOA consent to display the sign. Bosket became “very agitated and very angry, got red in the face and started yelling” at petitioner about the “damned [HOA] board.” Trying to avoid a confrontation, petitioner returned to his residence, but Bosket followed him and continued to yell and angrily shake his clenched fists at petitioner. As petitioner stood at the top of his front stairs about to enter his unit, Bosket yelled, “Come down here, motherfucker, and I'll show you.” Later that afternoon, Bosket apologized to petitioner, and a few days later both petitioner and Bosket participated in a previously arranged HOA work party without incident.

A second incident occurred on August 16, a few days after an HOA-approved tree trimming had occurred at the condominium complex. That night, Bosket knocked on petitioner's door and, as soon as petitioner opened the door, forcibly entered, punched petitioner in the chest, pushed him backwards onto the stairs, and wrapped his hands around his neck. As he choked petitioner, Bosket yelled at him for cutting his trees and addressed him using homophobic slurs. Carter, who was standing outside, told Bosket, “They're going to pay for what they've done, they get it, come down from there.” Eventually, Bosket's girlfriend and Carter convinced Bosket to leave. After he left, petitioner called the police, who then arrested Bosket.

II. INCIDENTS WITH RESPONDENT CARTER

Several incidents involving Carter occurred in between the two incidents involving Bosket. On July 31, Carter accused petitioner and Kirk of getting paint on his truck while they were working on an HOA fence painting project. Carter “came out of his garage at a very rapid rate, very aggressively, stormed up to Kirk and started yelling at him” about the paint. Carter clenched his fists violently, leading petitioner to believe that Carter would hit Kirk. Petitioner tried to diffuse the situation, but Carter verbally attacked the couple, calling them “fucking faggots and homos” and stating that he “didn't like having queers living next door to him.” When petitioner started to walk away, Carter accused him of “walking away like a little girl fag.” The parties' relationship continued to be confrontational, and several days later Carter again swore at petitioner using homophobic slurs.

On August 10, Carter, who was standing outside his unit, told petitioner that “he was tired of [ ]fucking queers fucking up his homeowners association.” Later that evening, Carter was biking on the sidewalk; when he saw petitioner walking there, he “stood up on his pedals and started accelerating toward [petitioner].” In order to avoid being hit, petitioner had to “jump off the sidewalk.”

On August 12, HOA-contracted tree trimmers arrived outside of Carter's unit. Because Carter believed that he was not given proper notice of the project, he yelled at the workers and petitioner. Later that morning, Carter approached petitioner, who was standing in his carport, and started complaining about the HOA and the tree trimming. He was “very angry and very agitated.” In a “menacing [ ] tone[,]” he told petitioner, “When I'm done, you [and Kirk] will be off the [HOA] board * * * by Sunday or you'll be dead.” After this encounter, petitioner told the chairman of the HOA board of Carter's threat and, based on the chairman's advice, filed a report with the police, who later interviewed Carter.

On August 14, as petitioner walked past Carter's unit on his way to the HOA board meeting, Carter said, “I hope you're ready for this meeting because when I'm done with you, you're going to be off the fucking board. I want you—you queers are going to be out of my neighborhood.”

Two days after Bosket's attack on petitioner, on August 18, petitioner and Kirk went to a victim's assistance center to obtain an SPO against Bosket and Carter. As they were returning to the complex in their car, they encountered Carter standing outside his condominium. When Carter saw them, he shook his fist at them and started yelling. As petitioner and Kirk got out of their car in their carport, Carter walked over to the edge of their carport and yelled at them, with clenched fists, “I can't believe that you—that you called the police, you fucking pansy queer. You better watch your back.”

At trial, petitioner expressed alarm that Carter had “this habit of just suddenly appearing” when petitioner was out in front of his house “or doing something, like going to check the mail.” Petitioner explained that “it's happened so often that it's * * * like he's laying [ sic ] in wait * * * frankly, it scares the crap out of me sometimes because [Carter] just appears out of nowhere.”

After a consolidated hearing, the trial court credited petitioner's and Kirk's testimony, and determined that petitioner had met the subjective requirement of ORS 30.866(1). However, the court denied the petitions because it concluded that petitioner had failed to show, for either petition, that there were two “contacts” that would satisfy the element of objectively reasonable alarm in ORS 30.866(1). Regarding Bosket, the court determined that there was only one qualifying contact—the strangling incident. The court explained that the initial contact—the July 28 confrontation about the garage sale sign-was “purely communicative” and was not “a threat of imminent serious personal violence” to petitioner as required by State v. Rangel, 328 Or. 294, 303, 977 P.2d 379 (1999) As for Carter, the court determined that most of the contacts were expressive and that, although what Carter expressed was offensive, there was no objectively reasonable basis for petitioner to believe that he would actually be harmed. As a result, the trial court dismissed the petitions.

On appeal, petitioner assigns error to the trial court's denial of his petitions. He challenges several aspects of the court's ruling, arguing that the trial court erred by creating a “categorical exemption for disputes between neighbors” which led to its conclusion that neither Carter's repeated contacts and threats, nor Bosket's direct threat and physical attack, caused objectively reasonable alarm. Petitioner also contends that the trial court erred in deciding that there was insufficient evidence of two qualifying contacts for each respondent and that the court disregarded the homophobic nature of the unwanted contacts when deciding that petitioner's alarm was not objectively reasonable.

ORS 30.866(1) provides:

“A person may bring a civil action in a circuit court for a court's stalking protective order or for damages, or both, against a person if:

“(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person's...