Hiber v. Creditors Collection Service of Lincoln County, Inc.

• Decision Date: 10 June 1998
• Docket Number: C-12820
• Citation: 961 P.2d 898,154 Or.App. 408
• Parties: Charles D. HIBER, Appellant, v. CREDITORS COLLECTION SERVICE OF LINCOLN COUNTY, INC., an Oregon corporation, and Robert W. Connell, Respondents. 95; CA A96908.
• Court: Oregon Court of Appeals

Page 898

961 P.2d 898

154 Or.App. 408

Charles D. HIBER, Appellant, v. CREDITORS COLLECTION SERVICE OF LINCOLN COUNTY, INC., an Oregon corporation, and Robert W. Connell, Respondents.

95C-12820; CA A96908.

Court of Appeals of Oregon.

Argued and Submitted Dec. 2, 1997.

Decided June 10, 1998.

Clifford G. Collard, argued the cause for appellant. With him on the briefs was Macpherson, Gintner, Gordon & Diaz, Newport.

Jane Marie Bischman, argued the cause for respondents. With her on the brief were J. Philip Parks and Parks, Bauer, Sime & Winkler, Salem.

Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.

LINDER, Judge.

The issue in this appeal is whether and under what circumstances an attorney may be sued for false imprisonment as a result of his actions in requesting issuance of an arrest warrant that did not comply with all applicable statutory procedures. This case arose after a private attorney, on behalf of his client, filed a motion with the district court alleging that plaintiff had violated a court order and requesting that plaintiff be arrested on contempt charges. In requesting the arrest warrant, the attorney did not allege and the district court did not find that plaintiff could not be personally served with a notice to appear. See ORS 33.055(5). After plaintiff was arrested on the warrant, plaintiff sued the attorney and, on a vicarious liability theory, also sued the attorney's client for false imprisonment. ¹ We hold that an attorney is liable for an arrest made upon a warrant only if, in seeking issuance of the warrant, he or she acts in bad faith, intentionally misrepresents facts to the judge, or otherwise acts with malice. Likewise, the attorney's client can be vicariously liable only in those circumstances. Here, there is no dispute that the attorney acted in good faith. We therefore affirm the trial court's grant of summary judgment for defendants. ²

This case arose out of a civil dispute over a debt. Creditors Collection Service (Creditors) obtained a money judgment against plaintiff, after which plaintiff was ordered to appear for a debtor's examination and to produce certain financial records. Plaintiff appeared, but he allegedly failed to produce the required financial records and refused to answer questions to Creditors' satisfaction. Creditors retained an attorney, Connell, who submitted two ex parte motions to the district court judge who had ordered the debtor's examination. One motion asked the court to issue a warrant for plaintiff's arrest based on his noncompliance with the earlier order; it was supported by an affidavit describing plaintiff's noncompliance. The second motion, apparently submitted in the alternative, asked to have plaintiff ordered to appear and show cause why he should not be held in contempt; it was supported by a substantially identical affidavit. ³

Connell and the district court judge at some point discussed the requirements of the contempt statutes. ⁴ Connell believed that the trial court had inherent authority to bring a noncompliant judgment debtor before it, apart from its authority to hold the debtor in contempt, and that the procedural constraints of the contempt statutes did not necessarily apply. As a matter of local practice, the trial judges apparently operated under the same belief. That is, they considered a trial court's contempt authority to be separate from the court's inherent power to bring a judgment debtor before it. Local judicial practice, accordingly, sometimes was first to bring the noncomplying judgment debtor into court, and then to file the papers necessary to seek contempt sanctions. Consequently, in the affidavit in support of the motion for issuance of the arrest warrant, Connell did not include a representation as to whether plaintiff could be personally served. See ORS 33.055(5)(a). ⁵

The trial court took Connell's motions under advisement. Approximately 10 days later, the court entered an order directing that a bench warrant issue and that, upon arrest, plaintiff be brought before the court to show cause why he should not be held in contempt. The order signed by the court was the same one that Connell had drafted and submitted with his motion. In signing it, however, the court hand-modified it by striking out certain text and by interlineating new text in places. After the order was signed and filed, a bench warrant issued. Plaintiff was not immediately arrested, however, because by then he was living in Arizona. Some two years later, he returned to Oregon and was arrested on the warrant. Upon his arrest, he was transported to jail, where he posted bail and was released from custody after approximately nine hours.

Plaintiff filed this action, seeking to hold Connell directly and Creditors vicariously liable for false imprisonment. ⁶ In moving for summary judgment, plaintiff argued that liability attaches as a matter of law on these facts, because Connell intentionally instigated an arrest pursuant to a warrant that was "void" due to noncompliance with the personal service requirements of ORS 33.055(5). Defendants cross-moved for summary judgment, arguing that the warrant was not void, but that, even if it was, Connell should not be liable as long as he acted in good faith.

In granting summary judgment for defendants, the trial court agreed that the warrant was procedurally defective, but it determined that the defect was not jurisdictional in nature. The trial court further concluded:

"The court [that issued the arrest warrant], of course, is absolutely immune under any stretch of the facts. It would be inequitable to hold accountable an attorney, who was at most indirectly responsible for plaintiff's alleged injury, while holding harmless the entity who was directly responsible for the judicial decision which plaintiff claims led to his injury. The district court's involvement here was not merely ministerial, and it was the judge himself who chose to exercise his discretion in favor of the bench warrant process. Neither the attorney nor his client should be held accountable for the court's decision in that regard under these circumstances."

On appeal, the parties renew the arguments they made below.

The basic principles that apply to an action for false imprisonment (also called false arrest) are familiar and well settled. The gravamen of the claim is "the unlawful imposition of restraint on another's freedom of movement." Buckel v. Nunn, 133 Or.App. 399, 405, 891 P.2d 16 (1995). The tort has four elements: (1) defendant must confine plaintiff; (2) defendant must intend the act that causes the confinement; (3) plaintiff must be aware of the confinement; and (4) the confinement must be unlawful. Lukas v. J.C. Penney Co., 233 Or. 345, 353, 378 P.2d 717 (1963); Walker v. City of Portland, 71 Or.App. 693, 697, 693 P.2d 1349 (1985).

As a general proposition, the fact that an arrest is made pursuant to a warrant defeats a claim of unlawful imprisonment, because the warrant provides a form of privilege or justification to interfere with a plaintiff's liberty. Restatement (Second) of Torts § 122 (1965); see generally Nemitz v. Conrad, 22 Or. 164, 165, 29 P. 548 (1892); Napier v. Sheridan, 24 Or.App. 761, 765, 547 P.2d 1399 (1976). The burden therefore falls on the plaintiff to demonstrate the warrant's invalidity and to overcome any privileges or immunities that attach by virtue of it. See Brown v. Meier & Frank Co., 160 Or. 608, 614-15, 86 P.2d 79 (1939) (arrest pursuant to judicial process is presumptively lawful).

As a threshold matter, defendants dispute whether the arrest warrant in this case was invalid at all, arguing that compliance with ORS 33.055(5) was not necessary. We disagree. Under ORS 23.720(2)(c), a judgment debtor who fails to comply with a court ordered debtor examination is subject to the contempt procedures of ORS chapter 33. In turn, ORS 33.055(5)(a) provides that the court may serve a person with an order to appear on a contempt charge, or the court may issue an arrest warrant "if, based upon motion and supporting affidavit, the court finds that the defendant cannot be personally served." Id. ⁷ A finding of inability personally to serve the person to be arrested thus is in the nature of a procedural prerequisite, one that conditions the court's authority to act. Because that requirement is well within the legislature's ability to impose, the district court was obligated to follow the statute and make a finding of inability personally to serve plaintiff as a predicate for issuing the arrest warrant. ⁸ The failure to do so rendered the warrant procedurally defective and "invalid" in that sense. Restatement (Second) of Torts § 122 (a warrant is valid when all proceedings necessary for its proper issuance have duly taken place).

The question thus is whether, under these facts, Connell and his client can be liable for seeking issuance of what proves to have been an invalid warrant. Consistent with principles of joint and several liability for torts generally, liability for false imprisonment extends not only to the person who directly confines a plaintiff, but equally to one who instigates the confinement by directing, requesting, inviting or encouraging it. Pearson v. Galvin, 253 Or. 331, 335-37, 454 P.2d 638 (1969) (adopting Restatement (Second) of Torts § 45a, comment c (1965)). Here, there is no dispute that Connell "instigated" plaintiff's confinement, in the sense that he filed a motion calling the court's attention to the alleged contempt and asking the court to issue a warrant for plaintiff's arrest. The more narrow issue--and the question of first impression in Oregon--is whether some form of privilege or immunity properly should attach when an attorney, in pursuit of a client's interests, in good faith successfully procures issuance of an arrest warrant that is procedurally defective.

The general rule, which seems to be followed without exception, is that for most...