Lowell v. Matthew Wright & Artistic Piano, an Or. Corp.

• Decision Date: 02 September 2020
• Docket Number: A162785
• Citation: 306 Or.App. 325,473 P.3d 1094
• Parties: Tom LOWELL, dba Piano Studios and Showcase, Plaintiff-Appellant, v. Matthew WRIGHT and Artistic Piano, an Oregon corporation, Defendants-Respondents.
• Court: Oregon Court of Appeals

306 Or.App. 325

473 P.3d 1094

Tom LOWELL, dba Piano Studios and Showcase, Plaintiff-Appellant,

v.Matthew WRIGHT and Artistic Piano, an Oregon corporation, Defendants-Respondents.

A162785

Court of Appeals of Oregon.

Argued and submitted April 5, 2018.

September 2, 2020

Linda K. Williams, Portland, argued the cause and filed the briefs for appellant.

Tracy M. McGovern, Medford, argued the cause for respondents. Also on the brief were Alicia M. Wilson and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

AOYAGI, J.

Plaintiff Lowell, the owner of a piano store, brought this defamation action against defendant Wright, an individual, and defendant Artistic Piano, a competitor piano store for whom Wright works, after Wright posted a negative Google review about plaintiff's business. The trial court granted summary judgment in favor of defendants. Plaintiff appeals. For the following reasons, we agree with plaintiff that the trial court erred in granting summary judgment to defendants and, accordingly, reverse and remand.

I. FACTS

We state the facts in the light most favorable to plaintiff, as the nonmoving party. ORCP 47 C.

Plaintiff owns and operates Piano Studios and Showcase, a business that, among other things, operates a piano store in Medford. On or about September 3, 2012, Wright and his wife visited plaintiff's store. Wright and his wife had previously visited plaintiff's store in early 2011 and had considered purchasing a piano, but his credit application was denied. After that visit, Wright began working at Artistic Piano, another piano store in Medford. According to Wright, while working at Artistic Piano, he kept hearing from customers about negative experiences at plaintiff's store, so he went to check it out for himself. Wright went to plaintiff's store on a day that he was off work, and he claims not to have told his boss Werner, the owner of Artistic Piano, that he was going. After visiting the store, Wright posted a Google review. According to Wright, he usually posts reviews of any business that he does business with, and he also hoped that describing his experience might spur plaintiff to make some changes to improve his store.

None of the parties retained a copy of the actual review, and plaintiff's efforts to obtain a copy from Google during discovery were unsuccessful. However, viewing the evidence in the light most favorable to plaintiff, the review contained the following statements:

• Wright walked around plaintiff's store for 45 minutes before anyone spoke to him.

• The store "smelled like grandma's attic."

• When Wright did speak to a salesman, the salesman told him that a Yamaha C-7 piano on the showroom floor was about five years old. However, Wright subsequently researched the piano (apparently using its serial number) and discovered that it was 20 years old.

• The salesman further told Wright that plaintiff "can sell new Steinway pianos." However, plaintiff "cannot" sell new Steinway pianos, and "[t]here were no new Steinways in the showroom," which is "like a Chevy dealer not having any Chevrolets on the lot."

• Wright had been warned about plaintiff's store and now knew that it was true that "this guy can't be trusted."

In December 2012, plaintiff saw Wright's review and was upset by it. He tracked down Wright's phone number and called him, while one of plaintiff's employees, Norling, listened and took notes. Wright eventually hung up on plaintiff. After plaintiff's call, Wright talked to his boss, Werner, and showed him the review. According to Wright, he had told Werner about his visit to plaintiff's store after the visit—specifically telling him about the 45-minute wait and showing him a photo of the Yamaha C-7—but he had not told Werner that he was going to write a review. When Werner saw the review after plaintiff's call, he suggested that Wright take it down, which Wright did.

In 2013, plaintiff filed a defamation claim against Wright and Artistic Piano. Plaintiff alleged that Wright had been acting as an agent of Artistic Piano, a direct competitor of plaintiff's, when he posted the Google review. Plaintiff alleged that the review "purported to describe the personal experience of an actual customer" but that "Wright was not a bona fide potential customer." Plaintiff identified three specific statements from the review as false and defamatory assertions of fact:

"a. That a Yamaha C-7 piano serial number F4910127 on the showroom floor was misrepresented to Wright as being about 5 years old, when in fact said piano was at least 15 years older and less valuable, and this misrepresentation of the age of the instrument was purposely made in an effort to cheat Wright;

"b. That [plaintiff] misrepresents that he sells new Steinway Pianos, when he actually doesn't; and

"c. That the above misrepresentations are proof that ‘this guy can't be trusted.’ "

Plaintiff further alleged that "many in the community would recognize the reference to ‘this guy’ in the Google review to mean [plaintiff], the owner of the business."

In 2016, defendants moved for summary judgment, asserting that plaintiff could not prevail on his defamation claim because plaintiff could not prove that the statements were false and defamatory, because the statements were nonactionable under the First Amendment to the United States Constitution, and because plaintiff could not prove that defendants acted with actual malice. Plaintiff opposed the motion.

The trial court granted summary judgment to defendants. In its letter opinion, the court first addressed the Steinway statement, concluding that the absence of the actual review from the record was dispositive. The court focused on an inconsistency in the evidence as to whether, in his review, Wright claimed that plaintiff's salesman had told him that plaintiff was a "Steinway dealer" (which it is undisputed that plaintiff was not) or only that plaintiff "could sell new Steinway pianos." Having "reviewed all of the depositions excerpts, affidavits, and other documents filed in the case," the court was "convinced that a trial w[ould] provide no more clarity" on that issue, emphasized the "fine-line distinction between dealing and selling," and stated that it would "not determine that there was a factual dispute based upon the theory that a witness may change testimony very thoroughly developed at deposition." Further, the court considered there to be "insufficient clarity and context" to determine with certainty whether the statement was protected by the First Amendment, given the contextual analysis required by Neumann v. Liles , 358 Or. 706, 369 P.3d 1117 (2016).

The trial court next addressed the Yamaha statement, which it described as "less ambiguous, because witness memories are more precise." The court discussed Neumann , 358 Or. at 708, 369 P.3d 1117, in which the Oregon Supreme Court held that a wedding guest's negative statements about a wedding venue in an online review—including describing the venue owner as "two faced" and "crooked" and speculating that she would overcharge customers and improperly retain their deposits—were protected by the First Amendment. The trial court viewed Wright's statements as less damning than the statements in Neumann , but it recognized that a factfinder could find that no salesman had told Wright that the C-7 was only five years old. Nonetheless, the court concluded that defendants were entitled to summary judgment, because "inexact memories and very general summaries of the online review" did not allow for "the proper in-depth inquiries."

Finally, the trial court concluded that Wright's statement that "this guy can't be trusted" was "so clearly one of subjective opinion that it cannot be the basis of an action in defamation." Having decided that plaintiff could not prevail on any of the allegedly defamatory statements, the court granted summary judgment to defendants and, subsequently, entered a judgment dismissing plaintiff's defamation claim.

Plaintiff appeals. Although he asserts six assignments of error, plaintiff challenges only one ruling—the trial court's grant of summary judgment to defendants on the defamation claim—assigning error to different aspects of the court's reasoning. Because plaintiff's arguments are better viewed as raising a single assignment of error, we treat them as such. See ORAP 5.45(3) (each assignment of error should challenge a specific "ruling"); Cedartech, Inc. v. Strader , 293 Or. App. 252, 256, 428 P.3d 961 (2018) ("The assignments are criticisms of the trial court's reasons for its result but are not truly rulings of the trial court of the sort that are required to be identified in an assignment of error." (Emphases in original.)).

II. ANALYSIS

We review the trial court's summary judgment ruling to determine whether any genuine issue of material fact exists and, if not, whether defendants were entitled to judgment as a matter of law. ORCP 47 C. No genuine issue of material fact exists if, based on the record before the trial court viewed in the light most favorable to plaintiff, "no objectively reasonable juror could return a verdict for the [plaintiff] on the matter that is the subject of the motion for summary judgment." Id . Plaintiff has the burden of producing evidence on any issue raised in the motion as to which he would have the burden of persuasion at trial. Id .

A. Basic First Amendment Principles Relevant to Defamation

Under Oregon law, a defamation claim has three elements: (1) the making of a defamatory statement; (2) publication of the defamatory material to a third party; and (3) resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm. National Union Fire Ins. Co. v. Starplex Corp. , 220 Or. App. 560, 584, 188 P.3d 332, rev. den. , 345 Or. 317, 195 P.3d 65 (2008). A defamatory statement is one that would subject the plaintiff to hatred, contempt, or...