Merrill v. A.R.G.

• Decision Date: 28 June 2017
• Docket Number: A158790
• Citation: 398 P.3d 954,286 Or.App. 487
• Parties: Steven D. MERRILL, Plaintiff-Respondent, v. A.R.G., Defendant-Appellant.
• Court: Oregon Court of Appeals

286 Or.App. 487

398 P.3d 954

Steven D. MERRILL, Plaintiff-Respondent,

v.A.R.G., Defendant-Appellant.

A158790

Court of Appeals of Oregon.

Argued and submitted May 18, 2016.

June 28, 2017

Margaret H. Leek Leiberan, Portland, argued the cause for appellant. With her on the briefs was Jensen & Leiberan.

Mark L. Busch, Portland, argued the cause and filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

TOOKEY, J.

Defendant appeals from a judgment entered against him on claims for malicious prosecution and wrongful initiation of civil proceedings. On appeal, he assigns error to the trial court's denial of his motions for directed verdict on those claims. We conclude that the trial court erred in denying defendant's motion for directed verdict on the malicious-prosecution claim, but did not err in denying defendant's motion for directed verdict on the wrongful-initiation claim. Accordingly, we reverse the malicious-prosecution claim, remand for entry of a judgment in defendant's favor on that claim, and otherwise affirm.

"Because this case comes to us after a trial at which the jury found in plaintiff's favor, we view all the evidence, and the inferences that reasonably may be drawn from it, in the light most favorable to plaintiff." Greist v. Phillips , 322 Or. 281, 285, 906 P.2d 789 (1995).

Plaintiff and defendant are neighbors. They live in a rural, hilly area covered with heavy vegetation. Plaintiff and another neighbor, Choppala, have a 20-foot-wide access easement across the eastern border of defendant's property that allows plaintiff and Choppala to gain access to their property from a public road. In 2005, defendant sued plaintiff and Choppala to prevent them from using the established, paved access point from the public road to the easement because that access was outside of the recorded easement area. Defendant obtained a judgment that required plaintiff and Choppala to build a new road that was within the easement within 120 days of the judgment becoming final, and thereafter enjoined them from using defendant's property except for the easement. Plaintiff appealed the part of that judgment relating to attorney fees, which was affirmed without opinion. See Gascon v. Merrill , 228 Or. App. 368, 208 P.3d 1057, rev. den. , 346 Or. 589, 214 P.3d 821 (2009). The final judgment issued in January 2010. After the court-ordered 120 days to build the new road elapsed, in May 2010, defendant locked a gate across the access point on his property, preventing plaintiff and Choppala from using the access point. At that time, plaintiff and Choppala had not yet built a new access point.

At the other end of the easement, where it neared the northern border of defendant's property, the established roadway that plaintiff used for access was partly inside the easement and partly outside of it. Not long after locking the gate across the access point, defendant also built a 15-foot chain-link fence across the established roadway at the other end of the easement. Approximately five feet of the fence was on the easement and the remaining 10 feet was on defendant's property west of the easement. Plaintiff, through his attorneys, requested that defendant remove the fence because it blocked the only access, including emergency access, to plaintiff's property. In response, defendant refused to remove the fence and provided a copy of a survey to plaintiff's attorney that showed the established roadway was largely not within the easement.

In November 2010, about four months after defendant erected the fence, plaintiff took the fence down by sawing off the three fence posts at their base and laying the fence down in the easement. Plaintiff testified that he believed that the entire fence was in the easement when he took it down because it covered the asphalt and because he had not seen a survey that showed otherwise. Plaintiff also testified that he believed defendant had moved a survey pin and put down paint lines to make it only look like the fence was not on the easement, even though at least part of it was. Defendant testified that he had measured from his property line to make sure that the entire fence was outside of the easement when he put it up.

Defendant called the police. Defendant told the police officer that the fence was entirely outside the easement and insisted that the officer press charges. In his conversation with the officer, defendant showed him surveillance footage from one of his cameras showing Choppala stepping a few feet onto his property, his survey of the easement, and the judgment from the easement case. The police report stated that, if the survey marker defendant showed the officer was accurate, then the fence was not in the easement but that "[i]t was hard to tell, however, where the eastern most border was, and if it was inside the easement." After speaking to plaintiff, who admitted to cutting down the fence, the officer issued plaintiff a citation for second-degree criminal mischief. Three days later, plaintiff also received a citation for second-degree criminal trespass for the same conduct. The charges against plaintiff were later dismissed on request of the district attorney.

In December 2010, after being contacted by a victim's assistance program, defendant petitioned for a civil stalking protective order (SPO) against plaintiff. In the SPO petition, defendant relied on the incident with the fence, as well as two other incidents, as the basis for obtaining an SPO against plaintiff. The first other incident occurred in November 2009, when plaintiff was standing with an engineer in the easement discussing a new access point. While they were there, defendant drove up the easement road towards them, causing them to move out of the way. As plaintiff moved out of the way, he slapped defendant's truck and told defendant to stop. Defendant then got out of his truck, and he and plaintiff yelled at each other. In the SPO petition, defendant claimed that he was just trying to back up his truck when plaintiff ran up and slapped his truck twice, threatened defendant, and tried to start a physical altercation with defendant. Defendant went inside and called the police using the non-emergency number.

The second other incident that served as the basis for defendant's SPO petition against plaintiff occurred in May 2010, the day that defendant locked the gate across the access from the public road. After defendant locked the gate, plaintiff and Choppala went to defendant's house to talk to him because defendant would not open the gate for Choppala's wife so that she could get her car out. Plaintiff walked down the easement with a two-by-two piece of lumber that he used as a walking stick. When defendant saw plaintiff, defendant started yelling to someone he was talking to on the phone that plaintiff had a "club." The police were called, and, after the police arrived, plaintiff and Choppala left because defendant would not open the gate to let out Choppala's car. Later, with police assistance, the Choppalas were able to move their cars off their property. In his SPO petition, defendant claimed that plaintiff had had a club, had threatened "to bash my head in," and advanced toward defendant.

Based on defendant's SPO petition and his ex parte testimony, the court issued a temporary SPO, at which point plaintiff was notified of the proceedings. Plaintiff requested a hearing.

At the permanent SPO hearing, in addition to presenting evidence of his version of events, and contending that defendant was not truthful in his SPO petition, plaintiff introduced evidence that defendant had a concealed-carry permit and kept a handgun on his person 90 percent of the time, had other weapons including an AR-15 rifle, was military trained in hand-to-hand combat, and had video surveillance on his property, including a camera on the easement road. At the end of the hearing, after the SPO court issued its oral ruling denying defendant's requested SPO, the court requested that plaintiff prepare the final judgment. Plaintiff's attorney prepared the proposed judgment, submitted it to the court, and served it on defendant's attorney, who then had an opportunity to object to it. The SPO court entered the permanent SPO judgment, after making handwritten deletions to the proposed judgment submitted by plaintiff.

In the SPO judgment, the SPO court found that (1) the fence-cutting incident was not a threat to defendant's safety and was insufficient to cause defendant alarm and (2) the truck-slapping incident was not a threat to defendant's safety and it was not objectively reasonable for defendant to be alarmed or coerced by that conduct. The court also specifically found that defendant's testimony was not credible. The court did not address the "club"-wielding incident. Based on its findings on the other two incidents, the court concluded that defendant failed to prove two qualifying contacts necessary for an SPO and that "[t]here was no objective reasonable basis for [defendant] to have asserted the claim for a stalking protective order."¹ The SPO court vacated the temporary SPO and dismissed defendant's SPO petition with prejudice.

Plaintiff then filed this action against defendant, asserting a claim for malicious prosecution for the criminal charges brought against plaintiff, and a claim for wrongful initiation of civil proceedings for the SPO proceedings brought against plaintiff.

At the close of plaintiff's case, defendant made multiple motions for directed verdict. With respect to plaintiff's malicious-prosecution claim, and as relevant on appeal, defendant argued that he had probable cause to institute the criminal complaint against plaintiff because he reasonably believed that the fence was on his property and not in the easement. The parties agreed that whether defendant had probable cause was an issue for the trial court to decide. With respect to that question, the trial court concluded that defendant h...