Richer v. Poisson

• Decision Date: 11 October 1995
• Docket Number: CV-0436-TM
• Citation: 903 P.2d 932,137 Or.App. 157
• Parties: Lee RICHER and Yvonne Richer, husband and wife, Appellants, v. Lawrence POISSON, Respondent. 92-; CA A83923.
• Court: Oregon Court of Appeals

Page 932

903 P.2d 932

137 Or.App. 157

Lee RICHER and Yvonne Richer, husband and wife, Appellants, v. Lawrence POISSON, Respondent.

92-CV-0436-TM; CA A83923.

Court of Appeals of Oregon.

Argued and Submitted Feb. 1, 1995.

Decided Oct. 11, 1995.

Michael Henderson, Bend, argued the cause and filed the brief for appellants.

Robert L. Nash, Portland, argued the cause for respondent. With him on the brief was Dunn, Carney, Allen, Higgins & Tongue.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiffs appeal from a judgment dismissing their complaint for failure to state a claim for intentional infliction of emotional distress, ORCP 21 A(8), and plaintiff Lee Richer (Richer) appeals from a summary judgment on his claim for malicious prosecution. ORCP 47 C. We affirm in part and reverse in part.

Plaintiffs leased retail space from defendant, who operated a business adjacent to plaintiffs' store. The parties had an acrimonious relationship, and on January 6, 1991, plaintiffs vacated that space. The next day, defendant noticed that some of his business signs were missing. Defendant met with Officer Fields about the signs and told him that Richer might have taken them. Fields decided to investigate and contacted Richer and numerous others. Richer admitted that he told two people who helped him move to take the signs down and put them in a dumpster behind the building. Fields continued his investigation and later that day reinterviewed Richer about the signs. Again, Richer told Fields that he had the signs taken down. Specifically, Richer said he had instructed his two sons-in-law to take down the signs. Fields then spoke with the sons-in-law who stated that they had, at Richer's instruction, removed the signs and put them in a dumpster behind the building. As a result of Fields' investigation, Richer was prosecuted for theft and criminal mischief. Richer prevailed at trial.

Plaintiffs then brought this action, in which they asserted several claims for relief. After several rounds of motion practice and repleading, only plaintiffs' claim for intentional infliction of emotional distress and Richer's claim for malicious prosecution remained. Later, the trial court granted defendant's motion to dismiss plaintiffs' claim for intentional infliction of emotional distress for failure to state a claim. ORCP 21 A(8). The trial court also granted defendant's motion for summary judgment on plaintiff's malicious prosecution claim. ORCP 47 C.

Plaintiffs appeal the trial court's judgment dismissing both claims. We discuss first their assignment that the trial court erred in dismissing their claim for intentional infliction of emotional distress. In reviewing the granting of a motion to dismiss for failure to state a claim, we assume the truth of all allegations, as well as any inferences that may be drawn from the allegations. Glubka v. Long, 115 Or.App. 236, 238, 837 P.2d 553 (1992). We determine whether the complaint states a claim as a matter of law. Hansen v. Anderson, 113 Or.App. 216, 218, 831 P.2d 717 (1992).

In pleading a claim for intentional infliction of emotional distress, the plaintiff must allege facts showing that the defendant intended to cause the plaintiff severe emotional distress or knew that such distress was certain or substantially certain to result from the defendant's conduct, that the defendant did cause the plaintiff severe mental or emotional anguish and that the defendant's action was outrageous in the extreme and exceeded a reasonable limit of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995); Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989). Here, plaintiffs pleaded eighteen acts, which they allege constituted intentional infliction of emotional distress. The trial court observed that ten of those acts occurred more than two years before plaintiffs filed this action and precluded them. See ORS 12.110(1). It then concluded that the remaining allegations were insufficient to state a claim.

Plaintiffs argue that the trial court erred in not considering all eighteen acts, because they were part of a "continuing tort." We reject that argument, because a series of discrete acts, even though connected in design or intent, is not a continuing tort. Davis v. Bostick, 282 Or. 667, 674, 580 P.2d 544 (1978); see also Holdner v. Columbia County, 51 Or.App. 605, 627 P.2d 4 (1981). Therefore, we discuss only whether plaintiffs' allegations about conduct by defendant that occurred after December 8, 1990, state a claim.

Plaintiffs allege that, after that date, defendant sprayed graffiti over their store window, harassed their customers and employees by making obscene gestures, set the heat too high, sent their customers to competitors, placed paper over their business signs and made "harassing" telephone calls to plaintiffs. Although some of that conduct is merely annoying or crude, the allegations that defendant, for the purpose of causing plaintiffs' emotional distress, painted graffiti on their windows, harassed them by telephone and harassed their customers by making obscene gestures, describe offensive conduct that may be outrageous in the extreme, depending on the nature of the specific acts. We conclude that plaintiffs have stated a claim for intentional infliction of emotional distress.

We now discuss Richer's assignment that the trial court erred in granting summary judgment against him on his claim for malicious prosecution. We review the evidence in the summary judgment record in the light most favorable to plaintiff to determine whether there are any genuine issues of material fact and whether plaintiff is entitled to judgment as a matter of law. Seeborg v. General Motors Corp., 284 Or. 695, 699, 588 P.2d 1100 (1978).

At the hearing on the motion, defendant objected to certain statements in Richer's opposing affidavit and moved to strike those statements on the basis that they were made without personal knowledge and constituted inadmissable hearsay. Specifically, Richer stated that the defendant caused the signs to disappear himself and therefore, that defendant had lied to police by telling Fields that Richer took the signs. The trial court granted defendant's motion, but struck only Richer's statement that defendant had lied to police. The trial court then granted summary judgment for defendant, reasoning that even if there was a genuine issue of fact as to whether the defendant took the signs himself, defendant could not be held liable for malicious prosecution. It concluded that, after making initial contact with the police, defendant had no meaningful contact with the ongoing criminal investigation or prosecution. Further, the investigation by Field and the decision by District Attorney Brinich to prosecute Richer were made independently, without consideration of any of defendant's statements.

On appeal, plaintiff argues that the trial court erred in striking his statement that defendant lied. Plaintiff cites Humbert v. Knutson et al., 224 Or. 133, 354 P.2d 826 (1960), for the proposition that a defendant is not insulated from liability when the defendant misrepresents the facts to the police, or withholds information, because it precludes the independent exercise of the investigating officer's and prosecutor's discretion. Plaintiff contends that the stricken portion of his opposing affidavit raises a genuine issue of fact about whether defendant lied. He further argues that the issue of the extent to which that false information influenced further investigation by the police and the ultimate decision to prosecute is a genuine issue of material fact.

Assuming, without deciding, that plaintiff's statement that defendant lied to police is competent evidence and therefore should not have been stricken, defendant was entitled to summary judgment because there is no evidence in the summary judgment record that the investigating officer or the prosecutor acted on the information defendant gave police.

As we said in Waldner v. Dow, 128 Or.App. 197, 876 P.2d 785 (1994), the truth or falsity of a defendant's statements is relevant only if the prosecution was influenced by that information. Id. at 200, 876 P.2d 785. We noted that, under Humbert, an action for malicious prosecution based on false statements by a private person to police is actionable only where the information upon which the official acted was known to be false:

"Under that standard, the fact that defendant made statements to the prosecutor is not, by itself, sufficient to support an action for malicious prosecution, even if the statements were false. Those statements must be what the prosecutor acted on to begin the prosecution." 128 Or.App. at 201, 876 P.2d 785.

In this case, even if defendant lied to police, there is no evidence in the summary judgment record controverting Fields' affidavit in which he stated that defendant did not in any way influence the actions he took in conducting his investigation or the conclusions he reached. Nor is there any evidence in the record that controverts Brinich's affidavit in which he stated that the decision to prosecute Richer was solely his own, based on his review of Fields' police report. Accordingly, the trial court did not err in granting defendant's motion for summary judgment on the malicious prosecution claim.

Judgment on claim for intentional infliction of emotional distress reversed and remanded; otherwise affirmed.

ARMSTRONG, Judge, concurring in part, dissenting in part.

I concur in the majority's decision to affirm the summary judgment for defendant on plaintiff Lee Richer's claim for malicious prosecution, but write separately on that claim to emphasize what I believe to be the correct analysis of it. I dissent from the decision to reverse the dismissal of plaintiffs' claim for intentional infliction of emotional distress for failure to state a claim.

The elements of the tort of...