Roop v. PARKER NORTHWEST PAVING, CO.

• Decision Date: 21 July 2004
• Citation: 194 Or.App. 219,94 P.3d 885
• Parties: James R. ROOP, Appellant, and Stanley Stevens, Personal Representative of the Estate of Hazel Stevens, deceased, Plaintiff, v. PARKER NORTHWEST PAVING CO., an Oregon corporation, dba River Island Sand & Gravel Co.; Robert D. Traverso; Susan K. Hammond; and Anderson and Yamada, P.C., an Oregon professional corporation, Respondents, and Marilyn Moylan Wall, Defendant. James R. Roop, Plaintiff, and Stanley Stevens, Personal Representative of the Estate of Hazel Stevens, deceased, Appellant-Cross-Respondent, v. Parker Northwest Paving Co., an Oregon corporation, dba River Island Sand & Gravel Co.; and Robert D. Traverso, Respondents-Cross-Appellants, and Susan K. Hammond and Anderson and Yamada, P.C., an Oregon professional corporation, Respondents, and Marilyn Moylan Wall, Defendant. Dan Aspenwall, John Pointer, and Dale Sherbourne, Appellants, v. Parker Northwest Paving Co., an Oregon corporation, dba River Island Sand & Gravel Co.; Anderson & Yamada, P.C., an Oregon professional corporation; and Susan Hammond, Respondents.
• Court: Oregon Court of Appeals

94 P.3d 885

194 Or.App. 219

James R. ROOP, Appellant, and Stanley Stevens, Personal Representative of the Estate of Hazel Stevens, deceased, Plaintiff, v. PARKER NORTHWEST PAVING CO., an Oregon corporation, dba River Island Sand & Gravel Co.; Robert D. Traverso; Susan K. Hammond; and Anderson and Yamada, P.C., an Oregon professional corporation, Respondents, and Marilyn Moylan Wall, Defendant.

James R. Roop, Plaintiff, and Stanley Stevens, Personal Representative of the Estate of Hazel Stevens, deceased, Appellant-Cross-Respondent, v. Parker Northwest Paving Co., an Oregon corporation, dba River Island Sand & Gravel Co.; and Robert D. Traverso, Respondents-Cross-Appellants, and Susan K. Hammond and Anderson and Yamada, P.C., an Oregon professional corporation, Respondents, and Marilyn Moylan Wall, Defendant.

Dan Aspenwall, John Pointer, and Dale Sherbourne, Appellants, v. Parker Northwest Paving Co., an Oregon corporation, dba River Island Sand & Gravel Co.; Anderson & Yamada, P.C., an Oregon professional corporation; and Susan Hammond, Respondents.

9709-06913, 9708-06502; A104616 (Control), A104635, A104871.

Court of Appeals of Oregon.

Argued and Submitted November 3, 2003.

Decided July 21, 2004.

Linda Williams, Portland, and Mark McDougal, West Linn, argued the cause for appellants James R. Roop, Dan Aspenwall, John Pointer, and Dale Sherbourne and appellant-cross-respondent Stanley R. Stevens. With them on the briefs were Gregory Kafoury, Kafoury & McDougal, and Patricia Ferrell-French.

Michael T. Stone argued the cause for respondents-cross-appellants Parker Northwest Paving Co. and Robert D. Traverso. With him on the briefs were Barbara L. Johnston, William H. Stockton, and Brisbee & Stockton.

Thomas W. Brown, Portland, argued the cause for respondents Susan K. Hammond and Anderson and Yamada, P.C. With him on the brief were Wendy M. Margolis and Cosgrave, Vergeer & Kester LLP.

Before LANDAU, Presiding Judge, and HASELTON and BREWER, Judges.

LANDAU, P.J.

This is an action for wrongful initiation of civil proceedings. Plaintiffs Aspenwall, Pointer, and Sherbourne were the hosts of a Washington County cable access television program, "The Water Forum." Plaintiffs Roop and Hazel Stevens were guests on a broadcast of the program.¹ During that broadcast, plaintiffs made statements about a proposed gravel operation on the Clackamas River to be conducted by Parker Northwest Paving Co., doing business as River Island Sand & Gravel Co., and its president, Robert D. Traverso (collectively, Parker NW), that Parker NW regarded as defamatory. Parker NW retained defendants Susan K. Hammond and Anderson and Yamada, P.C. (Hammond), to bring a defamation action against plaintiffs. Ultimately, however, Parker NW voluntarily dismissed the action. Plaintiffs then brought this wrongful initiation action against Parker NW and Hammond, seeking noneconomic and punitive damages. Among other rulings, the trial court struck plaintiffs' claims for punitive damages against all defendants; excluded evidence relating to plaintiffs' superseded pleadings; granted Hammond's motion for a directed verdict in her favor against all plaintiffs; denied plaintiffs' motions for directed verdicts against Parker NW; and declined to give various jury instructions requested by the parties. Plaintiffs' claims against Parker NW were submitted to the jury, which returned a verdict in favor of plaintiff Stevens and in Parker NW's favor against the other plaintiffs.

Plaintiffs appeal, advancing over two dozen assignments of error. In regard to the verdict in its favor against plaintiffs Roop, Aspenwall, Pointer, and Sherbourne, Parker NW cross-assigns error to the trial court's failure to give a requested jury instruction and to the granting of plaintiffs' motion to exclude certain evidence. In regard to the verdict in plaintiff Stevens's favor, Parker NW cross-appeals, raising the same issues as are raised in its cross-assignments of error. We affirm on the appeal and on the cross-appeal.

I. BACKGROUND

We begin with an overview of the facts, describing the original defamation action, the subsequent action for wrongful initiation of civil proceedings, and the trial court's rulings that are relevant to the assignments and cross-assignments of error on appeal. As necessary, we later detail additional relevant facts when we address the parties' specific arguments.

A. The Defamation Action

Parker NW is in the gravel business. In 1994, it was seeking approval from Clackamas County to expand a gravel mining operation on the Clackamas River. The county reviewed an application under the Goal 5 natural resources inventory process. Plaintiffs Roop and Stevens, who were members of a local citizen's group, Friends of Barton Park and The Scenic Clackamas River, opposed the application and testified against it at several county hearings.

Parker NW's president, Traverso, was concerned that the company was being defamed in the county hearings. He asked the company's land use attorney, Parisi, whether it could bring legal action against the opponents of the permit application. Parisi advised against doing so. Traverso also asked Parker NW's corporate attorney, Wall, whether it could bring an action for defamation for statements made in the county hearings. In a May 1994 letter, Wall advised Traverso that, assuming that the application process was quasi-judicial in nature, statements made therein were absolutely privileged and that it would be "safer to proceed against outright lies" after the completion of the hearing process.

On September 22, 1994, plaintiffs Aspenwall, Sherbourne, and Pointer hosted a broadcast of "The Water Forum." Plaintiffs Roop and Stevens appeared as guests on the program; Parker NW and the Clackamas County commissioners were invited to appear but did not attend. The five plaintiffs made various statements about Parker NW and the proposed gravel mining operation. Among other things, one or more of the plaintiffs stated that the proposed operation would "do further damage to the Clackamas [River]" and would contaminate the drinking water of some 200,000 nearby residents; that Parker NW had "paid off" the commissioners and the county; that Parker NW had previously illegally constructed a dike in the Oxbow area without first getting a permit; that Parker NW's construction operations had disturbed Indian burial sites; and that Parker NW had connived to have taxpayers foot the bill for some of its construction operations.

Parker NW's land use attorney, Parisi, saw the program and believed that the company's reputation had been impugned. In November 1994, Parisi's law firm prepared a written memorandum analyzing the statements made on the program. The memorandum did not, however, recommend pursuing legal action against plaintiffs. Two months later, Traverso asked Hammond to review the matter. After watching a videotape of the program, Hammond advised Traverso in writing that, in her opinion, River Island Sand & Gravel, and "possibly" Traverso individually, had a claim for defamation against the five participants.

Hammond opined that the "overall tenor" of the program was that Parker NW, as well as the county commissioners, were "acting illegally as it relates to the granting of the permit." She listed particular statements that she believed were defamatory and opined that those statements implied, among other things, that Parker NW was bribing county officials; that it was committing the felony of abuse of corpse in regard to "Indian graves" at the site; that it was contaminating the Clackamas River "so as to intentionally harm 200,000 residents downstream" who relied on the river for drinking water; that it was "disregarding/ignoring" statewide land use laws; and that it was using taxpayer money to further its own operations. She characterized plaintiffs' statements on the program as "neither fair nor accurate" and opined that, at the least, plaintiff Stevens had made statements that she knew to be false or lacked reasonable grounds to believe were true.

Hammond recommended that, if Parker NW brought a defamation action, it name all five participants in the program because, according to Hammond, each of them made defamatory statements and also "acquiesced" in the others' comments. She noted that the statutory 20-day time period for requesting the broadcaster's retraction of the statements had passed.²

Finally, Hammond noted various "practical considerations," including the possible reluctance of county commissioners to become involved as witnesses in such a case; the possibility that the participants had no funds to satisfy any judgment; the possibility that jurors would see the participants as "the little guys"; and the risk of "dredging up" the issue after it had become "dormant." Hammond noted that, as an alternative to bringing the action, Parker NW or its legal counsel might inform the participants in writing that it was demanding that they "cease and desist" from future statements, thereby "put [ting] them on notice" of their probable legal liability and the fact that Parker NW "will tolerate no such conduct in the future."

Hammond and Traverso also spoke by telephone about the possibility of legal action. Hammond's written notes from the conversation included the following unattributed comments: "let air out of group," "[t]hese people need to be put away," and "breaking backs." Traverso told Hammond that there were documents in his and Parisi's offices pertaining to the falsity of plaintiffs' statements; Hammond did not review the documents. Traverso did not inform Hammond of Wall's or Parisi's opinion about possible legal action or provide her with a copy of the memorandum prepared by Parisi's office.

On September 19, 1995, Hammond filed a defamation action on Parker NW's behalf, asserting claims for libel per se and slander per se against each plaintiff. On October 24, 1995, Hammond spoke for the first time to...