Slover v. Oregon State Bd. of Clinical Social Workers

• Decision Date: 20 November 1996
• Parties: Michael SLOVER, Appellant, v. OREGON STATE BOARD OF CLINICAL SOCIAL WORKERS, an Oregon Board; Carol Ormiston; Ronni Batterman; Linda K. Frost; Greg Smith; Agnes Sowle; Doris R. Reynolds; Mark F. Oldham and Elizabeth A. Buys, Respondents. 9309-05659; CA A84071.
• Court: Oregon Court of Appeals

Page 1098

927 P.2d 1098

144 Or.App. 565

Michael SLOVER, Appellant, v. OREGON STATE BOARD OF CLINICAL SOCIAL WORKERS, an Oregon Board; Carol Ormiston; Ronni Batterman; Linda K. Frost Greg Smith; Agnes Sowle; Doris R. Reynolds; Mark F Oldham and Elizabeth A. Buys, Respondents.

9309-05659; CA A84071.

Court of Appeals of Oregon.

Argued and submitted Oct. 2, 1995.

Decided Nov. 20, 1996.

Jossi Davidson, Silverton, argued the cause and filed the briefs for appellant.

Jas. Adams, Assistant Attorney General, argued the cause for respondents. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

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

ARMSTRONG, Judge.

Plaintiff appeals from a judgment dismissing his amended complaint for failure to state ultimate facts sufficient to constitute a claim. ORCP 21 A(8). Plaintiff is a licensed clinical social worker. He contends that he properly pleaded six claims against the Oregon State Board of Clinical Social Workers (the Board) and its members and administrators. Assuming that facts alleged in plaintiff's complaint are true, Glubka v. Long, 115 Or.App. 236, 238, 837 P.2d 553 (1992), we review to determine whether those facts state a claim. Hansen v. Anderson, 113 Or.App. 216, 218, 831 P.2d 717 (1992). We affirm in part and reverse in part.

The Board began a disciplinary proceeding against plaintiff in 1991 for allegedly grossly negligent and unethical conduct. Plaintiff disputed the Board's accusations. He and the Board then entered into a stipulated order in which plaintiff agreed to certain limitations on his practice and the Board agreed to dismiss the disciplinary proceeding with prejudice. Plaintiff alleges that he and the Board also entered into an oral agreement under which the Board agreed to dismiss the proceeding without making any official or unofficial finding that plaintiff had engaged in any wrongdoing.

The complaint alleges that, after entering into those agreements, the Board and its individual members and administrators (defendants) caused a newsletter for clinical social workers in Oregon to publish two articles about plaintiff. The two articles were on the same page of the newsletter, and the complaint alleges that both referred to plaintiff. ¹ The publication of the articles allegedly caused plaintiff embarrassment, humiliation and harm to his reputation.

Plaintiff alleged claims for defamation, false light, breach of contract, breach of a special duty and violation of his civil rights. The trial court granted defendants' motion to dismiss all of the claims. We reverse and remand the dismissal of plaintiff's defamation and false light claims against all defendants and his contract claim against the Board. We affirm the dismissal of plaintiff's other claims.

Plaintiff first assigns error to the trial court's dismissal of his defamation and false light claims. Defendants argue that plaintiff's defamation claim fails because defendants' statements were merely statements of opinion that could not be understood to be defamatory. A statement of opinion can be actionable, however, if "the recipients could reasonably have concluded that [the statement] was based on undisclosed defamatory facts." Bock v. Zittenfield, 66 Or.App. 97, 102, 672 P.2d 1237 (1983), rev. den. 296 Or. 486, 677 P.2d 702 (1984). Whether a statement is a statement of opinion or one of fact is a question of law. Id.

Plaintiff's amended complaint alleges that the statements that "[p]laintiff engaged in 'A Dubious Therapeutic Technique,' and [in] 'highly questionable techniques or exercises' involving adolescent boys" are defamatory. Those statements certainly convey the Board's opinion about the value of the therapeutic techniques employed by plaintiff. The statements could be understood to be based, however, on undisclosed defamatory facts about the techniques and their effect on the boys. Although the article goes on to describe some aspects of the disputed techniques, that disclosure does not preclude a jury from concluding that the opinion is based on undisclosed defamatory facts.

The other statement identified by plaintiff as defamatory is a statement of fact, not opinion. Plaintiff alleged that the newsletter article suggested that "[p]laintiff was found by the Board to have engaged in activities that 'had a detrimental effect' on his patients, [were] 'counter therapeutic,' and 'constituted inappropriate clinical practice.' " The statement about the nature and effect of plaintiff's therapeutic activities reads as a statement of fact, not mere opinion, about those activities.

We next must determine whether, as a matter of law, the statements can be understood to be defamatory. Beecher v. Montgomery Ward & Co., 267 Or. 496, 500, 517 P.2d 667 (1973). We conclude that they can be.

"A statement falsely ascribing to a person characteristics or conduct that would adversely affect his fitness for his occupation or profession is capable of having a defamatory meaning."

Bock, 66 Or.App. at 100, 672 P.2d 1237 (statements that news reporter was terminated for "unsatisfactory coverage" and because "he simply didn't perform his job" could be defamatory). Here, the statements related to plaintiff's professional performance and were conveyed to other members of his profession in Oregon. They involved conduct that could lead people to question plaintiff's fitness to be a clinical social worker and that could harm his professional reputation. Thus, the statements could be understood to be defamatory, and it was error for the trial court to dismiss the defamation claim as to them. ²

Defendants argued below that plaintiff's false light claim should be dismissed because it is duplicative of plaintiff's defamation claim. They do not address the claim on appeal. Defendants can be liable for both false light and defamation for the same conduct. See Magenis v. Fisher Broadcasting, Inc., 103 Or.App. 555, 559, 798 P.2d 1106 (1990). The two claims, though similar, address different concerns: false light addresses invasion of privacy while defamation addresses damage to reputation. Id. at 558, 798 P.2d 1106. Thus, it was error to dismiss the false light claim on the ground asserted by defendants.

Plaintiff next assigns error to the trial court's dismissal of his breach of contract claim. Plaintiff's amended complaint alleged a claim for breach of an express term of the alleged oral contract between plaintiff and the Board and for breach of the implied covenant of good faith and fair dealing in that contract. To state a claim for breach of contract, plaintiff must allege the existence of a contract, "its relevant terms, plaintiff's full performance and lack of breach and defendant's breach resulting in damage to plaintiff." Fleming v. Kids and Kin Head Start, 71 Or.App. 718, 721, 693 P.2d 1363 (1985); see also Chaney v. Shell Oil Co., 111 Or.App. 556, 567, 827 P.2d 196, rev. den. 313 Or. 299 832 P.2d 455 (1992) (complaint need only allege the existence of agreement and breach to survive ORCP 21 A(8) motion). A claim will survive a motion to dismiss if the complaint "contains even vague allegations of all material facts." Susitna Ltd. v. Pacific First Federal, 118 Or.App. 126, 128, 846 P.2d 438 (1993).

Plaintiff's complaint alleges enough to survive a motion to dismiss his breach of contract claim. Plaintiff alleges that he and the Board entered into an oral agreement. The amended complaint outlines the terms of that agreement ³ and alleges that plaintiff complied with all of its conditions. One of the alleged terms is that the Board "agreed to dismiss the Amended Notice without making any official or unofficial finding that [p]laintiff had engaged in any wrongdoing." Plaintiff alleges that defendants "breached the express terms of the agreement by publishing the article," because the article "suggested that [the Board] had determined in an official proceeding that [p]laintiff had in fact engaged in the conduct alleged, and that the conduct had the bad characteristics set forth." Thus, plaintiff alleges that there was an agreement and that the Board breached it. He alleges, in turn, that the breach damaged his reputation. Therefore, the amended complaint sets out all of the elements of a claim for breach of an express contract. ⁴ As alleged in the amended complaint, however, the contract was only with the Board and not with the individual defendants. Consequently, the court erred only in dismissing the claim against the Board.

Plaintiff also argues that his amended complaint stated all elements of a claim that the Board breached its contractual duty of good faith and fair dealing. Every contract contains an implied covenant of good faith and fair dealing. Uptown Heights Associates v. Seafirst Corp., 320 Or. 638, 645, 891 P.2d 639 (1995). The implied covenant serves to protect the objectively reasonable contractual expectations of the parties. Id. When a party engages in conduct that violates those expectations, it breaches the covenant.

Here, plaintiff alleged an oral contract. An alleged term of that contract was that the Board would not make "any official or unofficial finding that [p]laintiff had engaged in any wrongdoing." The complaint alleges that each party understood that a purpose of the agreement was "to minimize publicity, damage to plaintiff's reputation, financial expense and emotional distress." If a jury found those facts to be true, it could also find that plaintiff had a reasonable contractual expectation that the Board would not publicize the agreement or its circumstances.

Plaintiff's amended complaint alleges that the Board breached the implied covenant by publishing the articles about plaintiff. The complaint alleges that the articles "suggest[ed] the existence of facts * * * that had never been determined," gave "wide publicity to the unproven allegations against [p]laintiff," and...