Staten v. Steel

• Citation: 191 P.3d 778,222 Or. App. 17
• Decision Date: 20 August 2008
• Docket Number: 160515033; A133080.
• Parties: Greg STATEN, Plaintiff-Respondent, v. Vetta STEEL, Jerry Franklin, Jeanette Franklin, Tiffany Gendron, Carl Pierce, Jan Pierce, Garry Rose, Olivia Wytcherley, Herbert Gelwick, Dorothy Sims, Carol Alf, and Robert Falbo, Defendants-Appellants, and Chuck White, Bob Rice, and Does 1-50, Defendants.
• Court: Court of Appeals of Oregon

191 P.3d 778

222 Or. App. 17

Greg STATEN, Plaintiff-Respondent, v. Vetta STEEL, Jerry Franklin, Jeanette Franklin, Tiffany Gendron, Carl Pierce, Jan Pierce, Garry Rose, Olivia Wytcherley, Herbert Gelwick, Dorothy Sims, Carol Alf, and Robert Falbo, Defendants-Appellants, and Chuck White, Bob Rice, and Does 1-50, Defendants.

160515033; A133080.

Court of Appeals of Oregon.

Argued and Submitted February 1, 2008.

Decided August 20, 2008.

Brian Fahling argued the cause for appellants. With him on the briefs were Michael J. DePrimo, Stephen M. Crampton, and American Family Association Center for Law & Policy, Mississippi, and Gregory T. Lusby, Eugene, and Arnold, Gallagher, Saydack, Percel, Roberts & Potter, P.C.

Claud Ingram, Eugene, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.

BREWER, C.J.

Defendant Falbo appeals from a judgment based on a jury verdict for a total of $110,000 on plaintiff's claims for intentional infliction of emotional distress and invasion of privacy. Plaintiff dismissed his claims against other defendants during the trial. Those other defendants appeal from the trial court's refusal to award them sanctions or attorney fees against plaintiff and his attorney. We conclude that the trial court's actions that are the basis for Falbo's primary assignments of error are not reviewable on appeal and that none of the assignments of error that are reviewable support a reversal of the judgment against him. However, we also conclude that the trial court's failure to make findings of fact in disposing of the other defendants' motion for attorney fees and sanctions requires that we vacate its order denying that motion, as well as its order denying defendants' subsequent motion for leave to file an amended motion for attorney fees and their separate motion for sanctions, and that we remand those matters for further proceedings.

Many of the facts are undisputed; we state those that are disputed in the light most favorable to plaintiff because of the verdict in his favor. On March 16, 2005, plaintiff, his wife, and some friends went to Club 71, a bar located next to I-5 in Sunny Valley that featured nude dancing. Because he was on call for his employer, plaintiff was the designated driver and drank only soft drinks. As his group left around midnight, they encountered a number of people, including Falbo, who were opposed to nude dancing and were protesting Club 71 in the hope of shutting it down. Among other things, the protesters took pictures of the club's patrons and of the license plates of their vehicles; Falbo maintained a website on which he posted some of those pictures. Because of the protestors' location and the flashes from their cameras, which impeded plaintiff's ability to see, it was difficult for plaintiff to back his large truck down the narrow lane from the club to a place where he could turn it around. The flash from one picture that Falbo took of plaintiff while he was in the driver's seat of his truck significantly impaired plaintiff's vision, making it dangerous for him to back his truck. After that picture was taken, plaintiff got out of the truck, grabbed Falbo's camera, threw it to the ground, and got back in the truck. A protester gave Falbo another camera, and he took another picture, again impairing plaintiff's vision. When plaintiff got out of his truck a second time some protesters grabbed him. After plaintiff's friends came to his assistance, he returned to his truck, managed to back it down the narrow road, and left. Because plaintiff's truck had a large diesel engine that was not warmed up, he could drive only at a low speed.

Falbo subsequently posted two pictures of plaintiff in the driver's seat of his truck and a picture of the truck's license plate on his website and added the following commentary:¹

"Now when Guys get sexualy[sexually] frustrated and drunk they get prone to violence which bring us to this guy who alledgedly[allegedly] attacked one of the protesters who took this picture after he alledgedly[allegedly] threaten the crowd. We don't know if he was drunk or not but he alledgedly[allegedly] back up more than 50 feet at a high speed. He alledgedly almost hit a man in the middle of the road who later got into the back of his alledged truck. They also got photos of the front of his alledged truck. It appeared to one witness that he didn't reconize his buddy and thought it was a protester in his path. And this lead to his alledged verbal threat to the protesters.

"SO Please be carefull.

"also check out igotyournumber and seewhosthere.com"

The posting on Falbo's website quickly became known in plaintiff's community, with the commentary being the focus of attention. Both plaintiff's wife and one of his friends who had been in the party that went to Club 71 that night pointed the posting out to plaintiff. Plaintiff believed that the posting was inaccurate and that it impugned his reputation. He therefore filed this action against Falbo and a number of other people who were involved in the protests, asserting claims for invasion of privacy by false light, intentional infliction of emotional distress, and civil conspiracy. Thereafter, Falbo posted additional commentary on his website:

"THIS JUST IN.

"I Just got word from chuck. Greg Staten alleges that, he is the guy in the truck. Greg Staten is upset, he feels that we implied that he was sexually frustrated. We thought we broke the link when we stated that `we didn't know if he was drunk or not'. I can understand why Greg Staten would be upset with everyone at the Glendale mill thinking that Greg Staten is sexually frustrated!. So to set the record straight Greg Staten is allegedly not sexually frustrated. Chuck says that he has a strong right arm and that a sure sign of someone `who is not allegedly sexually frustrated.' OH OK I know what you think he was implying but I'm sure he meant that woman are attracted to guys with strong right arms. (or men, we don't want to wrongfully imply that Greg Staten is a hetro-sexual) For more on Greg Staten see part of his lawsuit. lawsuit"

The link at the end of the paragraph led to a short excerpt from plaintiff's complaint with additional commentary:²

"The Name of the club was removed because we don't advertise for Dick Lacey in any form.

"Well Greg, That not the way I heard it told. But I have to ask. How do you ask your wife to go with you to a nudity bar? Isn't the Grey Hound bus station entertaining enough for her? Maybe she enjoys looking at NUDE WOMAN DANCERS? I don't know. You know when the news of the suit hits the Grants Pass papers a lot more people will see the web page seewhosthere.com and then will find the link to my page.

"Let me guess, Dick (AKA Larry) told you it won't cost you a thing. His lawyer would work on a contingency. Did they tell you that when you lose you will have to pay for the cost of the defendents[defendants]?. I think you might want to check with a second lawyer. Or you might want to check http://www.lectlaw.com/def/c103. htm

"and http://www.lib.niu.edu/ipo/ip951121. html" Falbo subsequently explained that "Chuck" was a fictitious name and that Falbo was the source for all of the information in the commentary.

After learning about this additional commentary and its effect in his community, plaintiff amended his complaint to add new counts of invasion of privacy by false light and intentional infliction of emotional distress arising from that commentary. All defendants thereafter joined in a special motion to strike under ORS 31.150, asserting that the website posting constituted protected speech in connection with a matter of public interest. The trial court denied that motion. Each defendant thereafter filed a motion for summary judgment. The defendants other than Falbo asserted that they had no involvement in Falbo's internet postings. Falbo asserted that his actions were speech that was protected under the First and Fourteenth Amendments. The trial court denied all of the summary judgment motions. During trial, the court indicated that it would dismiss the claims against the defendants other than Falbo unless plaintiff produced evidence that those defendants had aided and abetted Falbo's Internet postings. Plaintiff was unable to do so and, therefore, voluntarily dismissed his claims against those defendants. The case continued against Falbo alone, resulting in the verdict in plaintiff's favor. Falbo did not move for a directed verdict at any time, nor did he otherwise seek dismissal of any of plaintiff's claims during the trial.

In his first assignment of error, Falbo asserts that the trial court erred in denying his special motion to strike under ORS 31.150. In his second assignment of error, he asserts that the court erred in denying his motion for summary judgment. In support of both assignments, he argues that the statements on the website were speech that is protected by the First and Fourteenth Amendments. However, as we now explain, neither assignment is reviewable on appeal. We first discuss the motion for summary judgment, because the reasons why that motion is not reviewable are the foundation for the reasons why the special motion to strike is not reviewable.

"Reviewability generally involves the consideration of a variety of rulings and orders made by the court, usually before judgment." State v. Montgomery, 294 Or. 417, 420, 657 P.2d 668 (1983) (emphasis in original). In many instances, the legislature has enacted statutes that govern the reviewability of such orders. See, e.g., Mastriano v. Board of Parole, 342 Or. 684, 159 P.3d 1151 (2007) (analyzing ORS 144.335(1), which governs the reviewability of parole board rulings). However, in other circumstances, the reviewability of trial court or administrative agency rulings is governed by judicially developed principles. See, e.g., State v. Dominguez-Coronado, 215...