Tubra v. Cooke, 050910015

CourtCourt of Appeals of Oregon
Citation225 P.3d 862,233 Or. App. 339
Docket NumberA134332.,050910015
PartiesTim TUBRA, an individual, Plaintiff-Appellant, v. John Michael COOKE and Ron Swor, individuals; and the International Church of the Foursquare Gospel, a California nonprofit corporation, Defendants-Respondents.
Decision Date27 January 2010
225 P.3d 862
233 Or. App. 339
Tim TUBRA, an individual, Plaintiff-Appellant,
John Michael COOKE and Ron Swor, individuals; and the International Church of the Foursquare Gospel, a California nonprofit corporation, Defendants-Respondents.
Court of Appeals of Oregon.
Argued and Submitted on August 8, 2008.
Decided January 27, 2010.

[225 P.3d 863]

Christopher G. Lundberg, Portland, argued the cause for appellant. With him on the briefs were Shay S. Scott, Matthew E. Malmsheimer, and Haglund Kelley Horngren Jones & Wilder LLP.

John T. Kaempf, Portland, argued the cause for respondents. With him on the brief were Ronald E. Bailey and Bullivant Houser Bailey P.C.

Before WOLLHEIM, Presiding Judge, and ARMSTRONG, Judge, and RIGGS, Senior Judge.


233 Or. App. 341

This case arises from a defamation claim that plaintiff, a former interim pastor, brought against his employer church and two of its officials, and that ultimately resulted in a jury verdict and award of damages in plaintiff's favor. Plaintiff appeals the subsequent post-verdict judgment granting defendants' motion for judgment notwithstanding the verdict (JNOV), in which the trial court concluded that the Free Exercise Clause of the First Amendment to the United States Constitution

225 P.3d 864

deprived it of jurisdiction to adjudicate the dispute. The issue on appeal is one of first impression for Oregon appellate courts: whether the First Amendment bars recovery for a plaintiff in a claim of defamation that arose from defendants' statements that plaintiff had misappropriated church funds and was dishonest during his time as pastor. We conclude that, under the circumstances presented here, the First Amendment does not bar plaintiff's claim. Accordingly, we reverse.

When reviewing a grant of a JNOV motion, we review the trial evidence in the light most favorable to the party who prevailed before the jury. Bennett v. Farmers Ins. Co., 332 Or. 138, 147-48, 26 P.3d 785 (2001). In this case, that is plaintiff. We state the facts in accordance with that standard.

Plaintiff had been a pastor for various congregations within the International Church of the Foursquare Gospel (the church) since 1981. As of 2003, he was the associate pastor at the Columbia City Foursquare Church, where defendant Cooke was a senior pastor. Cooke also served as a divisional superintendent, which required him to match prospective pastors with vacancies in congregations within his district.

In September 2003, the Columbia City church was experiencing financial difficulties and, as a result, Cooke laid off plaintiff. Cooke offered plaintiff a position as pastor in Vernonia, which was roughly a one-hour drive from Columbia City. Plaintiff was unenthusiastic about the prospective position in Vernonia and explained to Cooke that he had concerns about the salary, health insurance coverage, and lack of opportunities to supplement his income in such a small town.

233 Or. App. 342

Moreover, plaintiff told Cooke that taking the position in Vernonia would sidetrack him from his long-expressed goal of founding a Foursquare church in Hillsboro.

Despite plaintiff's misgivings, Cooke and defendant Swor, the district supervisor, continued to discuss the opportunity at Vernonia with plaintiff. They offered him a monthly salary of $1,500, which was the amount that the Vernonia church council indicated that it could afford to pay plaintiff; a subsidy of an additional $1,100 per month for plaintiff's first three months (totaling $3,300) to match the salary that the outgoing pastor had received; and health care coverage for up to six months. Swor and Cooke indicated that the health insurance coverage and salary subsidies were "free gifts" that plaintiff had no obligation to repay; they also indicated to plaintiff, orally, that beyond the six-month promise of health insurance coverage, they "would not leave him uncovered" for health benefits if the Vernonia church could not pick up that expense.

Plaintiff eventually accepted the position, but emphasized to Cooke and Swor that he wished to be considered an interim pastor at Vernonia. Plaintiff stated that Cooke had encouraged him to approach the position on a "rent-to-own" basis and speculated that perhaps plaintiff would change his mind about staying permanently once he arrived there. Plaintiff agreed to keep an "open mind" about the situation but continued to assert to Swor and Cooke that he was taking the position on an "interim" basis.

From his first day at the Vernonia church, plaintiff felt that "some deception was taking place" toward the Vernonia church's council and congregation by Cooke and Swor regarding plaintiff's interim status. For plaintiff's first service, Cooke sent a letter of introduction to be read to the congregation by one of the Vernonia council members announcing "the appointment of [plaintiff] as the pastor of the Vernonia Foursquare Church." That introduction "shocked" plaintiff and his wife; they had never been introduced to a new congregation with such a letter, and they both believed that the letter misled the congregation into believing that plaintiff was the congregation's permanent pastor.

233 Or. App. 343

Plaintiff did not tell the congregation of his intention to remain only temporarily at Vernonia; however, plaintiff immediately called Swor about the letter and, later, met with Cooke to discuss plaintiff's concerns about his status at Vernonia. Soon after that meeting, plaintiff called Swor and told him again that he did not wish to remain at Vernonia on a long-term basis. Swor followed up with a letter stating that plaintiff's

225 P.3d 865

health insurance would continue to be covered for up to six months, that Swor would send a check for $3,300 to subsidize plaintiff's first three months of salary, and that those gifts would not be expected to be repaid in any way. The letter further indicated that the understanding between Swor, Cooke, and plaintiff was that plaintiff was not staying on permanently, but that plaintiff would not be referred to as "interim" and communication with the Vernonia council would remain as it was.

In April 2004, plaintiff, with the Vernonia council's knowledge, withdrew $3,000 from the church account. He discussed that transaction with the council, explaining that the money had been earmarked for him as a gift. The council accepted that explanation and issued the check in accordance with its normal procedures, including having two individuals (in this instance, plaintiff and a council member) sign the check. The expenditure was further documented in expense reports that were sent to the district offices. Plaintiff subsequently deposited that check into a personal checking account and wrote four checks against that amount totaling $1,844.16 to cover health insurance premiums.

In June 2004, plaintiff, Cooke, and Swor informed the Vernonia council that plaintiff was only a temporary pastor, and that they were looking for a new pastor to take over the congregation. On July 11, plaintiff told the congregation that he would be leaving. On August 17, Cooke told plaintiff that he had found a new pastor for the Vernonia church and that plaintiff would be transitioned out over the next 30 days.

On August 31, Cooke met with the Vernonia council to discuss the transition with the new pastor. Part of the transition process required the council or superintendent to review the accounting; the Vernonia council's bookkeeper had done so and, at that meeting, asked Cooke to take a look

233 Or. App. 344

at the April 2004 transaction for $3,000 and let her know if there was a problem with it. Cooke immediately contacted Swor about that transaction, and, on September 15, Swor met with plaintiff about it, telling him that he was being charged with "misappropriation of church funds" for the $3,000 withdrawal, and asked plaintiff for an explanation of the withdrawal. Plaintiff testified that that was the first he had heard of the allegations, that he was "shocked" by Swor's accusation, and that it had come "out of nowhere," and, as a result, he was unable to respond and ended the meeting. Two days later, Swor's secretary called plaintiff and informed him that he "was done at Vernonia" and "to pack [his] bags and leave," which he did.

On October 19, plaintiff had a phone conversation with Swor about the charges of misappropriation; Swor memorialized the "points of agreement" from that discussion in a letter dated November 9, 2004. In those points, plaintiff agreed to return the $3,000 to the Vernonia church through the district office, "as that money was intended for the subsidy of the church for your salary for the first three months of employment there and not to be taken over and above your salary." Furthermore, the letter indicated that, because plaintiff had not chosen to seek reappointment in a Foursquare Church, his license to be a Foursquare pastor would be suspended until he chose to request reinstatement.

In the meantime, Swor and Cooke drafted a letter that Swor read aloud to the Vernonia congregation. Swor and Cooke testified that they wanted to inform the congregation about the circumstances of plaintiff's departure because it "had a right to know what was happening" and because they wanted to avoid speculation and rumors regarding plaintiff and the April transaction. In that letter, Swor explained that, "[t]hrough communication between the district staff and the church council, and a review of the church books and council minutes, it is now evident that there has been, to some extent, a financial misappropriation by former pastor [plaintiff]." That letter also indicated that plaintiff had taken the position in Vernonia on the express condition that he would consider a long-term stay there, that he had told the district in November 2003 that he was not interested in remaining at the church for longer than six months to a year, that he

233 Or....

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