Argued and Submitted: September 6, 2013.
Marion County Circuit Court. 09C15489. Albin W. Norblad, Judge.
Michael Mills argued the cause for appellant. With him on the opening brief were Michael Shurtleff and Mills, Jacobson Halliday, PC. On the reply brief was Michael Shurtleff.
George W. Kelly argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[261 Or.App. 199] HADLOCK, J.
Defendant appeals a judgment for plaintiff in this case for false arrest, malicious prosecution, and abuse of process. The trial court entered that judgment following a jury verdict in plaintiff's favor. Of the five assignments of error that defendant raises on appeal, we reject the fourth and fifth without discussion. Of the remaining three assignments of error, we write primarily to address the first, which is dispositive. In conjunction with that assignment, defendant contends that the trial court erred in denying his motions for judgment notwithstanding the verdict (JNOV) on his claim for false arrest and, alternatively, for a new trial on that claim. He makes a preserved argument and an unpreserved argument in support of that contention. Because defendant's preserved argument does not establish that any error by the trial court substantially affected defendant's rights--and because we decline to address the unpreserved argument--defendant has presented no basis for reversal of the trial court's judgment. See Shoup v. Wal-Mart Stores, Inc., 335 Or. 164, 174, 61 P.3d 928 (2003) (" In every case, the appellate courts must adhere to the limitation of ORS 19.415(2) and reverse or modify a judgment only if it can be determined from the record that the error 'substantially affect[ed] the rights of a party.'" (Brackets in original.)). Accordingly, we affirm.
We state the facts in the light most favorable to plaintiff, who prevailed below. Jensen v. Medley, 336 Or. 222, 226, 82 P.3d 149 (2003). This case involves events that occurred at a convenience store, U.S. Market 107, which is operated by U.S. Market 107, Inc. Plaintiff's brother, Bains, and defendant's father, Ditta, each own 50 percent of U.S. Market 107, Inc. Ditta signed a power of attorney that gave defendant authority to act as president of that company. Bains and defendant's brother, Din, own another store, U.S. [261 Or.App. 200] Market 105, as equal partners. Plaintiff was employed as the person " in charge" of both stores: U.S. Market 107 and U.S. Market 105.
In 2007, litigation (distinct from this case) arose between the various owners of the two stores. Defendant, acting on Ditta's behalf, filed suit against Bains. Bains countersued. Din and Bains also litigated against each other.
In January 2008, defendant sent plaintiff a letter terminating plaintiff's employment at U.S. Market 107 and informing him that he was " barred from all U.S. Market's property" and that he would " be arrested for trespassing if [he] set foot on U.S. Market Property[,]" including U.S. Market 107. Two days later, Din's attorney sent a letter to
plaintiff's attorney requesting that plaintiff " be replaced immediately as manager of U.S. Market #105 * * *." The letter cited the store's decreased profitability as the reason for the requested termination. In that letter, Din's attorney also suggested turning management over to a third party or, alternatively, dissolving the partnership and shutting down the store. However, Bains, who owned half the stock in the corporation that operated U.S. Market 107 and who was an equal partner with Din in the ownership of U.S. Market 105, separately told plaintiff that he was free to continue working at both store locations.
Also in early 2008, McLaughlin, the attorney for U.S. Market 107, Inc., hired Kuenzi, a private investigator, to look into U.S. Market 107's decreased profitability. Kuenzi analyzed inventory and sales and determined that employee theft likely had caused the decreased profits, as overall sales had actually increased.
On June 26, 2008, Kuenzi was working at the offices of U.S. Market Enterprises LLP  and watching a live [261 Or.App. 201] video feed from U.S. Market 107, as recorded and broadcast by the store's security system. Kuenzi later testified that the video had shown plaintiff wheeling a handcart with approximately four full cases of beer out of the store and loading the beer into a vehicle. Kuenzi testified that she showed the video to other people, including attorney McLaughlin, and then concluded that she had probable cause to believe that plaintiff had committed theft. Accordingly, she called the police. Law enforcement officers went to the store, Kuenzi completed a citizen's arrest form, and the officers took plaintiff into custody. Plaintiff was released later that evening.
Earlier in 2008, before plaintiff's arrest, U.S. Market 107, Inc., Ditta, and defendant had moved for appointment of a custodian for U.S. Market 107, apparently in conjunction with the then-ongoing litigation between the store owners. Bains had objected to the motion, and a hearing had occurred in May 2008. The day after plaintiff's arrest at U.S. Market 107, McLaughlin sought an expedited order appointing a custodian for the store, citing concerns about inventory control and plaintiff's arrest for theft. McLaughlin later wrote to plaintiff's attorney, demanding plaintiff's resignation and opining that " [n]o competent person would allow [plaintiff] near U.S. Market #107 at any time." The court granted McLaughlin's motion in July 2008 and appointed a custodian for U.S. Market 107, which effectively ended plaintiff's employment at the store.
The district attorney eventually dismissed the charges that had been brought against plaintiff. Plaintiff then initiated this litigation, alleging false arrest, malicious prosecution, and abuse of process. Plaintiff pursued those claims against defendant on a theory that defendant was liable for Kuenzi's actions. The case went to trial before a jury. At trial, the parties presented a great deal of evidence about video recordings of the events that occurred at U.S. [261 Or.App. 202] Market 107 on June 26, 2008. Kuenzi and others testified that they had watched the video feed on June 26 and that it showed plaintiff taking beer out of the store. When plaintiff played what he asserted was the same video at trial, however, it appeared to show a different man--not plaintiff--wheeling empty beer bottles out of the store. Kuenzi testified that plaintiff's video recording was not the same video that she had viewed on June 26, 2008. The defense suggested that plaintiff had somehow altered the video that he played at trial and that, as a result, it did not show what actually had happened on June 26.
Defendant moved for a directed verdict after the parties presented their evidence. The trial court denied that motion and submitted the case to the jury, which was instructed on the elements of each of plaintiff's tort claims. The court also instructed the jury that defendant could be held liable for Kuenzi's actions in either of two ways. First, the court explained that defendant could be liable for ...