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Snook v. Swan

Court of Appeals of Oregon

June 6, 2018

Edward D. SNOOK, Plaintiff-Appellant,
v.
Deborah K. SWAN, Defendant-Respondent.

          Submitted April 7, 2017

          Josephine County Circuit Court 14CV0835; Thomas M. Hull, Judge.

          James E. Leuenberger and James E. Leuenberger PC fled the briefs for appellant.

          Deborah K. Swan fled the brief pro se.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

         Case Summary:

         Plaintiff appeals the trial court's limited judgment denying plaintiff's special motion to strike pursuant to ORS 31.150. Specifically, defendant, in her answer to plaintiff's complaint, fled a counterclaim for defamation against plaintiff. In response, plaintiff fled a special motion to strike under ORS 31.150. The trial court entered a limited judgment denying the motion and plaintiff appeals, asserting that the trial court erred in denying his motion to strike the counterclaim. Held: Because defendant failed to submit any evidence from which a reasonable trier of fact could find that she met her burden of production, the trial court erred in denying the special motion to strike.

         Limited judgment reversed and remanded with instructions to grant plaintiff's ORS 31.150 special motion to strike defendant's counterclaim for libel per se.

         [292 Or.App. 243] HADLOCK, J.

         Plaintiff appeals the trial court's limited judgment denying plaintiff's special motion to strike pursuant to ORS 31.150. See ORS 31.150(1) ("If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion."). Specifically, defendant, in her answer to plaintiff's complaint, filed a counterclaim for defamation against plaintiff.[1] In response, plaintiff filed a special motion to strike the counterclaim under ORS 31.150, the "anti-SLAPP" statute.[2] The trial court entered a limited judgment denying the motion, and plaintiff appeals, asserting that the court erred in denying his motion to strike the counterclaim. As explained below, we conclude that the court erred in denying the motion and, therefore, reverse the limited judgment.

         Under the anti-SLAPP statute, a party who "is sued over certain actions taken in the public arena [may] have a questionable case dismissed at an early stage." Yes on 24-367 Committee v. Beaton, 276 Or.App. 347, 350, 367 P.3d 937 (2016) (internal quotation marks omitted). When a party files a special motion to strike under ORS 31.150, "the trial court must apply a two-step burden-shifting process." Wingard v. Oregon Family Council, Inc., 290 Or.App. 518, 521, ___ P.3d ___ (2018). First, the court must determine whether the party filing the motion has met its burden of showing that the claim arises out of statements or conduct protected by ORS 31.150(2).[3] Once that burden is met, the [292 Or.App. 244] burden shifts to the party bringing the claim "to establish that there is a probability that [the party] will prevail on the claim by presenting substantial evidence to support a prima facie case." ORS 31.150(3). If the party bringing the claim meets that burden, the court must deny the special motion to strike. Id.

         Here, in response to defendant's counterclaim for defamation, plaintiff filed a special motion to strike pursuant to ORS 31.150. Plaintiff asserted that defendant's claim arose out of "a written statement in a place open to the public or a public forum in connection with an issue of public interest." See ORS 31.150(2)(c). Plaintiff further asserted that defendant had "not set forth a potentially viable case against" him; plaintiff attached an affidavit and exhibits in support of his special motion to strike. Defendant filed two responses in opposition to plaintiff's motion and declaration.[4] She did not attach any affidavit or declaration to either of those responses to the motion, nor did she later file an affidavit or declaration that referenced the special motion to strike.[5] At the hearing on the motion, the trial court stated that it was not holding an evidentiary hearing, and that, for purposes of the special motion to strike, the [292 Or.App. 245] facts would be established through the pleadings and supporting affidavits and declarations.[6]

         Following the hearing, the court issued a letter opinion in which it addressed plaintiff's special motion to strike. With respect to the question whether plaintiff had met his burden of demonstrating that the counterclaim arose out of conduct covered by ORS 31.150, the court concluded that he had, and that ORS 31.150(2)(c) applied. That is, the court concluded that the counterclaim related to a statement made "in a place open to the public or a public forum in connection with an issue of public interest." ORS 31.150(2)(c). Having concluded that plaintiff had met his burden at the first step of the analysis, the court explained that the burden shifted to defendant to establish a substantial probability that she would prevail by presenting "substantial evidence to support a prima facie case." Those conclusions are not at issue on appeal.

         With respect to the question whether defendant had met her burden to establish a substantial probability that she would prevail, the court noted that defendant had opposed the motion to strike in writing and at the hearing. It also noted that defendant had not submitted "an affidavit or declaration in support of her position" and that the hearing on the motion had not been "an evidentiary hearing whereby the parties [were] allowed to provide oral testimony." However, the court took the view that, under ORS 31.150, defendant was not required to "file affidavits or declarations" and, based on that understanding, the court denied plaintiff's special motion to strike, ...


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