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Neumann v. Liles

Court of Appeals of Oregon

December 12, 2018

Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Plaintiffs-Appellants Cross-Respondents,
v.
Christopher LILES, Defendant-Respondent Cross-Appellant.

          Submitted on remand September 9, 2016.

          Lane County Circuit Court 121103711; On remand from the Oregon Supreme Court, Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016). Charles D. Carlson, Judge.

          Steve C. Baldwin and Watkinson Laird Rubenstein Baldwin & Burgess, P.C., fled the briefs for appellants-cross-respondents.

          Linda K. Williams fled the briefs for respondent-cross-appellant.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Lagesen, Judge.

         Case Summary:

         On remand from the Supreme Court in Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016), the Court of Appeals reevaluated its holding in Neumann v. Liles, 261 Or.App. 567, 323 P.3d 521 (2014), where it reversed the trial court's grant of defendant's motion to dismiss under Oregon's Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes. The case involves a lawsuit brought by plaintiffs, a wedding venue operator and the wedding venue she operates, against defendant for defamation (among other claims), based on defendant's negative review of the venue on google.com. On appeal, the Supreme Court applied the framework established by Unelko Corp. v. Rooney, 912 F.2d [295 Or.App. 341] 1049 (9th Cir 1990), cert den, 499 U.S. 961 (1991), for assessing whether a statement published online is entitled to protection under the First Amendment to the United States Constitution, and in doing so concluded that defendant's review was protected by the First Amendment. Consequently, the Supreme Court remanded the case to the Court of Appeals to resolve plaintiffs' argument that their claim is not subject to the anti-SLAPP statute and to resolve defendant's cross-appeal relating to the amount of attorney fees awarded by the trial court. Held: Plaintiffs' claims were subject to the anti-SLAPP procedures under the terms of ORS 31.150(2)(d) because the claims were based on defendant's conduct of publishing an online review on a public website expressing his opinion. Because the Court of Appeals determined that this action was subject to the anti-SLAPP statute, the trial court was authorized to award attorney fees to defendant under ORS 31.152(3), as it did. However, the trial court erred when it treated $7, 500 as the "amount in controversy" for purposes of evaluating the reasonableness of defendant's claim for attorney fees because the complaint, along with the pretrial demand letter, alleged two distinct claims on behalf of each plaintiff, totaling $15, 000. The reasonableness of defendant's request for attorney fees must be assessed with that amount in mind.

         Affirmed on appeal; reversed and remanded on cross-appeal.

         [295 Or.App. 342] LAGESEN, J.

         This matter is before us on remand from the Supreme Court. Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016) (Neumann II). Plaintiff Neumann, and the wedding venue she operates, plaintiff Dancing Deer Mountain, LLC, sued defendant for defamation (among other claims) based on defendant's negative review of the venue on google, com. On defendant's motion under Oregon's Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes, ORS 31.150 to 31.155, the trial court dismissed the case in its entirety. The first time that matter was before us, we reversed the trial court's judgment insofar as it dismissed plaintiff Neumann's defamation claim, concluding that she had adequately demonstrated that defendant's negative online review of the wedding venue operated by plaintiff was actionable under Oregon case law on defamation. Neumann v. Liles, 261 Or.App. 567, 580-81, 323 P.3d 521 (2014) (Neumann I). In so doing, we assumed without deciding that defendant properly raised his motion to dismiss under the anti-SLAPP statutes. Id. at 574-75. Our disposition of the appeal obviated the need to address defendant's cross-appeal, in which defendant contended that the trial court erred when it did not award him the full amount of attorney fees that he incurred litigating the anti-SLAPP motion.

         The Supreme Court then allowed review of our decision "to determine how an actionable statement of fact is distinguished from a constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is made affects that analysis." Neumann II, 358 Or at 710. The Supreme Court ultimately adopted the framework established by the United States Court of Appeals for the Ninth Circuit in Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir 1990), cert den, 499 U.S. 961 (1991), for assessing whether a statement published online is entitled to protection under the First Amendment to the United States Constitution. Analyzing defendant's online review under the Unelko framework, the Supreme Court concluded that defendant's review was constitutionally protected by the First Amendment because, when the review was viewed as a whole, a "reasonable factfinder could not [295 Or.App. 343] conclude that [the] review implies an assertion of objective fact," and because it spoke to a "matter [] of public concern." Neumann II, 358 Or at 722. Consequently, the review was not actionable and, contrary to our conclusion, the trial court had properly dismissed plaintiff Neumann's defamation claim. Id. The court then remanded to us "to resolve Neumann's argument that her claim is not subject to the provisions of Oregon's anti-SLAPP statute, and to resolve [defendant's] cross-appeal relating to the amount of attorney fees awarded by the trial court." Id. at 724. We turn to that task. For the reasons explained below, we affirm on appeal and reverse and remand on defendant's cross-appeal challenging the trial court's attorney fee award.

         The first question before us on remand is whether the anti-SLAPP statutes apply to this action at all. As the Supreme Court explained, we must address that question to determine whether defendant is entitled to recover attorney fees. Id. at 723. Even though the court itself declined to address that question in Neumann II, its decision goes a long way toward resolving it.

         ORS 31.150(2) identifies the four types of claims to which the anti-SLAPP procedures apply. It provides:

"A special motion to strike may be made under this section against any claim in a civil action that ...

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