Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Plaintiffs-Appellants Cross-Respondents,
Christopher LILES, Defendant-Respondent Cross-Appellant.
Submitted on remand September 9, 2016.
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.
C. Baldwin and Watkinson Laird Rubenstein Baldwin &
Burgess, P.C., fled the briefs for
K. Williams fled the briefs for respondent-cross-appellant.
Armstrong, Presiding Judge, and Tookey, Judge, and Lagesen,
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.
on appeal; reversed and remanded on cross-appeal.
Or.App. 342] LAGESEN, J.
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.
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.
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.
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 ...