Neumann v. Liles

434 P.3d 438, 295 Or. App. 340
CourtCourt of Appeals of Oregon
DecidedDecember 12, 2018
DocketA149982
StatusPublished
Cited by8 cases

This text of 434 P.3d 438 (Neumann v. Liles) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neumann v. Liles, 434 P.3d 438, 295 Or. App. 340 (Or. Ct. App. 2018).

Opinion

LAGESEN, J.

*439*342This 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, 323 P.3d 521. 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, 369 P.3d 1117. 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, 111 S.Ct. 1586, 113 L.Ed.2d 650 (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 *343conclude 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, 369 P.3d 1117. 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, 369 P.3d 1117. 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, 369 P.3d 1117. 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 arises out of:
"(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
"(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, *440executive or judicial body or other proceeding authorized by law;
"(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
"(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."

*344

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Cite This Page — Counsel Stack

Bluebook (online)
434 P.3d 438, 295 Or. App. 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neumann-v-liles-orctapp-2018.