GRITZBAUGH MAIN STREET PROPERTIES, LLC; Fran Gritzbaugh and Kim Gritzbaugh, Respondents - Cross-Appellants, v. GREYHOUND LINES, INC., a Delaware corporation, Appellant - Cross-Respondent, and Steven BROWN, dba In Neon, The Sign Store, Cross-Respondent, and LAIDLAW, INC., a foreign corporation, Defendant.
9912-13455; A112213 (Control), A114212 (Cases Consolidated)
Court of Appeals of Oregon
May 10, 2006
135 P3d 345
Argued and submitted July 21, 2004, on appeal, contempt order reversed; general judgment on award of punitive damages reversed and remanded with instructions to order new trial on issue of punitive damages with respect to both nuisance and trespass claims; on cross-appeal, general judgment on nuisance claim reversed and remanded; otherwise affirmed May 10, 2006
David N. Goulder argued the cause for respondents - cross-appellants. With him on the briefs were Richard S. Yugler and Landye Bennett Blumstein LLP.
Before Edmonds, Presiding Judge, and Schuman, Judge, and Deits, Judge pro tempore.
DEITS, J. pro tempore.
Edmonds, P. J., concurring.
This is a consolidated appeal from a contempt order, in which defendant Greyhound Lines, Inc., was found in contempt of a preliminary injunction, and from a general judgment, in which defendants Greyhound and Steven Brown were found liable for trespass. Defendants appeal from the order and judgment. Plaintiffs cross-appeal from the general judgment. We reverse on the contempt order, and reverse and remand on the general judgment.
Plaintiffs are the owners of commercial property on Main Street in downtown Tigard, Oregon. A small building is located on the property. It is separated from the public sidewalk by an asphalt strip that provides access to and away from the building and also provides parking spaces for the building. Two driveways provide ingress and egress to the asphalt strip. At the time that plaintiffs purchased the property in November 1998, the asphalt strip was owned by the City of Tigard. The city eventually agreed to vacate the asphalt strip in October 1999. Plaintiffs ownership then included the building and all of the area in front of the building, up to the public sidewalk.
At the time that plaintiffs purchased the property, it was leased to Michael and Colleen Leach, who used the property to operate a locksmith business, a sports card and comic shop, and a U-Haul sales office. From 1994 until June 30, 1999, when the lease terminated, the Leaches were also the local ticketing agents for defendant Greyhound Lines, Inc. Greyhound had been providing bus service to Tigard for 25 years and, rather than have a permanent bus stop, it had used a variety of agents and bus stops along and near Main Street. While the Leaches were Greyhound‘s ticketing agents, their business property was essentially Greyhound‘s local bus station. Passengers bought tickets inside the building and were given general information from the Leaches regarding the buses, and an area was provided inside the building for passengers to sit while awaiting buses. Passengers received assistance from the Leaches in tagging their luggage and boarded buses in front of the Leaches’ property. Shortly after the Leaches became Greyhound‘s ticketing
When plaintiffs took possession of their property in July 1999, they intended to turn the property into an antique store. However, they discovered that, despite the termination of the Leaches’ lease, Greyhound was still using the public areas directly in front of their building as bus stops. Buses stopped at the “cut out” or drove onto the asphalt strip nine to ten times a day, loading and unloading passengers, luggage, and freight. Passengers loitered on the asphalt strip or on the sidewalk in front of plaintiff‘s property, leaving garbage on the ground. Greyhound customers and people picking up or dropping off bus customers parked their cars in the parking spaces on the asphalt strip in front of plaintiffs’ building. Buses and cars blocked the driveways to the asphalt strip.
Plaintiffs complained to Bodie Lyon, the area manager for Greyhound, and he agreed to move the bus stop to a gas station off Main Street. For a few weeks, the buses used the gas station as a bus stop, but eventually returned to the front of plaintiffs’ property because Greyhound‘s new ticket agent, defendant Steven Brown, had a business a few doors down from plaintiffs’ property. Brown placed a sign in front of plaintiffs’ property stating: “For tickets and freight, see the In Neon Sign store down the street.” The buses continued to use the “cut out” and the asphalt strip in front of plaintiffs’ property as a bus stop, and sometimes blocked access to plaintiffs’ driveways. When plaintiffs placed a barrier in front of their driveways, some buses drove onto the sidewalk in front of plaintiffs’ property. Bus customers parked on the asphalt strip, sat on the stoop of plaintiffs’ building waiting for buses, and blocked the driveways with their luggage. In January 2000, the City of Tigard moved the bus stop approximately 19 feet from the edge of plaintiffs’ property. Nevertheless, buses continued to block plaintiffs’ driveway and bus customers continued to park in front of the driveways and on the asphalt strip that was, by then, owned by plaintiffs.
In March 2000, after hearing testimony and viewing videotapes and pictures of Greyhound‘s buses and customers on and adjacent to plaintiffs’ property, the trial court granted plaintiffs’ request for a preliminary injunction. The injunction enjoined defendants “from any and all further use of plaintiffs’ premises and adjacent property as a bus station” and compelled Greyhound “to relocate its bus station activities to an area that will not interfere with plaintiffs’ use and enjoyment of the premises until and through trial of this action.”
Five months later, plaintiffs brought a motion for an order of contempt, alleging that defendants had failed to comply with the preliminary injunction order, in that they continued to use plaintiffs’ premises and adjacent property for bus activities. At the contempt hearing, Mrs. Gritzbaugh testified that, although the amount of bus activity had lessened, bus customers continued to park in her driveway and on the asphalt strip, and continued loitering and leaving garbage on her property while waiting for buses. She testified that buses also continued to park in front of their driveway. At the contempt hearing, defendants presented evidence that most buses stopped at the new bus stop several feet from plaintiffs’ property, and argued that they were therefore in compliance with the preliminary injunction. The trial court disagreed with defendants’ understanding of the requirements of the injunction, finding that the order enjoined bus activities “adjacent to” plaintiffs’ property, and the new bus stop adjacent to plaintiffs’ property. The trial court found Greyhound to be in willful contempt of its order, but did not
After the contempt order issued, and prior to trial, plaintiffs amended their complaint to include in their prayer for relief a request for punitive damages. Defendants Greyhound and Brown were ultimately found liable, by a jury, for both trespass and nuisance, and were required to pay economic, noneconomic, and punitive damages to plaintiffs on each claim. The trial court also issued an order permanently enjoining all defendants from “establishing a bus stop or engaging in bus station activities within 175 feet of the plaintiffs’ premises[.]” After the court entered judgment on plaintiffs’ claims, defendants moved for a judgment notwithstanding the verdict (JNOV) on plaintiffs’ nuisance claim, which the court granted. The general judgment, from which defendants appeal and plaintiffs cross-appeal, found defendants Greyhound and Brown liable for trespass, and granted economic, noneconomic, and punitive damages on that claim, and restated the permanent injunction against all defendants.1
On appeal, defendant Greyhound assigns error to the trial court‘s finding that Greyhound was in contempt of the preliminary injunction.
“(2) A corporation is liable for contempt if:
“(a) The conduct constituting contempt is engaged in by an agent of the corporation while acting within the scope of employment and on behalf of the corporation;
“(b) The conduct constituting contempt consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by a court; or
“(c) The conduct constituting contempt is engaged in, authorized, solicited, requested, commanded or knowingly tolerated by the board of directors or by a high managerial agent acting within the scope of employment and on behalf of the corporation.”
“(2) ‘Contempt of court’ means the following acts, done willfully:
“(a) Misconduct in the presence of the court that interferes with a court proceeding or with the administration of justice, or that impairs the respect due the court;
“(b) Disobedience of, resistance to or obstruction of the court‘s authority, process, orders or judgments;
“(c) Refusal as a witness to appear, be sworn or answer a question contrary to an order of the court;
“(d) Refusal to produce a record, document or other object contrary to an order of the court; or
“(e) Violation of a statutory provision that specifically subjects the person to the contempt power of the court.”
With that standard of review in mind, we consider the trial court‘s findings and the evidence in support of those findings. The court found that defendant Greyhound had acted willfully in that it had “intentionally continued to use the adjacent property as a bus station * * * in a manner that interfere[d] with plaintiffs’ use and enjoyment of their premises[.]” That a party acted willfully may be established “by proof that a party had knowledge of a valid court order and failed to comply with the order.” State ex rel Mikkelsen v. Hill, 315 Or 452, 458, 847 P2d 402 (1993). Here, there is sufficient evidence that Greyhound had knowledge of the preliminary injunction, and there is sufficient evidence that Greyhound failed to comply with the injunction. Nevertheless, as Greyhound points out, the evidence also indicates that Lyon and Brown, the only potential agents for Greyhound in this record, had misinterpreted the meaning of the injunction. The preliminary injunction enjoined Greyhound “from any
“The question really in this case is whether Greyhound complied with the preliminary injunction. I‘m satisfied by very clear and convincing evidence that they have not complied and that they are in contempt of court.
“Mr. Brown, on the other hand, I would not find to be in contempt of court because I think he has made a genuine effort to try to educate his customers that they‘re to stay away from the Gritzbaughs’ property. But Greyhound, in my opinion, has not complied with the preliminary injunction.
“The language reads that ‘Greyhound is enjoined from any and all further use of plaintiffs’ premises and adjacent property as a bus station and compelled to relocate its bus station activities to an area that will not interfere with plaintiffs’ use and enjoyment of the premises until and through trial of this action.’ That has not been accomplished.
“And I don‘t - I‘m not personally attacking Mr. Lyon. His interpretation, I think, is probably reasonable in terms of his just general understanding of court proceedings. He‘s not a lawyer and I would not hold him personally in contempt of court in the circumstances of this case, but the corporation admittedly acts through him perhaps and others and has not complied with the preliminary injunction.
“The word adjacent means things like close to or next to or adjoining or contiguous or bordering, and this second bus stop that was worked out even before the preliminary injunction is contiguous and it is bordering and it is close to and it is next to and it is adjoining the plaintiffs’ property. It has not been moved. That‘s a violation. That‘s contempt of court.”
Greyhound argues that the court‘s finding that Greyhound acted intentionally is not legally supportable, in light of the fact that the court found no intentional conduct by Greyhound‘s only potential agents in this case, Lyon and Brown. It argues that under
We agree with defendants that the text and context of
As noted above, the record in this case indicates only two possible agents for Greyhound—Lyon and Brown—and the trial court specifically found that neither of them acted
Plaintiffs also argue that the trial court could have held Greyhound in contempt under
“Greyhound Bus Lines, Inc., Laidlaw, Inc., and Steven Brown are hereby enjoined from any and all further use of plaintiffs’ premises and adjacent property as a bus station and compelled to relocate its bus station activities to an area that will not interfere with plaintiffs’ use and enjoyment of the premises until and through trial of this action.”
Plaintiffs argue that the provisions of the injunction requiring Greyhound to “relocate its bus station activities,” placed an affirmative obligation and duty on Greyhound to relocate its business activities and that its failure to do so brings their conduct within
We disagree with plaintiffs. The language of that portion of the trial court‘s order is not entirely clear. It does provide that Greyhound is to relocate its business. However, unquestionably, the main purpose of the order was to enjoin defendants from using plaintiffs’ property or the property adjacent to plaintiffs as a bus station. If the court had truly intended the relocation language to place an affirmative duty on defendants to move their business activities, that would mean that defendants would potentially have been in contempt if defendants had ceased using plaintiffs’ property and
Furthermore, even assuming that the court order created a duty of affirmative performance, paragraph (2)(b) states that the omission of that duty is “conduct constituting contempt.” In other words, as with paragraph (2)(a), the corporation cannot have violated paragraph (2)(b) unless the omission constituted willful disobedience of the court‘s order. We have said that a corporation can act only through its officers and agents and, further, that a corporation can have knowledge of something only through its officers and agents. See Doe v. Oregon Conference of Seventh-Day Adventists, 199 Or App 319, 326, 111 P3d 791 (2005) (citing State v. Oregon City Elks, 17 Or App 124, 130, 520 P2d 900 (1974), and FDIC v. Smith, 328 Or 420, 429, 980 P2d 141 (1999)). It follows that a corporation cannot willfully disobey a court order unless it does so through its officers and agents. Thus, in light of the fact that this record shows only Lyon and Brown to be potential agents for Greyhound, and the fact that the court specifically found that neither of those potential agents acted intentionally in disobeying the order, there is not substantial evidence that Greyhound willfully disobeyed a duty of affirmative performance under the court order.
Plaintiffs argue alternatively that Greyhound could be found in contempt under
THE GENERAL JUDGMENT
Defendants’ only other assignment of error arises from their appeal of the general judgment in which they were found liable for trespass. Defendants assign error to the trial court‘s allowance of the admission of evidence pertaining to the order of contempt. After the court allowed plaintiffs to amend their complaint to include a prayer for punitive damages, defendants filed a motion in limine seeking an order excluding evidence of the preliminary injunction order and the contempt order, on the basis that such evidence was unfairly prejudicial to defendants. The court ultimately allowed plaintiffs to offer evidence of the preliminary injunction and evidence that a court had found that Greyhound was in willful violation of the injunction. Specifically, the court allowed plaintiffs’ counsel to recite the specific wording of the preliminary injunction and that portion of the contempt order that stated “it is hereby ordered, adjudged and decreed that [Greyhound] is in intentional violation of the [preliminary injunction].” Because we have concluded that the order of contempt was invalid, it follows that the admission of any evidence pertaining to the contempt order was, at the very least, irrelevant to any issue before the jury.
We conclude that this evidence did, in all likelihood, affect the jury‘s result.
“(1) Punitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.”
In this case, the only basis on which plaintiffs could recover punitive damages is by proof of malice on Greyhound‘s part. Plaintiffs offered evidence that a court had ordered Greyhound to cease “any and all further use of plaintiff‘s premises and adjacent property as a bus station” and that the court thereafter had found and judged that Greyhound was “in intentional violation” of the court‘s order.6 That evidence not only spoke directly to the issue of malice, but did so with the added imprimatur of the court. It may be true, as plaintiffs argue, that there was other evidence that supported the contempt court‘s conclusion that Greyhound acted intentionally, but none of the other evidence bore the trial court‘s stamp of approval. Such evidence likely affected the jury‘s determination that defendants had acted with malice. We therefore conclude that the jury award of punitive damages
We next address plaintiffs’ assignments of error on their cross-appeal. Plaintiffs first assign error to the trial court‘s order granting defendants’ motion for JNOV,
The facts regarding the trial court‘s order granting the JNOV are as follows: After the close of evidence, plaintiffs moved for a directed verdict on their nuisance claim. The court denied that motion, and questioned plaintiffs as to whether plaintiffs had sufficient evidence to even support a nuisance claim. After a colloquy between the court and plaintiffs’ counsel about the evidence and plaintiffs’ theory of nuisance, the court stated that it would not enter a judgment in favor of plaintiffs on their claim for nuisance. Plaintiffs requested that the claim nevertheless be given to the jury, in order to protect their record on appeal, and the court agreed. When the jury returned a verdict in favor of plaintiffs on the nuisance claim, defendants moved for a JNOV on that claim, which the court granted. Defendants never moved for a directed verdict before the claims went to the jury.
“A Grounds. When a motion for a directed verdict, made at the close of all the evidence, which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require.
“B Reserving ruling on directed verdict motion. In any case where, in the opinion of the court, a motion for a directed verdict ought to be granted, it may nevertheless, at the request of the adverse party, submit the case to the jury with leave to the moving party to move for judgment in such party‘s favor if the verdict is otherwise than as would have been directed or if the jury cannot agree on a verdict.”
The general rule is that “[t]he refusal of a motion for a directed verdict is a condition precedent to the exercise of the court‘s power to render a judgment n.o.v.” Stark v. Henneman, 250 Or 34, 36, 440 P2d 364 (1968). Plaintiffs argue that defendants failed to make a motion for a directed verdict; therefore, the prerequisite for the court‘s authority to grant a JNOV was not met. Defendants argue that when the court sua sponte raised the issues regarding the sufficiency of plaintiffs’ evidence for their nuisance claim, the substance of a motion for directed verdict was present; therefore, the trial court had authority to grant a JNOV.
We agree with plaintiffs that the plain meaning of
Defendants argue that, regardless of whether the trial court sua sponte raised the directed verdict issue, the purposes of a directed verdict were met, and, therefore, the trial court had authority under
On appeal, contempt order reversed; general judgment on award of punitive damages reversed and remanded with instructions to order new trial on issue of punitive damages with respect to both nuisance and trespass claims; on cross-appeal, general judgment on nuisance claim reversed and remanded; otherwise affirmed.
EDMONDS, P. J., concurring.
I agree with the majority‘s resolution of the issues before us. I write separately because I believe the majority incorrectly applies the language of
“[Defendants] are hereby enjoined from any and all further use of plaintiffs’ premises as a bus station and compelled to relocate its bus station activities to an area that will not interfere with plaintiffs’ use and enjoyment of the premises[.]”
The majority reasons,
“Under the language of the injunction, Greyhound did not have an independent affirmative obligation to relocate its business so long as it ceased business activities on plaintiffs’ property and adjacent property. Thus, defendant‘s alleged contempt could not be based on the failure to follow an affirmative obligation and, accordingly, defendants did not engage in contempt under
ORS 33.025(2)(b) .”
205 Or App at 652.
I disagree with the majority‘s assertion that defendants did not have an obligation under the injunction “to discharge a specific duty of affirmative performance.” In issuing the injunction, the trial court found,
“After July 1, 1999, and repeatedly through the above date of hearing, the defendants have continued to trespass upon and use the premises and adjacent property for loading and unloading of passengers, freight, and luggage, for bus turnaround, passenger parking, waiting, waste disposal, loitering, and other activities incidental to transportation and its common carrier business.”
Based on that finding, Greyhound was charged by the court under the language of the injunction with a specific duty that required an act of affirmative performance on its part, i.e., to move the bus stop from its existing location to a location that was not on plaintiff‘s property or adjacent property. Although it is correct in the abstract that Greyhound could have complied with the provisions of the injunction by ceasing its business activities on plaintiffs’ property and the adjacent property, that is not what occurred. Greyhound merely moved its business location to adjacent property, approximately 19 feet away from plaintiffs’ property. That action put it in violation of the injunction‘s specific duty to affirmatively move its business activities from adjacent property if it continued to do business in the vicinity and potentially put it in contempt of the court‘s injunction. Unlike the majority, I would hold that Greyhound‘s action, based on the above facts, is governed by
The question then becomes whether Greyhound‘s action to relocate its bus stop is subject to the sanction of contempt as defined by statute. As the majority points out, the definition of “contempt of court” in
For purposes of that case law, which now appears to have been codified, a “willful” mental state may be established for purposes of a prima facie case by proving that a party had knowledge of a valid court order and failed to comply with that order. State ex rel Mikkelsen v. Hill, 315 Or 452,
That understanding has relevance to this case in which the trial court found that Greyhound‘s agents believed in good faith that they were in compliance with the injunction when they moved the bus stop from plaintiffs’ premises. In light of those findings, I agree with the majority that, under a sufficiency of the evidence standard of review, there is not substantial evidence to find Greyhound in contempt of court, even though I would hold that its actions violated the provisions of the preliminary judgment. I would only add that