Peter LOWES, Plaintiff-Appellant, v. Amy THOMPSON, fka Amy Lowes, Defendant-Respondent, and OREGON PUBLIC BROADCASTING, an Oregon domestic non-profit corporation, Defendant.
21CV28283; A178568
IN THE COURT OF APPEALS OF THE STATE OF OREGON
March 6, 2024
331 Or App 406 (2024)
Bethany P. Flint, Judge.
No. 160. Argued and submitted November 16, 2023.
Nathan G. Steele argued the cause for respondent. Also on the brief was The Steele Law Firm, P.C.
Before Tookey, Presiding Judge, and Kamins, Judge, and Joyce, Judge.
KAMINS, J.
Reversed and remanded.
KAMINS, J.
Upon their divorce, plaintiff-appellant Lowes and defendant-appellee Thompson entered into a settlement agreement which included a mutual nondisparagement provision. The provision, which was ultimately incorporated into a stipulated judgment approved by the court, provides:
“MUTUAL NON-DISPARAGEMENT. Neither party shall make or knowingly encourage any other person to make any public or private statement, whether written or oral, that disparages, defames, is derogatory about, or misrepresents the other party or one of their business interests.”
(Boldface in original.) Thompson subsequently allegedly made disparaging and derogatory statements about Lowes—the first instance being when she made statements to an Oregon Public Broadcasting (OPB) reporter, which were later published in an article, that Lowes had abused her during their relationship, and the second being when she sent an email containing abuse allegations to Lowes‘s office colleagues at Knightsbridge International Real Estate (Knightsbridge).
Lowes brought this action against Thompson, alleging a claim for breach of contract. In response, Thompson filed a special motion to strike under Oregon‘s anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute challenging Lowes‘s breach of contract claim insofar as it pertained to the statements contained in the OPB article. Thompson also filed a motion to dismiss. The trial court granted both motions, dismissing Lowes‘s complaint. Lowes appeals, raising three assignments of error. We reverse and remand.1
Oregon‘s anti-SLAPP statute protects against claims that are brought “to chill a person‘s participation in public affairs.” Dept. of Human Services v. Lindsey, 324 Or App 312, 315-16, 525 P3d 470 (2023) (internal quotation marks omitted). The anti-SLAPP statute is intended “to provide an inexpensive and quick process by which claims that might infringe on the right to petition and free speech on public issues could be evaluated to determine if they were frivolous.” Page v. Parsons, 249 Or App 445, 461, 277 P3d 609 (2012). The statute “thus provides a mechanism that allows defendants who claim that the litigation against them is a strategic attempt to chill their participation in public affairs to expeditiously obtain dismissal before incurring significant litigation expenses by filing, instead of an answer, a ‘special motion to strike’ the complaint.” Handy v. Lane County, 274 Or App 644, 650-51, 362 P3d 867 (2015), aff‘d in part, rev‘d in part on other grounds, 360 Or 605 (2016) (internal quotation marks omitted).
The filing of a special motion to strike under
We review a trial court‘s grant of a special motion to strike for legal error. Bryant v. Recall for Lowell‘s Future Committee, 286 Or App 691, 692, 400 P3d 980 (2017). In reviewing a trial court‘s ruling on a
At the first step, we address whether Thompson met her burden of making a prima facie showing that the claim against her “arises out of conduct described in
The question here is whether Thompson‘s speech arises out of “conduct in furtherance of the exercise of the constitutional right *** of free speech *** in connection with a public issue or an issue of public interest” and is thus protected by the anti-SLAPP statute.
Here, the basis of Lowes‘s breach of contract claim—as challenged by Thompson‘s special motion to strike—is Thompson‘s alleged statements contained in the OPB article that characterize Lowes as an “abuser.” Those statements, made in connection with what Lowes‘s complaint characterizes as Thompson‘s “‘me too’ political campaign” in the midst of her run for Deschutes County Commissioner, describe how her political opponent accepted a contribution from her “abuser.” Statements made to a news reporter regarding a local political campaign and a broader social movement against sexual violence certainly fall within the scope of
Having concluded that Thompson met her initial burden, we turn to the second step. Typically, the burden would be on Lowes to establish that there exists a probability that he will prevail on the claim by presenting substantial evidence to support a prima facie case. Handy v. Lane County, 360 Or 605, 622-23, 385 P3d 1016 (2016). Thompson contends that Lowes failed to adduce substantial evidence of a breach of contract claim, arguing, in particular, that Lowes failed to produce evidence of causation and damages. Lowes responds that, at most, he only needed to offer unchallenged evidence that Thompson waived the right to make the statements at issue. We agree with Lowes that unchallenged evidence of a waiver of the rights protected by the anti-SLAPP statute can satisfy a plaintiff‘s burden to defeat an anti-SLAPP motion once a defendant has satisfied the burden at the first step.
At its core, Lowes‘s claim against Thompson is based on Thompson‘s alleged violation of the terms of the parties’ contractual relationship. Lowes asserts that Thompson waived her rights—constitutional, statutory, or otherwise—to speak disparagingly about him when she agreed to the nondisparagement provision. Thompson acknowledges that she entered into the nondisparagement provision. She further acknowledges that constitutional and statutory rights protected by anti-SLAPP legislation can be waived, but she insists that the mutual nondisparagement provision does not represent a waiver of her rights.
The general rule in Oregon is that “waivers of constitutional and statutory rights may be expressed through contract terms.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 170, 183, 295 P3d 38 (2013). When the parties contractually agreed not to make disparaging statements, they necessarily waived the rights—constitutional and statutory—to make them, even if those statements would otherwise qualify for those protections.
Accordingly, the parties’ prior contractual agreement not to engage in the very speech that is the subject of the anti-SLAPP motion is sufficient for Lowes to satisfy his burden in response to the special motion to strike. In this case, the trial court concluded that Thompson entered into a contract not to disparage and derogate Lowes and that her
Our conclusion that unchallenged evidence of a waiver of the rights protected by the anti-SLAPP statute is sufficient to defeat an anti-SLAPP motion even if a defendant can satisfy step one of the analysis is consistent with decisions of California courts. See Handy, 360 Or at 623 n 12 (Oregon‘s anti-SLAPP statute was modeled on California‘s, so, when construing our anti-SLAPP statute, “the legislature intended to follow the California cases that existed in 2001,” and California cases decided after 2001 may be cited for their “persuasive value.“). In Navellier v. Sletten, 29 Cal 4th 82, 94, 52 P3d 703 (2002), the California Supreme Court discussed its anti-SLAPP statute, recognizing that a release of protected rights can be sufficient to defeat an anti-SLAPP motion. “[A]s the [anti-SLAPP] statute is designed and as we have construed it, a defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the right to the anti-SLAPP statute‘s protection in the event he or she later breaches that contract.” Id. at 94.
In the present case, Lowes sued Thompson because he believed she had breached a contractual provision preventing either party
In his second assignment of error, Lowes argues that the trial court erred in granting Thompson‘s motion to dismiss the breach of contract claim pursuant to former ORCP 21 A(8) for failure to state a claim. The trial court granted Thompson‘s motion to dismiss Lowes‘s breach of contract claim on the basis that he failed to adequately plead causation and damages.
Former ORCP 21 A(8)—renumbered as
Turning to the merits, “[t]o state a claim for breach of contract, plaintiff must allege the existence of a contract, its relevant terms, plaintiff‘s full performance and lack of breach[,] and defendant‘s breach resulting in damage to plaintiff.” Moyer v. Columbia State Bank, 316 Or App 393, 402, 505 P3d 26 (2021), rev den, 369 Or 705 (2022) (internal quotation marks omitted). “A claim will survive a motion to dismiss if the complaint contains even vague allegations of all material facts.” Id. at 403 (internal quotation marks omitted). Lowes challenges the trial court‘s determination that he did not adequately allege causation or damages.
Lowes contends that the complaint adequately alleged causation and damages because it alleged that (1) Thompson‘s actions caused the specified harm and (2) he suffered financial and reputational harm. Thompson responds that Lowes failed to properly state a breach of contract claim, because he failed to allege causation or damages.4
We agree with Lowes that the allegations of the complaint were sufficient. First, Lowes‘s allegation that the harm identified in his complaint was a “result” of Thompson‘s alleged breach sufficed to adequately allege causation. Lowes named a type and amount of damages that he claimed resulted from Thompson‘s alleged statements. As such, the complaint adequately put Thompson on notice of the causal relationship between particular statements and the loss and damages incurred as a result of those particular statements. See Moyer, 316 Or App at 402 (To state a claim for breach of contract, a plaintiff must allege the “defendant‘s breach resulting in damage to plaintiff.“). Thompson also contends that Lowes failed to properly state a claim for breach of contract, because his complaint did not allege that his harm was the foreseeable consequence of her alleged statements. However, Thompson did not raise that argument below, so we need not reach the merits of that argument.
Second, with respect to damages, the complaint alleges that, as a “direct *** result” of Thompson‘s alleged breaches, Lowes “has suffered irreparable financial and reputational harm in the amount of $1,300,000.00.” Lowes‘s allegation that he is entitled to “$1,300,000.00” for “irreparable financial and reputational harm” is a factual
Reversed and remanded.
Notes
“(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
“*****
“(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 assembly, petition or association or the constitutional right of free speech or freedom of the press in connection with a public issue or an issue of public interest.
“*****
“(4) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.”