- Court: Oregon Court of Appeals
- Area(s) of Law: Civil Procedure
- Date Filed: 05-06-2015
- Case #: A154963
- Judge(s)/Court Below: DeVore, P.J.; Ortega, J., Garrett, J.
- Full Text Opinion
Plaintiff DeHarpport had worked as a homecare worker for the domestic partner of Defendant W.E.J. Following turmoil in the home and an alleged sexual advance by W.E.J., Deharpport resigned and subsequently filed several tort claims, all of which were dismissed on summary judgment. On appeal, the Court rejected without discussion all of Deharpport’s assignments of error on all claims except the claim for wrongful initiation of civil proceedings (the claim). During the alleged sexual advance Deharpport claimed that W.E.J. pinched her nipple, and that she hit him on the arm and told him “not to ever make such sexual contact again or he would be sorry.” After Deharpport had filed suit, W.E.J. petitioned for a restraining order under ORS 124.005 et seq. (the statutes) attesting that plaintiff caused him physical harm when she hit him, and that her accompanying statement was a threat. W.E.J.’s petition was granted, Deharpport moved for a hearing where she denied all allegations, and the trial court set aside the restraining order. Deharpport then filed the claim. In determining whether there was a genuine issue of material fact, the Court noted all the elements for the claim, discussing only the “probable cause” and “malice” elements. The Court held that whether a defendant had probable cause to initiate a proceeding is a question for a court only if the facts are undisputed, but here the parties’ accounts of the events differed – one account supporting the claim, the other not – creating a genuine question of material fact. It also found that W.E.J. had alleged false and derogatory information in his petition, suggesting that he acted with malice, which would support the claim. The Court found that due to those open questions, the trial court erred when it dismissed the claim. Reversed and remanded on [the claim]; otherwise affirmed.