Preview:

FILED: July 3, 2002
IN THE COURT OF APPEALS OF THE STATE OF OREGON
PORTLAND TRAILER & EQUIPMENT, INC.,
an Oregon corporation;
and TOM BEASON,

Appellants,

v.
A-1 FREEMAN MOVING & STORAGE, INC.,

an Oklahoma corporation; and ROB F. ROBERTSON, Respondents.
9805-03819; A113256 Appeal from Circuit Court, Multnomah County. Henry Kantor, Judge. Argued and submitted March 25, 2002. Frances Baker argued the cause for appellants. On the brief were Roger A. Lenneberg and Sussman Shank LLP. David C. Landis argued the cause and filed the brief for respondent Rob F. Robertson. No appearance for respondent A-1 Freeman Moving & Storage, Inc. Before Landau, Presiding Judge, and Brewer and Schuman, Judges. BREWER, J. Affirmed. BREWER, J. Plaintiffs, Portland Trailer & Equipment, Inc. and Tom Beason (collectively, Portland Trailer), appeal from the trial
court's grant of summary judgment in favor of defendants, A-1 Freeman Moving & Storage, Inc. (Freeman), and Rob Robertson on Portland Trailer's claim for wrongful initiation of a civil proceeding. (1) Portland Trailer contends that the trial court erred in determining that the underlying action--which was dismissed without prejudice--was not terminated in Portland Trailer's favor. We review to determine whether defendants were entitled to judgment as a matter of law. ORCP 47 C; Volt Services Group v. Adecco Employment Services, 178 Or App 121, 125, 35 P3d 329 (2001), rev den 333 Or 567 (2002). We affirm. On November 21, 1995, Freeman, represented by its attorney, Robertson, filed a civil action (the underlying action) in United States District Court for the Western District of Oklahoma against five defendants, including Portland Trailer.
On February 13, 1997, pursuant to a local court rule, the court in the underlying action ordered the parties to participate in mandatory arbitration. On May 23, the arbitrator entered an award in favor of Portland Trailer and against Freeman. (2) On June 23, Freeman filed a demand for a trial de novo on its claims against Portland Trailer and,
pursuant to local court rules, the arbitration award was sealed. On September 12, Freeman filed a motion to dismiss its claims against Portland Trailer without prejudice, subject to a proposed condition for payment of costs if Freeman subsequently commenced a second action against Portland Trailer on the dismissed claims.
On September 24, the court in the underlying action entered the following order:
"(3) [The Court] GRANTS [Freeman's] Motion to Dismiss filed on September 12, 1997, and DISMISSES all claims filed by [Freeman] against [Portland Trailer] subject to the conditions
"(a) that such dismissal is without prejudice;
"(b) that each party shall bear its own attorney's fees to the extent such fees were incurred in connection with [Freeman's] claims against Portland Trailer * * *;
"(c) that should [Freeman] refile any of the claims set forth in the first amended complaint against Portland Trailer, * * * [Freeman] shall pay, as a prerequisite to litigating any such claim against a defendant, all reasonable attorney's fees incurred by that defendant in the instant litigation; and
"(d) that [Freeman] shall pay pursuant to [FRCP 54(d)(1)], and title 28, section 1920 of the United States Code all costs incurred by Portland Trailer * * * in defending this action, e.g., Cantrell v. International Brotherhood of Electrical Workers, 69 F3d 456 (10th Cir 1995)[.]" (Footnotes omitted.)
Pursuant to paragraph (d) of that order, Freeman tendered to Portland Trailer payment of the latter's costs associated with defending against the underlying action. There is no evidence in the record that Freeman has refiled its claims against Portland Trailer.
In 1998, Portland Trailer filed this action for wrongful initiation of a civil proceeding against Freeman and Robertson. The trial court granted Freeman's and Robertson's motions to dismiss for lack of personal jurisdiction. Portland Trailer appealed, and we reversed and remanded. Portland Trailer & Equipment v. A-1 Freeman Moving, 166 Or App 651, 5 P3d 604, modified on recons 168 Or App 654, 4 P3d 741 (2000). On remand, all parties moved for summary judgment. The only issue before the trial court on summary judgment was whether the underlying action was terminated in favor of Portland Trailer. The trial court granted Freeman's and Robertson's motions for summary judgment "on the ground that the pleadings, exhibits and affidavits on file show that as a matter of law the underlying action was not terminated in [Portland Trailer's] favor." This appeal followed.
On appeal, Portland Trailer argues that, regardless of whether the parties' dispute is governed by Oregon or Oklahoma law, the circumstances demonstrate that the underlying action terminated in its favor, because either (1) it prevailed in arbitration, or (2) the dismissal order awarded it costs and imposed conditions on Freeman's ability to refile its claims,
thereby changing the positions of the parties from those they previously occupied. Robertson (3) responds that the dismissal of the underlying action was not a termination favorable to Portland Trailer under either Oregon or Oklahoma law but, if the court holds that there is a conflict between the laws of the two forums, Oklahoma law should apply. Robertson further responds that the fact that Portland Trailer prevailed in arbitration is of no significance because the arbitration award remains sealed and without effect, and the award of costs and the imposition of refiling conditions in the dismissal order do not constitute a termination favorable to Portland Trailer.
Under Oregon law, the elements of a claim for wrongful initiation of a civil proceeding are:
"(1) The commencement and prosecution by the defendant of a judicial proceeding against the plaintiff;
"(2) The termination of the proceeding in the plaintiff's favor;
"(3) The absence of probable cause to prosecute the action;
"(4) The existence of malice or as is sometimes stated, the existence of a primary purpose other than that of securing an adjudication of the claim; and
"(5) Damages." Alvarez v. Retail Credit Ass'n, 234 Or 255, 259-60, 381 P2d 499 (1963) (citations omitted).
See also Wroten v. Lenske, 114 Or App 305, 308, 835 P2d 931, rev den 314 Or 574 (1992). The requirement that the underlying proceeding was terminated in the plaintiff's favor is an element of a wrongful initiation of civil proceedings action under Oklahoma law as well. Glasgow v. Fox, 757 P2d 836, 838 (Okla 1988).
The only question before us is whether the underlying action was terminated in Portland Trailer's favor as a matter of law. Because the answer to that question may depend on whether we apply Oklahoma or Oregon law, we first determine which forum's substantive law applies. At the first step of analysis, we determine whether there is a material difference between Oregon substantive law and the law of Oklahoma. If there is no material difference, there is a "false conflict," and Oregon law governs. Erwin v. Thomas, 264 Or 454, 457-62, 506 P2d 494 (1973); Angelini v. Delaney, 156 Or App 293, 300, 966 P2d 223 (1998), rev den 328 Or 594 (1999).
Controlling decisional authority clearly establishes that Portland Trailer was not a prevailing party in the underlying action under Oklahoma law, because that action was dismissed without prejudice.
"For there to be a prevailing party in an action requires that the underlying proceeding not have been
dismissed without prejudice. Dismissal without prejudice is not a termination favorable to the malicious

Download A113256.pdf

Oregon Law