BOWLIN v. BUCHANAN SCHMID LLC ESQ (2026)

In this action for wrongful initiation of a civil proceeding against an attorney and his law firm (attorney), attorney appeals from a limited judgment denying his special motion to strike under Oregon's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes, ORS 31.150 and ORS 31.152. Here, to withstand such a motion, plaintiff was required to present substantial evidence to support a prima facie case, ORS 31.150(4), and attorney argues that the trial court erred in determining that plaintiff met that burden. We agree with the trial court and affirm.

The following facts are not disputed. An Uber passenger (passenger) assaulted his Uber driver (plaintiff), and, in connection with the assault, passenger was charged with various crimes. Nevertheless, attorney, representing passenger, filed a tort action against plaintiff (the underlying proceeding) alleging, in three claims for relief, that plaintiff had battered passenger, defamed him, and intentionally caused him emotional distress. After plaintiff rejected passenger's settlement offers, plaintiff filed counterclaims against passenger (for assault, battery, and intentional infliction of emotional distress), passenger pleaded no contest to a single charge of fourth-degree assault, and, in a stipulated judgment, passenger dismissed his complaint against plaintiff with prejudice and without costs.

Plaintiff then filed this action against attorney, alleging that attorney had wrongfully initiated the underlying proceeding that passenger had dismissed. Attorney responded with a special motion to strike under ORS 31.150(2).

Because it was undisputed that plaintiff's claim arose out of one of the protected activities described in ORS 31.150(2), to defeat attorney's special motion to strike, plaintiff had the burden “to establish that there is a probability that [she] will prevail on the claim by presenting substantial evidence to support a prima facie case.” ORS 31.150(4). To satisfy that burden, plaintiff was required to submit “sufficient evidence from which a reasonable trier of fact could find that the plaintiff met [her] burden of production.” Handy v. Lane County, 360 Or 605, 622-23, 385 P3d 1016 (2016). We review the trial court's decision for legal error, viewing the evidence in the light most favorable to plaintiff. Plotkin v. SAIF, 280 Or App 812, 815, 385 P3d 1167 (2016), rev den, 360 Or 851 (2017).

To establish a prima facie case for wrongful initiation of a civil proceeding (wrongful initiation),¹ plaintiff was required to adduce evidence from which a factfinder could find the following elements:

(1) attorney commenced and prosecuted a judicial proceeding against plaintiff;

(2) that underlying proceeding was terminated in plaintiff's favor;

(3) attorney did not have probable cause to prosecute the underlying proceeding;

(4) attorney acted with malice in initiating the underlying proceeding; and

(5) plaintiff incurred damages.

See Mohabeer v. Farmers Ins. Exchange, 318 Or App 313, 318 n 3, 508 P3d 37, rev den, 370 Or 212 (2022) (setting out elements of a claim for wrongful initiation). On appeal, attorney contends that the evidence adduced by plaintiff was insufficient to demonstrate three of those five requirements. Specifically, attorney contends that the evidence was insufficient to permit a reasonable factfinder to find that (a) attorney lacked probable cause to prosecute the underlying proceeding; (b) attorney acted with malice in initiating the underlying proceeding; and (c) the underlying proceeding terminated in plaintiff's favor.

Before we begin our analysis of the first of those issues, however, we take up a foundational question: whether plaintiff was required to establish that attorney lacked probable cause with respect to each claim that attorney brought against her in the underlying proceeding, or if it was sufficient for her to demonstrate that attorney lacked probable cause with respect to any one of the claims attorney filed.

I. PLAINTIFF NEED NOT DEMONSTRATE LACK OF PROBABLE CAUSE ON ALL CLAIMS

Attorney argues that “[a] litigant has probable cause to initiate a proceeding as long as there is a nonfrivolous basis for initiating the ‘proceeding,’ not any one particular claim.” Attorney argues, as a categorical matter, that if there was probable cause to bring any one of the claims in the underlying proceeding, plaintiff's claim for wrongful initiation must fail.

Plaintiff sees it differently. She contends that “probable cause for one claim does not establish probable cause on all claims” and that the issue of probable cause “must be evaluated claim-by-claim.”

That contested issue appears to be an open question in Oregon, although both this court and the Oregon Supreme Court have rendered decisions that are inconsistent with the categorical rule for which attorney advocates.

In Perry v. Rein, 187 Or App 572, 577, 71 P3d 81 (2003), the plaintiff in the wrongful initiation action had conceded that the defendant had probable cause to assert one of the claims in the underlying proceeding. Nevertheless, we decided that the trial court had erred in granting summary judgment to the defendant. Id. at 583. And, in Gowin v. Heider, 237 Or 266, 386 P2d 1 (1963), adh'd to on reh'g, 237 Or 266, 391 P2d 630 (1964), a malicious prosecution action alleging the wrongful initiation of a criminal case, the Supreme Court decided that the absence of probable cause to bring one among a number of criminal charges was sufficient to support the plaintiff's tort action.² Id. at 281.

In DeLaurentis v. City of New Haven, 220 Conn 225, 597 A2d 807, 821 (1991), the Supreme Court of Connecticut quoted Gowin and applied its reasoning in the civil context, holding that probable cause as to one claim in the underlying civil proceeding did not necessarily defeat a claim for “vexatious suit” (i.e., wrongful initiation) where other claims in the underlying civil proceeding lacked probable cause. Id. at 254-55. In explaining its reasoning, the court concisely observed that “[i]f a civil plaintiff had probable cause to assert one cause of action but joined to that claim ten others that he knew to be groundless, the victim called upon to defend himself against the ten groundless claims would not suffer less because one good claim was included among them.” Id. at 253.

The California Supreme Court is in accord. In Crowley v. Katleman, 8 Cal 4th 666, 676, 881 P2d 1083 (Cal 1994), as modified (Nov 30, 1994), the court considered competing policy interests—i.e., the right to resort to court on the one hand, and providing redress to individuals harmed by abuse of the courts on the other—and explained its view that the balance tips toward providing redress to individuals when civil claims are groundless and brought with malice:³

“[U]ntrammeled access to the courts promotes social peace by providing the citizenry with an alternative to potentially dangerous self-help methods of redressing private grievances. But it is not an unmixed blessing: many of our courts are burdened by overcrowded dockets and long delays, and all litigation exacts both public and private costs. We are willing as a society to incur those burdens and costs when the litigation is well founded or, even when ultimately unsuccessful, was at least initiated with probable cause and without malice. In those circumstances the balance tips in favor of the policy of encouraging judicial access. That policy becomes counterproductive, however, when it operates to promote litigation that is groundless and motivated by malice; such litigation has no place in our judicial system, and we are therefore unwilling to bear its costs. After careful consideration, we see no reason to reach a different result when the litigation in question is the assertion of baseless and malicious grounds of liability in a single lawsuit: in both instances the balance tips in favor of the policy of making whole the individuals harmed by such abuse of our courts.”

8 Cal 4th at 694.

Other state courts take the opposing view. See Perryman v. Vill. of Saranac Lake, 41 AD3d 1080, 1082, 839 NYS2d 290 (NY App Div 2007) (“[I]nasmuch as the defendants had probable cause to assert some of their causes of action, the plaintiffs could not maintain a malicious prosecution claim.” (Internal quotation marks omitted; emphasis in original.)); Heberlie v. Harriman Oil Co., LLC, 497 SW3d 886, 890 (Mo Ct App 2016) (to satisfy the “lack of probable cause” element, “the plaintiff must show a lack of probable cause for each claim”). And, attorney argues, so does the Restatement (Third) of Torts, which provides that, to assert an action for wrongful initiation, a plaintiff “ordinarily” must show “that the entire original proceeding was unsupported by probable cause.” Restatement (Third) of Torts: Liab. for Econ. Harm § 25 comment f (2020). The Restatement explains that that general rule “may be justified by observing that once a civil suit is brought for good cause, the burden on the defendant is substantial and is increased only marginally by the addition of other claims that are not as well founded.” Id. But the Restatement also recognizes that the general rule may have exceptions, noting that, in “an extreme case, * * * a court may reach a different conclusion, as when the supported and unsupported claims were unrelated, or the supported claim was minor and appears to have been an excuse to add other claims brought without foundation and for an improper purpose.”

For the following reasons, we reject attorney's argument for a categorical rule that, if there is probable cause for one claim in the underlying proceeding, a claim for wrongful initiation will not lie even if there is not probable cause for one or more other claims in the underlying proceeding and they are brought with malice.⁴

First, as noted, in Oregon, in an action for malicious prosecution, a plaintiff need not show that the prosecutor brought the entire underlying proceeding without probable cause. See Gowin, 237 Or at 281. And, in Oregon, a “[w]rongful initiation of a civil proceeding is the civil counterpart to a malicious prosecution action.” Erlandson v. Pullen, 45 Or App 467, 471, 608 P2d 1169 (1980). See also Alvarez v. Retail Credit Ass'n, 234 Or 555, 259, 381 P2d 499 (1963) (describing wrongful initiation claim as “wrongfully prosecut[ing] a civil action”). Second, although we agree that, in some cases, as the Restatement says, “once a civil suit is brought for good cause, the burden on the defendant is substantial and is increased only marginally by the addition of other claims that are not as well founded,” that proposition does not hold true in all cases. As the court in Crowley observed, the burden of litigating claims depends on “such diverse factors as how many grounds are asserted, how different are the facts that must be proved to support and defeat them, how extensive is the discovery necessary to develop those facts, how many witnesses and documents are required to make that proof—even, indeed, how thoroughly the parties prepare their case and how vigorously they present and oppose it at trial.” 8 Cal 4th at 694.

Ultimately, with deference to Oregon precedent and for the reasons stated in Crowley, we reject attorney's proposed categorical rule and conclude that having probable cause for a single claim of many in the underlying proceeding does not necessarily defeat a subsequent claim for wrongful initiation. We recognize that there may be circumstances in which a claim brought with probable cause and a claim brought without probable cause are so closely related that the viability of the action must be determined as a whole. See, e.g., DeLaurentis, 220 Conn at 255-56 (considering in a civil case whether certain “charges” that lacked probable cause were “logically severable” from those that had probable cause in determining the viability of a “vexatious suit” claim). But we need not consider that issue here. In this case, we consider only the categorical argument that attorney makes, and, for the reasons given, we reject that argument.

Having so concluded, we turn to the first of the claims against plaintiff in the underlying proceeding— the claim against plaintiff for battery—and the question whether plaintiff adduced evidence from which a reasonable trier of fact could find that attorney wrongfully initiated that claim. As noted, attorney argues that plaintiff's evidence was insufficient to establish three elements of wrongful initiation, and we begin with the requirement that attorney lacked probable cause to bring the battery claim.

II. PLAINTIFF MET HER BURDEN TO DEMONSTRATE THAT ATTORNEY LACKED PROBABLE CAUSE FOR BATTERY CLAIM

On appeal, attorney contends that plaintiff did not adduce sufficient evidence of lack of probable cause to bring a battery claim against her on behalf of passenger for two distinct reasons: (a) attorney submitted a declaration that, in attorney's view, should be deemed to establish probable cause as a matter of law; and (b) in all events, plaintiff's evidence does not permit a reasonable inference that attorney lacked probable cause. We consider each of those contentions in turn.

A. Attorney's declaration does not establish probable cause as a matter of law.

In support of his special motion to strike, attorney proffered a declaration stating that he “believed that there were valid factual and legal bases” to bring the claims against plaintiff and that his belief was, in part, “[b]ased upon the representations of [his] client.” Attorney contends that those statements must be taken as true, and that, as a matter of law, they established that attorney acted with probable cause. Attorney asserts that that conclusion is necessary to protect the sanctity of the attorney-client relationship and access to the courts. Attorney's argument is that lawyers who initiate civil proceedings based on the representations of their clients must be able to defend against claims for wrongful initiation without revealing the substance of those representations or the steps taken to evaluate the veracity of their clients’ representations. Thus, attorney submits, lawyers who testify that they determined, based on the representations of their clients, that there was a nonfrivolous basis for initiating the proceeding, must be protected against an action for wrongful initiation even if they had reason to believe that the representations of their clients were false. Attorney contends that, in this case, based solely on his declaration, the trial court was required to conclude that he had probable cause to file passenger's claim against plaintiff for battery and, consequently, to grant his special motion to strike.

In support of that position, attorney invokes the absolute privilege that attorneys have for statements made in the course of, or incident to, judicial or quasi-judicial proceedings and asks us to infer from the existence of that privilege that a declaration like the one that attorney filed in this case defeats a claim for wrongful initiation. Previously, however, we rejected the contention that that “absolute privilege” provides attorneys with immunity from suit for wrongful initiation. Mantia v. Hansen, 190 Or App 412, 417, 79 P3d 404 (2003). In Mantia, we explained that that “absolute privilege” is based on a public policy of “ ‘securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.’ ” Id. at 418 (quoting Restatement (Second) of Torts § 586 comment a (1977)). And we said that although one might conclude that that privilege would bar any claim against a lawyer based on the prosecution of judicial or quasi-judicial proceedings, such a conclusion would be incorrect. Id. at 419-20. We explained that a claim for wrongful initiation is a well-established exception to that principle, and for good reason:

“Given the very nature of the ‘wrongful initiation’ cause of action, absolute privilege is inapposite. If a plaintiff can show that, in representing a client in a judicial or quasi-judicial proceeding, an attorney acted ‘maliciously’ and without ‘probable cause’—virtually the obverse of a qualified, good-faith privilege—the attorney is liable for wrongful initiation of a civil proceeding.”

Id. at 420.

Thus, in this case, attorney does not argue that he cannot be sued for wrongful initiation, but his argument—that the court was required to take his averments as true and legally sufficient to defeat plaintiff's claim—is nigh on to an argument for immunity. And, significantly, in wrongful initiation cases against lawyers, to determine the sufficiency of a plaintiff's evidence to show a lack of probable cause, this court looks beyond a lawyer's stated belief that there were factual and legal bases for initiating an action to the relevant facts. See, e.g., Roop v. Parker Northwest Paving, Co., 194 Or App 219, 239-44, 94 P3d 885 (2004). A lawyer has probable cause to bring a civil action only if the lawyer's subjective belief that he or she has a good chance of prevailing is objectively reasonable. Id. at 238. We reject attorney's argument that, in this case, we need not examine plaintiff's evidence but can decide, based on his declaration alone, that he acted with probable cause.

B. Plaintiff's evidence supports a rational inference that attorney lacked probable cause to prosecute a battery claim.

We turn then to the question of whether, in response to attorney's special motion to strike, plaintiff produced evidence that attorney lacked probable cause to bring passenger's battery claim against her—either evidence that attorney did not have a subjective belief that passenger's claim was tenable or that attorney's subjective belief was not objectively reasonable. Id. In this case, plaintiff focused on the latter issue and argued that she had produced prima facie evidence that no reasonable attorney could believe that passenger had a legally viable battery claim against plaintiff.

Viewed in the light most favorable to plaintiff, the evidence that she produced would have allowed for the following findings: Passenger was drunk and, after plaintiff picked him up to drive him home, he passed out in the back seat. After some time, passenger woke up and asked where he was. Plaintiff replied that she was taking him home, and plaintiff asked if he wanted to get out. “No,” passenger said, “I want to hang out with you.” Plaintiff responded that she was just passenger's Uber driver and was just taking him home. “No,” passenger said, “you are not,” and asked why it was taking so long. Plaintiff again said she was taking passenger home. Passenger then grabbed plaintiff by the hair and plaintiff began screaming, begging passenger, repeatedly, to let go of her. When passenger did not, plaintiff tased and maced him, but he still held on to plaintiff. Plaintiff then hit passenger over the head with a club, dragged him out of the car, left him and drove off, calling 911 to report that a man had just attacked her. An officer arrived at the scene and passenger was transported to the hospital, where passenger was confrontational with the officer and nurses.

Among the evidence produced by plaintiff was a recording obtained from her car's dashcam. The dashcam video is dark, and it is difficult to discern the actions of the parties, but what the parties said is audible and, viewed in the light most favorable to plaintiff, plaintiff's fear is palpable. A police officer who wrote the report of the incident described that plaintiff's screaming in the audio as reminding him of videos where officers had been attacked and were fighting for their lives.

In the trial court, plaintiff argued that that evidence established that, even if attorney had a subjective belief that plaintiff had committed battery against passenger, that belief was not objectively reasonable. Plaintiff argued that the only conclusion a reasonable factfinder could reach was that passenger had committed battery against plaintiff and that plaintiff had used reasonable force to resist.

In response to the evidence submitted by plaintiff, attorney did not rest solely on his declaration that, in determining the relevant facts, he had relied on representations by passenger (i.e., his client). He also proffered a photograph showing passenger sitting on the side of the road immediately after the incident with his head split open and blood dripping down his face. And the record contains subsequent photographs showing passenger with a black eye and staples in his head, and statements by plaintiff that, passenger claims, raise questions about plaintiff's credibility.⁵ Attorney argued that that evidence demonstrated that his subjective belief that passenger had a viable claim against passenger was objectively reasonable and the trial court was required to find that attorney had probable cause to file that claim.

The trial court agreed with plaintiff that she had met her burden of production; that is, that she had provided prima facie evidence that attorney had filed the claim against plaintiff for battery of passenger without probable cause. The court found that, prior to filing the complaint, attorney was aware of the existence of the dash cam audio and video recording, contemporaneous statements by plaintiff, passenger, and law enforcement, and photographs taken by law enforcement as part of the criminal investigation of passenger. The court found that, with that information, attorney would have been aware of plaintiff's affirmative defenses to a battery claim, “[n]amely, but not exclusively, self-defense.” The court stated that the evidence of those affirmative defenses “comes compellingly and indisputably from” the dashcam audio and video recording. The court concluded that the truth of those affirmative defenses was not “reasonably assailable” and “defeated the battery claim.” “Accordingly,” the court said, attorney “acted without probable cause when he initiated the lawsuit against [plaintiff] alleging battery.”

On appeal, attorney contends that the trial court erred in concluding that the dashcam recording “indisputably” demonstrates that attorney lacked probable cause. As we understand his position, attorney contends that the facts known to attorney and the reasonable inferences from those facts could persuade a jury that passenger did no more than touch plaintiff to get her attention and that it was plaintiff who was the aggressor, or that plaintiff used an amount of force on passenger that was unreasonable. And, further that, at a minimum, because there is a factual dispute about what happened on the night in question as reflected in the evidence, attorney necessarily had an objectively reasonable basis for filing the battery claim against plaintiff.

To plaintiff's way of thinking, if there was conflicting evidence about whether attorney had a reasonable factual basis for a battery claim against plaintiff, then the existence of that dispute means that she met her burden of production and the trial court was correct to deny passenger's special motion. Plaintiff cites Erlandson and specifically the court's statement:

“What must ultimately be determined is whether defendant had a reasonable basis for his suit, i.e., a reasonable belief that plaintiff defrauded him. Defendant testifies that he did; plaintiff disputes this. Patently, there is a factual issue that must be submitted to the jury if the other elements of the cause of action have been made out.”

45 Or App at 478.

Although that excerpt from Erlandson could be understood in the way that plaintiff contends, a more complete analysis of our decision in Erlandson is necessary to understand its meaning. As relevant here, Erlandson was an action for wrongful initiation by one non-lawyer against another. Id. at 470. In a prior lawsuit one business partner—Troutman—had alleged that another—Erlandson—had devised a scheme to defraud him out of his interest in the landholdings of the partnership, including by making certain specific false and fraudulent misrepresentations. Id. at 476. After that lawsuit had terminated in Erlandson's favor, Erlandson brought an action for wrongful initiation against Troutman, and the trial court entered a directed verdict for Troutman, deciding that there was no evidence that Troutman did not have a reasonable belief that Erlandson had defrauded him. Id. at 474. Erlandson appealed. Id. at 470. We reversed, explaining that Troutman had testified Erlandson had made statements that were false and Erlandson had testified that he had not, creating factual issues about the statements on which the fraud claim was based. We quoted Alvarez, for the “firmly established rule” that the question of probable cause was a question of law and that, if none of the underlying facts were in dispute, the court could decide the case without the intervention of the jury, but that if the underlying facts were in dispute, the case “ ‘must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause.’ ” Erlandson, 45 Or App at 475 (quoting Alvarez, 234 Or at 261).⁶ In the case before us, we said, the factual issue about what had been said and whether the statements that were made were false were facts that should have been submitted to the jury. Id. at 478. It was the jury's role to determine the facts on which the legal determination would rest. Accord DeHarpport v. W. E. J., 270 Or App 681, 685, 348 P3d 1192 (2015) (if the facts about what happened in the underlying incident are disputed, it is up to a jury to decide what occurred); Restatement (Third) of Torts: Liab. for Econ. Harm § 25 comment g (2020) (existence of probable cause is a question for the court, but if that determination depends on factual questions, those questions may be submitted to a jury).

In a wrongful initiation action against a lawyer, the roles of the court and jury are the same. The question whether the lawyer had an objectively reasonable basis to institute the action is ultimately legal question. But, as we explained in Roop, a court may not determine that an attorney had probable cause as a matter of law if there is “evidence from which a jury could find facts or draw inferences requiring the legal conclusion that [the attorney's] subjective belief was not objectively reasonable.” 194 Or App at 241.

In a wrongful initiation action, including a wrongful initiation action against a lawyer, there may be instances in which the underlying facts are undisputed, and, in those instances, a court can decide the legal question of whether those facts establish that the lawyer acted reasonably without additional factfinding. See id. at 244 (trial court did not err in granting directed verdict on plaintiffs’ wrongful initiation claims); Perry, 187 Or App at 581-82 (concluding that “no reasonable lawyer could believe that the facts known to defendants at the time of the filing of the claims, if proven, could result in plaintiff's liability” for a particular claim). But, just as in Erlandson and DeHarpport, that will not always be the circumstance. In a wrongful initiation action against a lawyer, when a jury could find facts or draw inferences that would require the legal conclusion that the lawyer's decision to file the action was not objectively reasonable, then the court cannot rule in favor of the lawyer as matter of law; the existence of an unresolved factual dispute about the underlying events precludes a legal conclusion that the lawyer had probable cause to bring the action.

That said, there are a couple of caveats to keep in mind. First, in considering whether there is a dispute as to the underlying facts, the facts that are relevant are those that are known to the lawyer or, in appropriate circumstances, that could have been learned by investigation. See Roop, 194 Or App at 242 (whether an attorney has an obligation to investigate “depends on the facts of each case, specifically, whether the facts create the appearance that the client may not be providing the attorney with all necessary information”); Restatement (Third) of Torts: Liab. for Econ. Harm § 25 (2020). And secondly, a lawyer may be mistaken about the underlying facts or the law, but, nevertheless, may be reasonable in initiating a claim. Resolution of that question will depend on whether the mistaken belief was reasonable, based on what the lawyer knew or should have known when initiating proceedings. See Restatement (Third) of Torts: Liab. for Econ. Harm § 22 (2020); see also Roop, 194 Or App at 238, 243 (citing Restatement (Second) of Torts § 674 (1977) for the proposition that “the question is not whether the litigant is correct in believing that the claim is tenable, but whether that belief is reasonable” (emphases added)).

Returning, then, to the case at hand, we agree with attorney that the facts about what happened on the night in question are disputed. Having viewed the evidence ourselves, we can understand why the trial court reached a contrary conclusion, but we do not agree that that was the only conclusion a reasonable factfinder could reach when viewing the evidence. However, that does not mean that the trial court erred in denying attorney's special motion to strike. As we have explained, the fact that a jury could see the evidence from attorney's perspective does not mean that the trial court was required to conclude, as a matter of law, that attorney necessarily had probable cause to initiate a battery action against plaintiff. To the contrary, in that circumstance, the trial court was precluded from deciding, as a matter of law, that attorney had probable cause to file the battery claim. The legal question of whether attorney had probable cause depended on the factual question of what happened on the night in question. And, because a jury could find that what happened on the night in question comported with plaintiff's view of events, the trial court could not reach the legal conclusion necessary to grant attorney's motion— that attorney necessarily had probable cause to bring the battery action. Thus, the trial court was correct in deciding that plaintiff submitted sufficient evidence of lack of probable cause to meet her burden of production on that element of plaintiff's claim.

III. PLAINTIFF MET HER BURDEN TO DEMONSTRATE THAT ATTORNEY INITIATED BATTERY CLAIM WITH AN IMPROPER PURPOSE

Attorney's next argument is that plaintiff did not adduce sufficient evidence that, in filing passenger's battery action against attorney, attorney acted with malice. Citing Bachmeier v. Tuttle, 195 Or App 83, 91, 96 P3d 871 (2004), attorney contends that to prove that a lawyer acted with malice, a plaintiff must produce evidence in addition to evidence that the attorney acted without probable cause; that is, a plaintiff must produce independent evidence that the attorney acted with a primary purpose other than securing adjudication of the claim.

Plaintiff accepts that definition of malice and contends that she presented evidence from which a reasonable juror could conclude that attorney filed the battery claim against plaintiff not to adjudicate that claim but to coerce plaintiff into entering into a civil compromise and avoid the state's criminal prosecution of passenger. Plaintiff explains that the “civil compromise doctrine contemplates” situations where a crime victim files a lawsuit against the criminal suspect, alleging injury. If that criminal defendant provides satisfaction for the harm, a court has broad discretion to determine whether to dismiss the criminal charges.⁷ Here, however, plaintiff adduced facts from which a jury could find that the criminal suspect (passenger) filed a nearly $1 million-dollar tort action against the crime victim (plaintiff) and then offered to pay the victim (plaintiff) $25,000 to resolve the action he had filed. After plaintiff did not accept the offer, passenger pleaded no contest to fourth-degree assault for assaulting plaintiff and the other criminal charges against him were dismissed. Passenger then presented plaintiff with a proposed stipulated order of dismissal “without prejudice.” Plaintiff rejected that stipulation but ultimately signed a stipulated order sent to plaintiff by passenger dismissing the civil action with prejudice and without costs. Relying on that evidence, plaintiff contends that attorney filed passenger's battery action not to have the claim adjudicated, but instead, with a purpose to coerce a civil compromise and to use it to obtain dismissal of the criminal charges against passenger.

To analyze the sufficiency of that evidence, we must first take up attorney's argument that two of the letters on which plaintiff relies, as described below, are settlement communications that were inadmissible under OEC 408. The trial court admitted those letters—denying attorney's motion to strike them—and attorney assigns error to that ruling. We therefore begin with that preliminary issue.

The first letter attorney contends is inadmissible is a letter from attorney to the lawyer for plaintiff that attorney sent shortly after filing the complaint. The letter encloses a copy of the complaint and asks whether plaintiff would be interested in discussing resolution of the matter, as well as any counterclaims plaintiff might have.

The second letter attorney contends is inadmissible is a letter attorney sent to the lawyer for plaintiff (a new lawyer replacing the original one) approximately two months after the filing of the complaint. The second letter states that passenger had made a previous offer to pay plaintiff—the person he was suing—the sum of $15,000, conditioned on passenger obtaining a civil compromise resulting in dismissal of the criminal charges against him, and also explains that that offer included “[m]utual releases of the parties’ civil claims against one another” (although plaintiff at that point had no civil claims pending against passenger). In the letter, passenger reiterates that he is interested in having the criminal component of the “ordeal” resolved as soon as possible and increases the offer to pay plaintiff, the defendant in the case, to $25,000, again conditioned on dismissal of the criminal charges and the mutual release of all civil claims.

We review the evidentiary issue that attorney raises for errors of law, State v. Ramirez, 310 Or App 62, 63, 483 P3d 1232 (2021), and we conclude that the trial court did not err in denying attorney's motion to strike the two letters as inadmissible under OEC 408.

“[B]y its plain terms, OEC 408 prohibits evidence of offering a valuable consideration in compromising a disputed claim to prove liability for the claim or its amount and does not require exclusion when the evidence is offered for another purpose.” Butori v. Bosma, 348 Or App 278, 285, 588 P3d 972 (2026) (internal quotation marks and omission omitted). Here, the letters were not offered to prove the “invalidity of [plaintiff's] claim or its amount,” OEC 408, but instead to prove that attorney brought the litigation with “a primary purpose other than that of securing an adjudication of the claim.” See Roop, 194 Or App at 238 (stating that standard for “malice” in wrongful initiation claims). Thus, OEC 408 did not bar their admission.⁸

We proceed, therefore, to attorney's argument that even if the two letters were admissible, plaintiff's evidence is insufficient to demonstrate that attorney filed the civil action against plaintiff for a primary purpose other than resolution of passenger's battery claim. Attorney contends that there is nothing improper about a lawyer's desire to seek a settlement of claims, and the same should go for a desire to seek a civil compromise of a criminal prosecution. According to attorney, two parties may have viable claims against each other and there is nothing untoward about an attorney's desire to seek a global resolution of all claims.

Plaintiff responds that a jury could find that that is not what happened here; that what happened instead was that, knowing he did not have probable cause, attorney filed a nearly $1 million dollar lawsuit against plaintiff and then “used immediate and aggressive tactics” to coerce plaintiff with “a one-two punch of threat and bribe” into seeking an end to the separate issue of the state's criminal prosecution. Plaintiff contends that a reasonable jury could find that attorney acted not to secure damages for attorney's client, but, instead, with a primary purpose other than securing adjudication of the claim.

In support of her position, plaintiff cites Crouter v. United Adjusters, Inc., 259 Or 348, 363-64, 485 P2d 1208 (1971). There, the plaintiff in the underlying action had filed a complaint to collect certain monies from the defendant in the underlying action and, in addition, had filed an affidavit seeking to attach the defendant's wages to provide payment of the amount alleged in the complaint. Id. at 352. After termination of the underlying action, the defendant, now acting as plaintiff, brought an action for wrongful attachment against the plaintiff in the underlying action, now designated as the defendant. Id. at 350-51. That action, whether viewed as an independent common law action or as a common law action for malicious prosecution, required proof of both lack of probable cause and malice, and the court held that the plaintiff had submitted sufficient evidence to permit the case to go to the jury. Id. at 358-59. The court explained that there was not probable cause for attachment and that there were additional independent facts from which a jury could find that the “defendant was more interested in coercing plaintiff into paying that full amount than in securing proper adjudication of the claim on which the attachment was based.” Id. at 362, 364. Therefore, the court concluded, there was sufficient evidence of malice to take that issue to the jury. Id. at 363-64.

In this case, the trial court reached a similar conclusion: It concluded that a reasonable factfinder could determine that the purpose of passenger's suit was to try to “leverage [plaintiff's] cooperation and consent to compromise” to secure “dismiss[al] of the criminal charges against [passenger].” We agree that plaintiff's evidence was sufficient to support both that factual conclusion and the legal conclusion that plaintiff met her burden of production on the element of malice; that is, that attorney filed the battery claim against plaintiff for a primary purpose other than resolution of that claim. See also Restatement (Third) of Torts, Liab. for Econ. Harm § 24 illus. 6 (2020) (in certain circumstances, a party acts with improper purpose when it causes suit to be brought to improve settlement position in separate litigation).

IV. PLAINTIFF MET HER BURDEN TO DEMONSTRATE THAT ACTION WAS TERMINATED FOR LACK OF MERIT

Attorney's final argument is that plaintiff cannot show that the underlying proceeding was terminated in her favor. As noted, plaintiff stipulated to dismissal of the underlying proceeding “with prejudice” and “without costs.” Attorney recognizes that a voluntary dismissal may demonstrate that an action was terminated in a defendant's favor, but he argues that the defendant must show that the dismissal resulted from the plaintiff's recognition that the action lacked merit and not from a settlement agreement. Attorney argues that, as a matter of law, when a defendant agrees to the dismissal of the underlying proceeding as part of a negotiated compromise, the proceeding does not terminate in the defendant's favor. For that proposition, attorney cites Perry v. Rein, 215 Or App 113, 129, 168 P3d 1163 (2007).

Attorney is correct that, in Perry, we said that “[i] t is well established that a termination resulting from a settlement among the parties is not a favorable termination as to any of those parties.” Id. (citing Gowin, 237 Or at 279). At other points in Perry, however, we explained that the question whether the underlying proceeding was terminated in the defendant's favor is a factual one that depends on whether there is evidence from which a jury could find that, in the underlying proceeding, the plaintiff dismissed claims against the defendant “in the belief that the claims lacked merit.” Id. at 127. We said that the issue of “favorable termination” is not well-suited to summary judgment because the motivations for dismissing a complaint are often multi-factored and can involve competing interests. Id. at 128. And we declined to adopt a “hard and fast rule” that whenever claims against a defendant are dismissed as a required condition of settlement, the dismissal does not constitute a termination in the defendant's favor. Id. at 130. We explained that such a rule would not be “consistent with the fact-specific inquiry that Oregon courts use to determine whether a voluntary dismissal is a termination in the plaintiff's favor.” Id. We further explained that, under Oregon law, “even if a settlement requires dismissal, the dismissal still may be favorable to the plaintiff [in the wrongful initiation proceeding]—i.e., reflect adversely on the merits of the [underlying] action—if the defendant [in the wrongful initiation proceeding] also believed that the claims were meritless when it dismissed them.” Id.

This case is factually different from Perry. There, the underlying proceeding was terminated as a result of a settlement to which the plaintiff in the wrongful initiation proceeding (the defendant in the underlying proceeding) was not a party. Id. at 129. The plaintiff in the underlying proceeding had filed claims against multiple defendants and in an agreement with some of those defendants agreed to dismiss its claims against the particular defendant that later asserted a claim of wrongful initiation of that proceeding. Id. at 120. That particular defendant did not pay anything toward the settlement but, despite the fact that dismissal of that defendant was required rather than voluntary, we concluded that the question of whether the proceeding was terminated in the particular defendant's favor was a question for the jury. Id. at 120, 130.

So too here. In the underlying proceeding, plaintiff agreed to passenger's dismissal of his claims against plaintiff but did not pay anything toward the settlement. Plaintiff did agree that the dismissal would be “without costs,” but passenger agreed that the dismissal would be “with prejudice,” knowing that passenger was still subject to plaintiff's counterclaims against him including plaintiff's claim for costs in connection with those counterclaims. In that circumstance, a jury could infer that passenger believed that his claims against plaintiff were meritless. Accordingly, we conclude that the trial court did not err in deciding that plaintiff presented sufficient evidence to meet her burden of production on the element of termination in her favor.

V. CONCLUSION

In summary, we conclude that plaintiff adduced sufficient evidence of the three contested elements of her claim for wrongful initiation to establish a prima facie case. We therefore conclude that the trial court did not err in denying defendant's special motion to strike.

Affirmed.

FOOTNOTES

1.   The tort “wrongful initiation of a civil proceeding” is also called “wrongful use of a civil proceeding.” E.g., Perry v. Rein, 187 Or App 572, 577-78, 71 P3d 81 (2003) (using “wrongful use of a civil proceeding” and “wrongful initiation of a civil proceeding” interchangeably). Although plaintiff's complaint styles the claim as one for “wrongful use,” rather than one for “wrongful initiation,” we use “wrongful initiation” in this opinion, both because it appears to be the more common formulation in our case law and because, in our view, it better expresses the nature of the claim.

2.   On that issue, the United States Supreme Court is in accord. In Chiaverini v. City of Napoleon, Ohio, 602 US 556, 144 S Ct 1745, 219 L Ed 2d 262 (2024), the Court discussed common-law actions for malicious criminal prosecution and said that, in those actions, the plaintiff must “show that an official initiated a charge without probable cause,” but the plaintiff “did not have to show that every charge brought against him lacked an adequate basis.” Id. at 557 (emphasis in original). The Court followed that reasoning in reversing the Sixth Circuit's categorical rule barring a Fourth Amendment malicious prosecution claim if any charge is valid and holding that, “the bringing of one valid charge in a criminal proceeding should not categorically preclude a claim based on the Fourth Amendment.” Id. at 563.

3.   A leading treatise describes the competing policy interests underlying the permissible scope of wrongful initiation claims as “protecting the right to resort to court, analogous to, if not grounded in, the First Amendment's right to petition government” and the recognition that “wrongful civil suits can destroy a livelihood, devastate a business, or chill debate on public issues.” Dan B. Dobbs, et al., Wrongful Civil Litigation and Tactics, The Law of Torts § 592 (2026 ed).

4.   We also reject both parties’ arguments asking us to decide the question before us based on the phrasing that our courts have used to describe the elements of a wrongful initiation claim. For example, attorney notes that in Alvarez v. Retail Credit Ass'n, 234 Or 255, 259-60, 381 P2d 499 (1963), the Oregon Supreme Court phrased the requirement of lack of probable cause as the “absence of probable cause to prosecute the action,” while plaintiff notes that, in that same case, the court described the malice element as “the existence of a primary purpose other than that of securing an adjudication of the claim.” (Emphases added.) In those and other cases, our courts were not deciding the question now before us, and we do not consider their phrasing of the elements as particularly helpful to its resolution.

5.   Attorney did not disclose what passenger had told him about what happened on the night in question.

6.   The “firmly established rule” quoted above from Erlandson is consistent with subsequent case law from this court. See, e.g., DeHarpport v. W. E. J., 270 Or App 681, 685, 348 P3d 1192 (2015) (“Whether a defendant has probable cause to initiate a proceeding is a question of law for the court only if the facts or inferences are undisputed. If the facts are disputed, then a jury must resolve those disputed facts, and the court must instruct the jury on what facts constitute probable cause for the plaintiff's claim.”).But we both emphasize and caution that, notwithstanding the seeming breadth of the statement in Erlandson and similar statements in other cases, there is another possible procedure trial courts may use in Oregon when ruling on “probable cause” when the facts are in dispute.As explained in Gustafson v. Payless Drug Stores, 269 Or 354, 357-58, 525 P2d 118 (1974), “[a]nother possible procedure [in determining whether probable cause exists] is to settle the factual disputes by having the jury answer special interrogatories,” then “the trial court would decide whether the plaintiff had probable cause based upon the facts found by the jury in answer to the interrogatories.” Id. at 358. That approach may have some advantages over the approach described in Erlandson, as “instructing on the issue of probable cause is very difficult when the jury can find a number of different fact combinations.” Id. at 357.

7.   See ORS 135.705 (“If the person injured acknowledges in writing, at any time before trial on an accusatory instrument for the crime, that the person has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, enter a judgment dismissing the accusatory instrument.”).

8.   In arguing the letters were inadmissible, attorney cites Charles Alan Wright and Kenneth W. Graham, Jr., 23 Federal Practice and Procedure § 5308, 244 (1980), for the proposition that “where in an action for abuse of process, the present plaintiff uses evidence of an offer by the present defendant to settle the prior action for a pittance to show that the defendant had brought the prior action in bad faith, the jury must make an inference as to the offeror's belief in the invalidity of his claim in order to reach the desired conclusion.”One difficulty with attorney's reliance on that statement from Federal Practice and Procedure is that, here, as explained, attorney was not offering to settle the case for “a pittance,” but offering to pay plaintiff to have passenger's claims dismissed, conditioned on the court accepting a civil compromise in a separate criminal case. For that reason, this case is not akin to the scenario described in the section of Federal Practice and Procedure pointed to by attorney. Further, to the extent we were to look to federal law and the federal court's interpretation of the Federal Rule of Evidence's corollary to OEC 408, there is ample support for the result we reach concerning the trial court's ruling on the admissibility of the letters. See, e.g., Wine & Canvas Development, LLC v. Muylle, 868 F3d 534, 536 (7th Cir 2017) (statements made during settlement discussions admissible to show plaintiffs’ “improper intent and ulterior motive in filing their lawsuit for the purpose of proving abuse of process counterclaim”); United States v. Peed, 714 F2d 7, 9 (4th Cir 1983) (communication not barred by Federal Rule of Evidence 408 where communication at issue was “an attempt to avoid criminal prosecution, not as an effort to resolve a civil claim”).

WALTERS, S. J.