text:
    SHRINERS HOSPITALS FOR CHILDREN, a Colorado Nonprofit Corporation; and Oregon Scottish Rite Clinics, an Oregon Nonprofit Corporation, Petitioners on Review, v. Michael A. COX, as Personal Representative for Mack A. Woods, Deceased, Respondent on Review, and Bennett, Hartman, Morris & Kaplan, LLP and Tyler Smith & Associates, P.C., Respondents on Review.
    SC S064390
    Supreme Court of Oregon.
    Argued and submitted September 13, 2018. February 7, 2019
    Richard L. Grant, Richard L. Grant, P.C., Portland, argued the cause and filed the brief for petitioners on review.
    George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review Michael A. Cox.
    No appearance on behalf of respondents on review Bennett, Hartman, Morris & Kaplan, LLP, and Tyler Smith & Associates, P.C.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore.
    KISTLER, S. J.
    The primary question in this case is whether defendant is judicially estopped from setting aside a default judgment that, he contends, resulted from improper service. The trial court found that, even if service were improper, defendant knew about the default judgment shortly after it was entered and used it to his benefit in two judicial proceedings. The trial court ruled that, in those circumstances, defendant waited too long to set it aside. The Court of Appeals reached a different conclusion. It reasoned that the default judgment was void; as a result, neither the passage of time nor other circumstances barred defendant from seeking to set the judgment aside. Shriners Hospitals for Children v. Woods , 280 Or.App. 127, 380 P.3d 999 (2016). We allowed Shriners' petition for review to consider that question. Because we conclude that, in the circumstances of this case, defendant was judicially estopped from setting the default judgment aside, we reverse the Court of Appeals decision and remand this case to the Court of Appeals.
    Shriners brought this action against defendant to collect on a note and obtained a default judgment against him. Shriners' argument that defendant is judicially estopped from moving to set aside the default judgment is based on Shriners' claim that defendant used the default judgment to his advantage in two other judicial proceedings: a dissolution action between defendant and his wife and a malpractice action that defendant brought against one of his lawyers in the dissolution proceeding. In setting out the facts, we first describe the note that defendant signed and the initial phase of the dissolution proceeding. We then describe Shriners' action to collect the note and the default judgment, which occurred midway through the dissolution proceeding. We turn next to defendant's use of the default judgment in the dissolution proceeding and the later malpractice action. Finally, we describe Shriners' efforts to garnish the proceeds of the malpractice action and defendant's motion to set aside the default judgment.
    During defendant's marriage, his wife borrowed $ 137,000 from her aunt and used the money to improve property that she and defendant had purchased. On December 7, 2001, defendant signed a note to repay the loan, which was unsecured. In 2002, defendant and his wife filed an action to dissolve their marriage. That action resulted in a dissolution judgment in 2004, a successful appeal by defendant, and a remand for a new trial in 2006. Woods and Woods , 207 Or.App. 452, 142 P.3d 1072 (2006). After the trial court entered the 2004 dissolution judgment but before the Court of Appeals remanded the case for a new trial, defendant's wife sold the marital home. She spent the money that she received from the sale and did not use it to repay the loan to her aunt. Woods v. Hill , 248 Or.App. 514, 518, 273 P.3d 354 (2012).
    By November 2007, the dissolution proceeding had been remanded for a new trial, defendant had discharged the first attorney (Hill) who had represented him in the dissolution proceeding, and he had hired a new attorney (Renshaw) to represent him in the dissolution proceeding on remand. Also, by November 2007, defendant's note had been assigned to Shriners, the note was approximately five years overdue, and Shriners filed this action to collect the principal and interest due under the note. Shriners filed an affidavit of service in the collection action. In the affidavit, the process server stated under penalty of perjury that he had personally served a copy of the summons and complaint on defendant on November 28, 2007. Defendant did not appear in the collection action, and the trial court entered a default judgment against defendant on January 3, 2008. The default judgment established the amount that defendant owed on the note and the rate of interest and awarded Shriners court costs and attorney fees. Additionally, interest began accruing on the attorney fees and court costs at a higher rate than on the amount owed under the note.
    On January 3, 2008, the day that the default judgment was entered, defendant's attorney (Renshaw) called Shriners' attorney (Grant), who was not able to take Renshaw's call. Grant returned Renshaw's call on Monday, January 7, 2008, but was not able to reach him. Later that day, Grant received a voice mail message personally from defendant. On January 10, 2008, a week after the default judgment was entered, Grant mailed a demand for payment of the judgment with interrogatories to defendant, return receipt requested, and copied Renshaw with those documents. On January 11, defendant personally signed the return receipt showing that he had received the demand to pay the judgment and the interrogatories.
    On January 14, 2008, Grant and Renshaw discussed "the payment of the judgment as well as the inability of the defendant Mack Woods to set aside the Default Order and Judgment for lack of a meritorious defense." Later that month, Renshaw asked Grant to postpone enforcing the judgment until the remand hearing on the dissolution proceeding had concluded.
    At the conclusion of the remand hearing, the trial court entered a supplemental judgment in the dissolution proceeding. The supplemental judgment divided the proceeds of the sale of the marital property equally between defendant and his wife. The supplemental judgment also treated the debt represented by defendant's note and reduced to a judgment in Shriners' collection action as a marital debt. Specifically, the supplemental judgment divided the debt, "all accrued pre- and post-judgment interest and the award of attorney fees and costs in the money award" equally between defendant and his wife. The supplemental judgment provided that each party's obligation under the default judgment would be reduced by the proceeds from the sale of another parcel of land that they owned.
    Defendant was unhappy with the first attorney (Hill) who had represented him in the dissolution proceeding.
    Defendant retained a third and later a fourth attorney, who pursued a malpractice action against Hill for, among other things, failing to file a notice of lis pendens during the dissolution proceeding. Defendant took the position in the malpractice action that, if Hill had filed a notice of lis pendens , defendant's wife would not have been able to sell the marital home without the proceeds of the sale being used to pay off defendant's note to the aunt. See Woods v. Hill , 248 Or.App. at 519, 273 P.3d 354.
    A jury found that Hill had committed malpractice, and defendant used the default judgment, plus accrued interest, to establish his damages. Specifically, defendant's attorney told the jury that "our calculation on the Shriner's judgment was damages of $ 221,000-$ 221,106.97," and he argued that the jury should hold Hill responsible for those and other damages. The jury agreed. It found that defendant's damages were $ 274,000, which were reduced to $ 180,840 as a result of defendant's comparative negligence.
    In 2013, Shriners sought to garnish the proceeds from the malpractice action to satisfy its default judgment against defendant. In response, defendant moved to set aside the default judgment under ORCP 71 B(1). In support of his motion, defendant submitted a sworn declaration in which he stated that he had been out of town on November 28, 2007, and, as a result, had not been personally served with a copy of the summons and complaint on that date. His declaration then stated: "At the time I believed that Mr. Renshaw [his attorney in the dissolution proceeding] was handling the Shriners' situation and would take care of the matter for me. I did not find out that he had done nothing on the case until much later discovering that a default judgment had been entered against me."
    Given those facts, defendant argued that the default judgment was void and unenforceable. Alternatively, he argued that, if the court did not set aside the default judgment, equity required that the judgment be modified to correspond with the dissolution judgment, which had divided the obligations established by the default judgment equally between defendant and his former wife.
    In considering defendant's motion to set aside the default judgment, the trial court did not resolve whether defendant had, in fact, been personally served with the summons and complaint on November 28, 2007. It did find, however, that defendant "was personally aware of this case in January, 2008." Specifically, the trial court found:
    "Defendant Woods' ORCP 71 B motions do not depend on whether he was personally served with the Summons and Complaint on November 28, 2007. He was personally aware of this case in January, 2008. It was an issue in both his divorce case and his malpractice case. Woods' motion now is not reasonably timely."
    Having denied defendant's motion to set aside the default judgment, the trial court ordered that the proceeds from the malpractice action be used to satisfy the default judgment.
    On defendant's appeal, the Court of Appeals vacated the trial court's order and remanded the case to the trial court for further proceedings. The Court of Appeals reasoned that, if defendant had not been personally served, the default judgment was "void." The court noted that, although ORCP 71(B)(1) provides that motions to set aside some judgments must be made within a "reasonable time," " 'there is no timeliness requirement for moving to set aside a void judgment.' "
    Shriners Hospitals for Children , 280 Or.App. at 132, 380 P.3d 999 (quoting Estate of Selmar A. Hutchins v. Fargo , 188 Or.App. 462, 468, 72 P.3d 638 (2003) ). It accordingly rejected the trial court's conclusion that defendant had not moved to set aside the default judgment within a reasonable time. The Court of Appeals also concluded that judicial estoppel did not bar defendant from moving to set aside the judgment under ORCP 71. Id. at 133-34, 380 P.3d 999. It remanded the case for the trial court to resolve whether defendant had, in fact, been personally served on November 28, 2007.
    On review, Shriners does not argue that defendant failed to move to set the default judgment aside within a reasonable time, and we do not consider that issue. Rather, the primary issue, as the parties frame it, is whether defendant can be judicially estopped from moving to set aside a default judgment entered without proper service. As we understand defendant's argument on that issue, it rests on the following syllogism. This court has held that a judgment entered by a court that lacks subject matter jurisdiction is "void" and that a party to the judgment cannot be judicially estopped from setting it aside. Defendant notes that a judgment entered as a result of improper service also has been described as "void." It follows, defendant concludes, that a party to a judgment entered as a result of improper service cannot be judicially estopped from setting aside that judgment either.
    In our view, defendant places too much significance on the generic label "void" without asking whether the reasons for attaching that label to a judgment matter. As explained below, the reasons for holding a judgment entered without subject matter jurisdiction void lead to the conclusion that a party will not be judicially estopped from later seeking to set it aside. However, as courts and commentators have recognized, a different conclusion follows when a judgment is void because service was improper. In those circumstances, they have recognized that a party may be estopped. We first explain why the various reasons that a judgment may be labeled as void will affect whether a party may be estopped from setting it aside. We then explain why we conclude that, in light of the trial court's factual findings, defendant was estopped from setting aside the default judgment in this case.

      Garrett, J., did not participate in the consideration or decision of this case.

      Woods, the defendant in this case, died after the Court of Appeals issued its decision. Cox, the personal representative of Woods' estate, was substituted for him on review. Throughout this opinion, we use the term "defendant" to refer to Woods.

      Having concluded that the default judgment was unenforceable, the Court of Appeals did not reach either defendant's second assignment of error or his former attorneys' cross-assignments of error regarding various lien issues. Shriners Hospitals for Children , 280 Or.App. at 129, 380 P.3d 999. We remand this case to the Court of Appeals so that it can consider those issues.

      The note recited that the principal and interest would be paid on or before December 7, 2002.

      The 2004 dissolution judgment had given the marital home solely to defendant's wife and had required her to repay the loan to her aunt.

      The record does not disclose the contents of defendant's voice mail.

      Although the record makes clear that defendant relied on the judgment to establish damages in the malpractice action, there is at least some ambiguity as to what he calculated the value of the judgment to be for that purpose. We use $ 221,106.97-the lowest figure that defendant's attorney cited-because the important point is that he used the judgment to establish his damages, not the precise amount of damages that defendant claimed.

      Based on the facts set out above, the trial court could have found that defendant knew about the default judgment on January 11, 2008, when he received the demand for payment and interrogatories from Shriners' attorney.

   A judgment may be void because the court that entered it lacked subject matter jurisdiction. Garner v. Garner , 182 Or. 549, 561-62, 189 P.2d 397 (1948). A party cannot stipulate or consent to subject matter jurisdiction, id. , and the Oregon courts accordingly have recognized that generally a party cannot be judicially estopped from later seeking to set aside a judgment entered without subject matter jurisdiction, Carey v. Lincoln Loan Co. , 342 Or. 530, 534 n. 2, 157 P.3d 775 (2007). As the court observed in Carey , "[j]udicial estoppel generally does not prevent a party to a case from challenging a court's subject matter jurisdiction, even after the party has invoked or consented to jurisdiction of the court." Id. ; see also Wink v. Marshall , 237 Or. 589, 592, 392 P.2d 768 (1964) (same); Garner , 182 Or. at 561-62, 189 P.2d 397 (same).

This court also has described a judgment entered either without personal jurisdiction or as a result of improper service as void. However, unlike subject matter jurisdiction, the defenses of lack of personal jurisdiction and insufficient or improper service will be "waived" if a defendant does not assert them in a timely fashion. See ORCP 21 G(1) (providing that a defendant will waive those defenses if they are not raised either in an ORCP 21 motion or in the first responsive pleading); Decker v. Wiman , 288 Or. 687, 693, 607 P.2d 1370 (1980) (explaining that the defense of lack of personal jurisdiction can be waived by a voluntary appearance or by consent). That is, a defendant may consent to a court's adjudication of his or her obligations and rights even though the court otherwise lacked personal jurisdiction over the defendant or service was improper or insufficient. See id.

For that reason, even though courts have sometimes described a default judgment entered without personal jurisdiction or proper service as "void," they have long recognized that a party may be estopped from seeking to set the judgment aside. Restatement (Second) of Judgments § 66 comment a (1982). As the Restatement explains:

"A judgment purporting to determine the rights of the parties, though lacking effect of its own force because of invalidity, can * * * be adopted as a consensual resolution of the parties' rights. The party who obtained the judgment expresses his [or her] assent to the terms by obtaining the judgment; the other party expresses adherence by some act following the judgment in which the judgment is recognized as determinative."

Id.

Given that rationale, the authors of the Restatement distilled the following rule from the cases:

"Relief from a default judgment on the ground that the judgment is invalid will be denied if
"(1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and
"(2) Granting the relief would impair another person's substantial interest of reliance on the judgment."

Restatement § 66. Sometimes, a party will manifest his or her acceptance of a judgment expressly. Id. comment b. More commonly, a party will manifest his or her intention to treat the judgment as valid either by accepting its benefits or by not denying the validity of the judgment when placed in a position where he or she would be expected to do so. Id. As the comment makes clear, however, "in the absence of such circumstances, silence is not a manifestation of assent." Id.

Consistently with the Restatement , courts have held that manifesting an intention to treat the judgment as valid, coupled with reliance, will bar a party from arguing that the judgment is invalid due to improper or insufficient service. See, e.g. , Price v. Price , 169 N.C.App. 187, 609 S.E.2d 450 (2005) (party judicially estopped from challenging a prior judgment because the service of process was insufficient); MacDougall v. Kutina , 798 So.2d 30, 32 (Fla. Dist. Ct. App. 2001) (party estopped from challenging dissolution judgment on grounds of defective service of process when he later stated at another hearing that he had no problem with paying rehabilitative alimony); City of Newark v. (497) Block 1854 , 244 N.J. Super. 402, 409-12, 582 A.2d 1006 (N.J. Super. Ct. App. Div. 1990) (An owner who did not receive notice of a suit foreclosing its equity of redemption was estopped from challenging the validity of the resulting judgment; the owner's "abstention from any challenge [to the judgment after learning of it] and his successful but aborted 1986 bid for the properties 'manifested an intent to treat the judgment as valid.' ").

To be sure, courts have recognized that delay in contesting the validity of a judgment is not enough, standing alone, to manifest an intention to treat the judgment as valid. Johnson v. State, Dept. of Rev. ex rel. Lamontagne , 973 So.2d 1236 (Fla. Dist. Ct. App. 2008) ; Sprang v. Petersen Lumber, Inc. , 165 Ariz. 257, 798 P.2d 395 (Ariz. Ct. App. 1990). However, they have also recognized that, if a party has manifested such an intention, the party may be estopped from seeking to set the judgment aside for insufficiency of service. Johnson , 973 So.2d at 1239 ; Sprang , 165 Ariz. at 265, 798 P.2d 395.

With those principles in mind, we turn to the facts of this case. We note, as an initial matter, that defendant's attorney (Renshaw) expressly accepted the validity of the default judgment in his discussions with Shriners' attorney (Grant). The trial court reasonably could have found on this record that, when Renshaw spoke with Grant on January 14, 2008, Renshaw acknowledged "the inability of the defendant Mack Woods to set aside the Default Order and Judgment for lack of a meritorious defense." Renshaw was defendant's agent and, as such, had authority to bind defendant in discussing matters within his authority-i.e. , in discussing Shriners' claims against defendant.

Beyond that, defendant affirmatively treated the default judgment as valid when he used it to establish the damages that, he argued, flowed from his former lawyer's malpractice. Defendant did not merely acknowledge the default judgment's existence; he implicitly acknowledged its validity when he asked the jury to rely on it to determine the extent to which his former attorney's failure to file a notice of lis pendens had damaged him. Defendant cannot assert that the judgment is an accurate measure of some or all of the damages that he sustained as a result of a third party's actions without implicitly acknowledging its validity. Nor can it be said that the default judgment was merely a proxy for defendant's obligations under the note. Not only did the default judgment conclusively establish those obligations (and remove the possibility of any defenses to the enforcement of the note), but it imposed additional obligations that were only inchoate in the note. The judgment included attorney fees, court costs, and pre- and post-judgment interest. To put the point simply, defendant's obligations under the note were repayment of $ 137,000 plus accrued interest; by defendant's own calculation in the malpractice action, his obligation under the judgment exceeded $ 221,000.

Defendant's use of the default judgment in the malpractice action is difficult to distinguish from the first illustration in section 66 of the Restatement . That illustration states:

"A brings an action against B for settlement of accounts and division of property jointly owned by them. Inadequate notice is given to B. Judgment by default is entered, of which B becomes aware. In a subsequent negotiation with C, B describes his interest in the property by reference to the terms of the judgment. This may be regarded as a sufficient manifestation by B of an intention to treat the division of property by the judgment as binding on him."

Restatement § 66 illustration 1. Using the default judgment to establish some or all the damages that a third party owes him was a stronger manifestation of defendant's intention to treat the judgment as binding on him than B's description of his property in the illustration.

We also conclude that granting defendant relief in this case "would impair another person's substantial interest of reliance on the judgment." Restatement § 66(2). As noted above, the parties have framed the issue in this case as one of judicial estoppel. Specifically, Shriners has argued, and we agree, that (1) defendant received a benefit in his malpractice claim (he recovered damages that he measured by reference to the default judgment); (2) this proceeding is a different proceeding from the malpractice action; and (3) defendant has taken inconsistent positions in the two proceedings. See Hampton Tree Farms, Inc. v. Jewett , 320 Or. 599, 611, 892 P.2d 683 (1995) (listing those elements of judicial estoppel). We explained in Hampton Tree Farms that judicial estoppel protects " 'the judiciary, as an institution, from the perversion of judicial machinery.' " Id. at 609, 892 P.2d 683 (quoting Edwards v. Aetna Life Ins. Co. , 690 F.2d 595, 599 (6th Cir. 1982) ). It is the court's reliance that the doctrine protects. In this case, the trial court and the jury in the malpractice action (to say nothing of Hill and Hill's insurer) relied on defendant's implicit assertion that the default judgment was a valid measure of the damages that flowed from Hill's malpractice. Defendant can hardly rely on the default judgment in the malpractice action to establish that he owes Shriners the principal amount of the loan, pre- and post-judgment interest, and the attorney fees that Shriners incurred in suing on the note and then seek to have the default judgment set aside to avoid paying Shriners the very funds that he told the court, the jury, and Hill he owed Shriners.

We summarize our conclusions briefly. Other courts have recognized that judicial estoppel can prevent a party from setting aside a default judgment entered without proper service. We agree with those decisions. We also conclude that, in the circumstances of this case, judicial estoppel prevents defendant from seeking to set aside the default judgment. We accordingly reverse the Court of Appeals decision and remand the case to the Court of Appeals so that it can consider the issues that it did not decide initially.

The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.

      ORCP 21 G(1) does not use the term "waive" in a strict sense. As used in that rule, the term does not refer to the intentional relinquishment of a known right. Rather, it describes the effect of failing to assert the defense (whether known or unknown) of lack of personal jurisdiction or insufficient or improper service in a timely fashion.

      Personal jurisdiction and service are related but separate concepts. Figueroa v. BNSF Railway Co. , 361 Or. 142, 146, 390 P.3d 1019 (2017). The former refers to a court's authority to require a defendant to appear and to respond to charges. The latter is the means by which a court exercises that authority over a defendant. Id.

      The cases following the Restatement generally have involved defective service, as this case does. In light of this court's decisions stating that a party will not be judicially estopped from moving to set aside a judgment for lack of subject matter jurisdiction, we limit our holding to the issue this case presents: whether a party can be judicially estopped from setting aside a judgment that is invalid because of defective service.

      Although Renshaw had been retained to represent defendant in the dissolution proceeding, defendant stated in his sworn declaration that he "believed that Mr. Renshaw was handling the Shriners' situation." Defendant thus manifested his intention to have Renshaw represent him both in the dissolution proceeding and in connection with Shriners' efforts to collect on the note.

      Defendant argues on review that he did not take inconsistent positions in the malpractice action and in moving to set aside the judgment aside. We reach a different conclusion. In the malpractice action, defendant held out the default judgment as a valid measure of the damages that he sought to recover from a third party; in the motion to set aside the default judgment, defendant has argued that the default judgment is void and unenforceable.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    Tim REEVES, Eric Saub, and Greg Burnett, as the Libertarian Party of Oregon; David Terry, M. Carling, and Richard Burke, as Members of the Libertarian Party of Oregon, Plaintiffs-Appellants Cross-Respondents, and Carla Pealer, as the Libertarian Party of Oregon, Plaintiff Cross-Respondent, v. Wes WAGNER, Harry Joe Tabor, Mark Vetanen, Bruce Knight, Jeff Weston, Jim Karlock, and Richard Skyba, as Individuals; and Libertarian Party of Oregon, Defendants-Respondents Cross-Appellants, and Joseph Shelley, Defendant.
    A155618
    Court of Appeals of Oregon.
    Submitted September 10, 2015. December 12, 2018
    Tyler Smith and Tyler Smith & Associates, P.C. filed the briefs for appellants-cross-respondents and cross-respondent.
    Colin G. Andries, Andries Law Offices; James E. Leuenberger, and James E. Leuenberger PC filed the briefs for respondents-cross-appellants Wes Wagner, Harry Joe Tabor, Mark Vetanen, Bruce Knight, Jeff Weston, Jim Karlock, and Richard Skyba.
    C. Robert Steringer, Brett Applegate, and Harrang Long Gary Rudnick P.C. filed the briefs for respondent-cross-appellant Libertarian Party of Oregon.
    James L. Buchal and Murphy & Buchal LLP filed the brief amici curiae for Oregon Republican Party.
    Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.
   ARMSTRONG, P. J.

Plaintiffs appeal a judgment dismissing their complaint against defendants for declaratory and injunctive relief and breach of fiduciary duty, which arose out of a dispute over control of the Libertarian Party of Oregon (LPO). The trial court granted defendants' motion for summary judgment on the ground, among others, that the claims are not justiciable under the Uniform Declaratory Judgments Act, ORS chapter 28 (UDJA), because other, nonjudicial, remedies are available. As explained below, we conclude for reasons different from the trial court that the claims are not justiciable under the UDJA and therefore affirm on appeal. We reject without discussion defendants' contention on cross-appeal that the trial court erred in rejecting their request for an award of attorney fees under ORS 20.105 and therefore affirm on cross-appeal.

The facts as alleged in the second amended complaint and drawn from the record are largely undisputed. At the March 2010 annual LPO convention, defendant Wagner was elected LPO vice-chairperson. On March, 12, 2011, the LPO met for its 2011 annual convention, with 20 party members in attendance. The convention fell short of a quorum as defined by the then-existing, 2009 LPO bylaws. On Wagner's motion, the convention was adjourned and continued to May 21, 2011. Shortly after the March 2011 meeting, then LPO state chairperson Weston resigned. Under the 2009 bylaws, upon the resignation of a state chairperson, the vice-chairperson "shall serve as State Chairperson until the close of the next annual convention." Thus, Wagner, as vice-chairperson, assumed the office of state chairperson. Wagner then called a meeting of the "State Committee" (a committee established by the LPO constitution) for March 31, 2011. A majority of those attending the March 31, 2011, meeting adopted a new constitution and bylaws, with new quorum and membership requirements. At the same meeting, the State Committee appointed a board of directors, which subsequently appointed defendants as officers, with Wagner as state chairperson. At a meeting of April 19, 2011, the newly created board of directors met and changed the rescheduled May 21, 2011, annual convention into a social event at a different location. The newly adopted bylaws were subsequently ratified by the membership by ballot and filed with the Secretary of State.

Plaintiffs are registered Libertarian electors. Only one plaintiff, Terry, was present at the March 31, 2011, meeting called by Wagner, and he objected to the proceedings. Plaintiffs instead attended the rescheduled May 21, 2011, annual convention, which defendants did not attend and which, like the March 12, 2011, convention, failed to achieve a quorum. The rescheduled annual convention was adjourned sine die .

Under the 2009 bylaws, officers' terms begin immediately upon the close of an annual convention. But, because of the lack of a quorum, no officers were elected at the May 21, 2011, annual convention. The 2009 bylaws provide that the State Committee can meet for the purpose of filling vacant officer positions. Immediately after the convention, plaintiffs, as the putative remaining State Committee members, held a State Committee meeting, where the members present elected plaintiffs as officers, with Reeves as state chairperson. In late May 2011, the Secretary of State rejected plaintiffs' attempt to register their elected officers, because the Secretary had previously recognized Wagner as LPO chairperson.

Since May 2011, the Wagner group and the Reeves group have vied for leadership and control of the LPO. The question underlying their dispute is whether the 2009 bylaws or the bylaws adopted at the March 31, 2011, meeting govern the activities of the LPO.

The 2009 bylaws require advance notice to LPO members of proposed amendments to either the LPO constitution or bylaws:

"Advance Notification. Proposed amendments to this Constitution and Bylaws shall be entered on the agenda of the next annual convention to be held in an odd numbered year unless the State Committee authorizes a special convention to be held sooner for that purpose. The Secretary shall make texts of such approved amendments available to each LPO member via written or electronic means, as each member prefers, no fewer than forty five days prior to the opening of said convention."

The 2009 bylaws further provide:

"These Bylaws may be amended by a two-thirds majority vote of all votes cast by registered delegates present at an LPO convention."

As alleged in the second amended complaint, the bylaws adopted on March 31, 2011, did not comply with those requirements. On the face of the record, there are no factual disputes on that question. The question presented on appeal is whether a court has authority under the UDJA to make that determination.

The Libertarian Party is a "minor political party." See ORS 248.006 (defining "major political party"); ORS 248.008 (defining a "minor political party"). Under ORS 248.009(1), a minor political party is required to file with the Secretary of State "a copy of its organizational documents establishing its process for nominating candidates for public office." The minor political party also is required to file copies of "any changes to its organizational documents relating to nomination of candidates for public office not later than 30 days after the date any changes were made." Additionally, not later than 10 days after any selection is made, a minor political party is required to file with the Secretary of State's "filing officer" "a list of any officers selected by the party." ORS 248.009(2).

As noted, after the March 31, 2011, meeting, the Wagner group filed the newly adopted bylaws with the Secretary of State. The Wagner group also filed a list of officers showing Wagner as LPO chairperson. The Reeves group then attempted to file its own list of officers, which the Secretary rejected.

A minor political party candidate for office seeking to be placed on the ballot based on a party nomination must be named in a certificate of nomination signed by an officer of the party and filed with the secretary. ORS 249.720(3) ; ORS 249.722. In anticipation of an upcoming election, the Reeves group sought to resolve the conflict concerning the leadership of the LPO by asking the Secretary to determine who should be recognized as the leaders of the LPO for purposes of nominating candidates for office. The Secretary's Elections Director responded by adhering to the earlier decision to list Wagner as LPO chairperson for the purpose of accepting nominations of LPO candidates. In a letter of September 29, 2011, the Elections Director explained:

"We understand that the Judicial Committee of the National Libertarian Party has left it up to this office to decide which of your competing groups will be recognized by the state as the leadership of the Libertarian Party of Oregon.
"While we have attempted to stay out of your internal party processes, it is clear that we will have to make a decision so that the voters affiliated with the Libertarian Party of Oregon will be able to have a candidate for the Special Election in the 1st Congressional District.
"We currently recognize, and will continue to recognize Wes Wagner as Chair of the Libertarian Party of Oregon . We will accept the Libertarian nominee for the 1st Congressional District Special Election from Mr. Wagner."

(Emphasis added.)

Plaintiffs did not pursue an appeal or judicial review of the Elections Director's determination. Instead, on January 16, 2012, plaintiffs brought this declaratory judgment action in the Clackamas County Circuit Court against the LPO, Wagner and the other putative Wagner group officers, seeking a judicial resolution to the conflict. In their second amended complaint, plaintiffs sought a declaration that the bylaws adopted by the Wagner group at the March 31, 2011, meeting are null and void and that the 2009 bylaws remain in effect, and that Reeves and the officers appointed by the State Committee on May 21, 2011, are the current officers of the LPO. Plaintiffs also brought a claim under ORS 65.084, seeking to enjoin defendants from functioning as officers of the LPO, an accounting of LPO funds expended since March 2011, and a return of LPO property. For their third claim, plaintiffs alleged that defendants had breached their duty to the corporation. Their prayer sought to leave the record open to allow the LPO to pursue supplementary relief under ORS 28.080. See Dry Canyon Farms v. U.S. National Bank of Oregon , 96 Or. App. 190, 194, 772 P.2d 1343 (1989) (a party is not precluded from seeking supplemental relief in the form of damages by its failure to claim such damages in the original declaratory proceeding). Defendants filed a motion to dismiss the complaint, contending that plaintiffs' exclusive remedy was to seek judicial review of the Elections Director's September 29, 2011, determination. The trial court denied the motion to dismiss.

Plaintiffs then filed a motion for partial summary judgment, seeking a declaration that the 2009 bylaws are the governing bylaws for the LPO. They conceded at the hearing before the trial court that their other claims would follow from that determination, with the exception of a possible subsequent request for supplemental relief.

Defendants, in turn, filed a motion for summary judgment contending, among other arguments, that the trial court lacked authority to resolve the LPO's internal disputes. The trial court granted defendants' motion, reasoning that the matter is not justiciable or that, in the exercise of discretion, the court would not interfere in the internal disputes of a political organization. See ORS 28.060 (describing circumstances under which court may exercise discretion to refuse to enter a declaratory judgment); Brooks v. Dierker , 275 Or. 619, 624, 552 P.2d 533 (1976) (court should decline to exercise its jurisdiction under ORS 28.010 if some more appropriate remedy exists). In view of its ruling on defendants' motion, the trial court denied plaintiffs' motion for partial summary judgment.

On appeal, plaintiffs contend that the trial court erred in dismissing their claims as nonjusticiable and in denying their motion for partial summary judgment. Defendants seek an affirmance of the trial court's dismissal of the complaint, asserting, among other grounds, that the Elections Director's determination that the Wagner group constitutes the leadership of the LPO was an "order" subject to review under the state Administrative Procedures Act (APA), and that judicial review provided the exclusive method to challenge the order. For the reasons explained here, we agree with defendants.

Under the UDJA, ORS 28.010 to 28.160, "[c]ourts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." Under ORS 28.020, an "interested" person may obtain a declaration of a "deed, will, written contract or other writing constituting a contract," and a person whose "rights, status or other legal relations are affected" may obtain a declaration of "a constitution, statute, municipal charter, ordinance, contract or franchise." As we recently held in Courter v. City of Portland , 286 Or. App. 39, 53, 398 P.3d 936 (2017), the court's authority under the UDJA is broad. ORS 28.120 provides:

"This chapter is declared to be remedial. The purpose of this chapter is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered."

Initially, we reject defendants' contention that plaintiffs lacked standing to bring their claims. Plaintiffs, as registered Libertarians in Oregon, have an interest in the operational documents of the LPO, which puts forth Libertarian candidates for office. In addition, plaintiffs' status as registered Libertarians is affected by the governing documents of the LPO. We therefore conclude that plaintiffs would have standing to bring a declaratory judgment claim. See Morgan v. Sisters School Dist. No. 6 , 353 Or. 189, 194, 301 P.3d 419 (2013) (to seek relief under the UDJA, a plaintiff must establish that his or her rights, status, or other legal relations are affected by the relevant instrument).

We conclude, further, that bylaws are documents subject to a declaration under the UDJA. See WSB Investments, LLC v. Pronghorn Devel. Co., LLC , 269 Or. App. 342, 356, 344 P.3d 548 (2015) (noting "well-established legal principle" that bylaws of a corporation are a contract between members of the corporation and between the corporation and its members (citing Dentel v. Fidelity Savings & Loan , 273 Or. 31, 33, 539 P.2d 649 (1975) ) ). Plaintiffs' primary contention is that, based on the face of the LPO's organizational documents, the process by which defendants purported to adopt new bylaws was ineffective. The primary issue on appeal is whether a court has authority to address that question.

Although courts have broad authority under the UDJA to provide declaratory relief, a court lacks subject matter jurisdiction under the UDJA if some other remedy is exclusive. Alto v. State Fire Marshal , 319 Or. 382, 395, 876 P.2d 774 (1994). An administrative review process, when available, is the exclusive means of reviewing an agency's action. Wallace v. State ex rel. PERB , 245 Or. App. 16, 26, 263 P.3d 1020 (2011), rev. den. , 352 Or. 342, 288 P.3d 276 (2012). When a dispute involves an agency's action or refusal to act, the APA provides the sole and exclusive means of obtaining judicial review, and an action for declaratory relief is not available. Salibello v. Board of Optometry , 276 Or. App. 363, 368, 367 P.3d 932 (2016) ; see ORS 183.484 (setting forth procedures for judicial review of orders in other than contested cases); Bay River v. Envir. Quality Comm. , 26 Or. App. 717, 720, 554 P.2d 620, rev. den. , 276 Or. 555 (1976) ("The [APA] establishes a comprehensive pattern for the judicial review of administrative decisions. The various APA statutes governing judicial review provide the sole and exclusive methods of obtaining judicial review."). Additionally, a court should decline to exercise its jurisdiction under ORS 28.010 if some more appropriate remedy exists. Brooks , 275 Or. at 624, 552 P.2d 533.

We agree with defendants that plaintiffs' exclusive remedy was to seek judicial review of the Election Director's letter under the APA. The Secretary of State is an "agency" subject to the APA. ORS 183.310(1) ; Ellis v. Roberts , 302 Or. 6, 18, 725 P.2d 886 (1986) (decisions of the Secretary of State under the election laws are orders in other than a contested case); Strombeck v. Secretary of State , 128 Or. App. 142, 145, 874 P.2d 1366, rev. den. , 319 Or. 572, 879 P.2d 1286 (1994) ("The Secretary of State is a state officer, and the statutes governing the office recognize the applicability of the APA."). Additionally, plaintiffs do not dispute that the Elections Director's letter is a "final order" under the APA. See ORS 183.310(6)(b). Under ORS 183.484, a party has 60 days from the date an order in other than a contested case is served within which to file a petition for judicial review of the order. ORS 183.484(2). Plaintiffs did not seek judicial review of the Election Director's order, and the time period to do that has expired.

Plaintiffs contend that their claims are not subject to the APA because the questions on which they seek a declaration are beyond the scope of the Secretary's authority. They note that ORS 248.011 states that, "[e]xcept as required by law, the Secretary of State * * * shall not enforce * * * any * * * rule adopted by a political party," and they reason that the statute prohibits the Secretary from determining which bylaws are in effect. Contrary to plaintiffs' contention, however, for the reasons explained below, we conclude that ORS 248.011 does not prevent the Secretary from construing political party bylaws or organizational documents in the course of determining who should be listed as the officers of a political party for the purpose of nominating candidates.

As the state's chief elections officer, the Secretary of State is responsible for "obtain[ing] and maintain[ing] uniformity in the application, operation and interpretation of the election laws." ORS 246.110. A candidate may be nominated by a minor political party through a certificate of nomination signed by a party officer. ORS 249.720(3). Among the Secretary's responsibilities are the duties to register certificates of nomination, ORS 249.810, and to receive a list of political party officers, ORS 248.009(2). As noted, ORS 248.009(1) requires a minor political party to file with the Secretary "a copy of its organizational documents establishing its process for nominating candidates for public office." The statute further provides that a minor political party "shall nominate candidates for public office only in accordance with the procedures set forth in its organizational documents." In receiving a list of officers from a political party so as to determine who may sign a candidate's certificate of nomination, the Secretary is in a position to determine whether the person signing the certificate became an officer in accordance with the procedures set forth in the party's organizational documents. See Goldstein v. Radakovich , 68 Or. App. 843, 847, 683 P.2d 149, rev. den. , 297 Or. 824, 687 P.2d 797 (1984) (Secretary had duty to investigate complaint that candidate's certificate of nomination was in violation of statutory requirements). That determination, in turn, may depend on the construction of the organizational documents.

Plaintiffs assert that a determination by the Secretary of which organizational documents control would violate ORS 248.011, because it would constitute the "enforcement" of LPO rules. We disagree. ORS 248.011 imposes a prohibition against enforcement of party rules "except as required by law." The Secretary's statutory obligation to receive lists of party officers and certificates of nomination signed by a party officer implicitly includes the authority to determine whether the persons listed are, in fact, officers, and whether the person signing is, in fact, an officer. Additionally, "enforcement" implies compelling a political party to act in accordance with its governing documents or rules. See Webster's Third New Int'l Dictionary 751 (unabridged ed. 2002) (defining "enforcement" as "the compelling of the fulfillment (as of a law or order)"). The Secretary's construction of organizational documents for the purpose of determining whom the Secretary should list as the party's officers does not compel the party to take any action; rather, it satisfies the Secretary's own obligation to receive a list of party officers.

Our understanding of ORS 248.011 is not inconsistent with the legislative history of the statute. The Secretary of State's representatives testified about Senate Bill 183 (1995), enacted as ORS 248.011. Scott Tigh, a manager with the Elections Division, explained that the bill was intended to express "that the Secretary of State or other elections official * * * will not interfere with the administration of the party bylaws and rules." Tape Recording, Senate Committee on Rules and Elections, S.B. 183, May 25, 1995, Tape 82, Side A (statement of Scott Tigh). Colleen Sealock, then Director of the Elections Division, testified:

"The Secretary of State and county clerks have a very limited role in enforcing party rules. The only role it has is where the statutes expressly require that we become involved. This is on behalf of the political parties who believe that it would be inappropriate for a public agency to get involved in internal party affairs and we certainly are in agreement and support that."

Tape Recording, House Committee on Legislative Rules, S.B. 183, June 7, 1995, Tape 127, Side A (statement of Colleen Sealock). That legislative history suggests that the prohibition in ORS 248.011 was intended to prevent the Secretary from interfering in the internal administration of political parties. The Secretary's ability to construe and apply the party's bylaws so as to satisfy the Secretary's obligation to identify persons who are eligible to be listed as officers does not interfere in the party's internal affairs. We therefore reject plaintiffs' contention that ORS 248.011 prevents the Secretary from construing a minor party's organizational documents to fulfill the Secretary's duties under the election laws.

Plaintiffs contend further that their action is not subject to the APA because it does not challenge the Secretary's determination of who are LPO officers; in fact, plaintiffs point out, the Secretary is not named as a party, and plaintiffs agree with the Secretary's determination that this dispute must be left to the courts. It is true that, as drafted, the second amended complaint does not explicitly challenge the Secretary's determination. Rather, the complaint challenges conduct that purported to adopt new LPO bylaws, to select new officers, and to the listing of Wagner as chairperson by the Secretary.

But, in practical effect, the Secretary's determination is being challenged. In presenting conflicting lists of officers to the Secretary, the same parties involved in this declaratory judgment action placed before the Secretary their dispute concerning the leadership of the LPO. Despite initially objecting to resolving internal disputes of political parties, the Secretary in fact resolved the parties' dispute through a letter directed to the parties receiving the Wagner group's list and rejecting the Reeves group's list. It is undisputed that the Secretary thereby issued a determination that was subject to judicial review as an "order." See ORS 183.310(6) (" 'Order' means any agency action expressed orally or in writing directed to a named person or named persons[.]"). The requested declaration seeks a determination that the Reeves group and its officers control the LPO for purposes of elections and would thereby overturn the Secretary's order. Because, as we have explained, the Secretary had authority to construe and apply the LPO's bylaws in resolving the parties' dispute as to whether Wagner was properly listed as LPO chairperson, plaintiffs could have obtained the relief that they seek through a challenge to the Secretary's order. Therefore, plaintiffs' exclusive remedy was under the APA, and the trial court correctly dismissed the complaint.

Affirmed on appeal and on cross-appeal.

      Under the 2007 constitution of the LPO, the "State Committee" is responsible for "the control and management of all affairs, properties, and funds of the LPO, consistent with this Constitution and Bylaws." The 2007 constitution also creates a "Judicial Committee," which "shall be the final body of appeal in all matters requiring interpretation of the Constitution, Bylaws, rules or resolutions of the LPO, subject to the provision that a decision of the Judicial committee may be overruled by a three quarters vote at the next convention." Thus, under the 2009 bylaws, the Judicial Committee is the final arbiter of disputes concerning an interpretation of the bylaws. This opinion does not purport to interpret the 2009 bylaws.

      In the meantime, the national Libertarian Party had recognized the Reeves group for purposes of seating delegates at the party's 2013 national convention.

      In a subsequent affidavit of July 23, 2012, filed with a motion for an expedited trial in this case, the Elections Director averred:
      "August 28, 2012, is the last day that minor political party candidates can submit their certificates of nomination for the November 6, 2012 general election. Resolution of any disputes about who are the legitimate nominees of the Libertarian Party of Oregon needs to be resolved on or prior to that day in order for the Secretary of State to be able to place resulting candidates on the ballot."
      On April 2, 2013, the Elections Director further averred:
      "The Secretary of State's Elections Division has not and will not enforce or adjudicate disputes about political party bylaws. We have told the parties that they have to go to court to adjudicate this matter if there is to be any change because we do not adjudicate this type of dispute."

      We note that, under ORS 246.910(1), plaintiffs could have appealed the Secretary's orders:
      "A person adversely affected by any act or failure to act by the Secretary of State * * * under any election law, or by any order, rule, directive or instruction made by the Secretary of State * * * may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which the order, rule, directive, or instruction was made."
      The remedy provided by ORS 246.910 is "cumulative and does not exclude any other remedy." ORS 246.910(5).

      The 2007 LPO constitution provides:
      "The Judicial committee shall be the final body of appeal in all matters requiring interpretation of the Constitution, Bylaws, rules, or resolutions of the LPO, subject to the provision that a decision of the Judicial committee may be overruled by a three quarters vote at the next convention."

      This is not the first time that a dispute concerning the governance of the LPO has come before a circuit court. In 2006, Wagner filed a writ of mandamus in Washington County Circuit Court, seeking to compel LPO officers to comply with and perform duties imposed on them by the then existing LPO bylaws and state law. After a hearing, the court granted the defendants' motion to dismiss the writ, explaining that the court did not believe that it had authority to compel the Libertarian Party to comply with its own internal rules.

      The court offered several reasons for its conclusion: First, under the terms of the 2007 Constitution and 2009 bylaws, the LPO's "Judicial Committee" is the final arbiter of disputes concerning an interpretation of bylaws.
      The trial court also opined that the United States Supreme Court has held that the First Amendment circumscribes the extent to which courts can resolve intra-political-party disputes. See, e.g. , Cousins v. Wigoda , 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975) (in the absence of a compelling state interest, states lack authority over a party's delegate selection process and the national convention is the proper forum for determining intra-party disputes as to which delegates should be seated).
      The trial court noted, further, that, under ORS 248.011, the Legislative Assembly has enjoined the Secretary of State from enforcing any rules of a political party, indicating a legislative intention that internal disputes of political parties should be resolved internally.
      Finally, the court observed that the national Libertarian Party had and had applied a process for resolution of a portion of the intra-party disputes relating to which group may provide delegates to the national convention. In light of all of those considerations, the court concluded:
      "This matter is either nonjusticiable or, if the court has the power to address the dispute, it also has discretion to stay its hand in light of the existence of other remedies that may lead to resolution of these sensitive matters without the need for the court to intrude upon the inner workings of a political party."

      Defendants contend that the process that they chose to use to replace the 2007 constitution and 2009 bylaws was nonetheless permitted. Defendants note the statement in the 2009 bylaws that the bylaws "may be amended by a two-thirds majority vote of all votes cast at an LPO convention." (Emphasis added.) They contend that the use of the word "may" suggests that the bylaws do not provide the exclusive means of amending or replacing them, and that they may also be amended or replaced in other, undescribed, but statutorily supported ways.
      The 2007 constitution requires the State Committee to manage the affairs of the LPO "consistent with this Constitution and Bylaws." Article XVI of the 2009 bylaws, entitled "Amendment Procedures," describes multiple processes to amend the bylaws. With respect to amendments proposed in advance of an annual convention, Article XVI, section (1), provides that the proposed amendments
      "shall be entered on the agenda of the next annual convention to be held in an odd numbered year unless the State Committee authorizes a special convention to be held sooner for that purpose,"
      and requires that the LPO secretary
      "make the texts of such approved amendments available to each LPO member via written or electronic means, as each member prefers, no fewer than forty-five days prior to the opening of said convention."
      Article XVI, section 2, allows the proposal of bylaw amendments at a convention. Any delegate to a convention "at an odd-numbered year, or to any special convention held to consider the amendments" may propose an amendment of the constitution or bylaws, if such amendment is presented in writing before that convention finishes and if requested to be considered by at least ten percent of the delegates present. Finally, Article XVI, section 3, is entitled "Two Thirds Majority Required" and states: "These Bylaws may be amended by a two-thirds majority vote of all votes cast by registered delegates present at an LPO convention."
      There is no provision in either the 2007 constitution or the 2009 bylaws for the State Committee to amend or replace the bylaws.

      ORS 183.310(6) provides:
      "(a) 'Order' means any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency. 'Order' includes any agency determination or decision issued in connection with a contested case proceeding.
      "* * * * *
      "(b) 'Final order' means final agency action expressed in writing. 'Final order' does not include any tentative or preliminary agency declaration or statement that:
      "(A) Precedes final agency action; or
      "(B) Does not preclude further agency consideration of the subject matter of the statement or declaration."

      In view of our conclusion, we do not address defendants' contention that the First Amendment to the United States Constitution renders plaintiffs' claims nonjusticiable.


author: LAGESEN, J.

text:
    Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants Cross-Respondents, v. Christopher LILES, Defendant-Respondent Cross-Appellant.
    A149982
    Court of Appeals of Oregon.
    Submitted on remand September 9, 2016. December 12, 2018
    Steve C. Baldwin and Watkinson Laird Rubenstein Baldwin & Burgess, P.C., filed the briefs for appellants-cross-respondents.
    Linda K. Williams filed the briefs for respondent-cross-appellant.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Lagesen, Judge.
   LAGESEN, J.

This matter is before us on remand from the Supreme Court. Neumann v. Liles , 358 Or. 706, 369 P.3d 1117 (2016) ( Neumann II ). Plaintiff Neumann, and the wedding venue she operates, plaintiff Dancing Deer Mountain, LLC, sued defendant for defamation (among other claims) based on defendant's negative review of the venue on google.com. On defendant's motion under Oregon's Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes, ORS 31.150 to 31.155, the trial court dismissed the case in its entirety. The first time that matter was before us, we reversed the trial court's judgment insofar as it dismissed plaintiff Neumann's defamation claim, concluding that she had adequately demonstrated that defendant's negative online review of the wedding venue operated by plaintiff was actionable under Oregon case law on defamation. Neumann v. Liles , 261 Or. App. 567, 580-81, 323 P.3d 521 (2014) ( Neumann I ). In so doing, we assumed without deciding that defendant properly raised his motion to dismiss under the anti-SLAPP statutes. Id . at 574-75, 323 P.3d 521. Our disposition of the appeal obviated the need to address defendant's cross-appeal, in which defendant contended that the trial court erred when it did not award him the full amount of attorney fees that he incurred litigating the anti-SLAPP motion.

The Supreme Court then allowed review of our decision "to determine how an actionable statement of fact is distinguished from a constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is made affects that analysis." Neumann II , 358 Or. at 710, 369 P.3d 1117. The Supreme Court ultimately adopted the framework established by the United States Court of Appeals for the Ninth Circuit in Unelko Corp. v. Rooney , 912 F.2d 1049 (9th Cir. 1990), cert. den. , 499 U.S. 961, 111 S.Ct. 1586, 113 L.Ed.2d 650 (1991), for assessing whether a statement published online is entitled to protection under the First Amendment to the United States Constitution. Analyzing defendant's online review under the Unelko framework, the Supreme Court concluded that defendant's review was constitutionally protected by the First Amendment because, when the review was viewed as a whole, a "reasonable factfinder could not conclude that [the] review implies an assertion of objective fact," and because it spoke to a "matter[ ] of public concern." Neumann II , 358 Or. at 722, 369 P.3d 1117. Consequently, the review was not actionable and, contrary to our conclusion, the trial court had properly dismissed plaintiff Neumann's defamation claim. Id . The court then remanded to us "to resolve Neumann's argument that her claim is not subject to the provisions of Oregon's anti-SLAPP statute, and to resolve [defendant's] cross-appeal relating to the amount of attorney fees awarded by the trial court." Id . at 724, 369 P.3d 1117. We turn to that task. For the reasons explained below, we affirm on appeal and reverse and remand on defendant's cross-appeal challenging the trial court's attorney fee award.

The first question before us on remand is whether the anti-SLAPP statutes apply to this action at all. As the Supreme Court explained, we must address that question to determine whether defendant is entitled to recover attorney fees. Id . at 723, 369 P.3d 1117. Even though the court itself declined to address that question in Neumann II , its decision goes a long way toward resolving it.

ORS 31.150(2) identifies the four types of claims to which the anti-SLAPP procedures apply. It provides:

"A special motion to strike may be made under this section against any claim in a civil action that arises out of:
"(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
"(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
"(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 petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."

Defendant contends that all of plaintiffs' claims-all of which undisputedly "arise[ ] out of" defendant's act of posting a negative review on google.com-are claims that "arise[ ] out of" either (1) a "written statement * * * presented * * * in a place open to the public or a public forum in connection with an issue of public interest," ORS 31.150(2)(c), or (2)"other 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," ORS 31.150 (2)(d). Plaintiffs, in response, contend that the anti-SLAPP statutes do not apply. However, as we noted in our original opinion, Neumann I , 261 Or. App. at 573-75, 323 P.3d 521, plaintiffs do not address the text of those provisions at all, let alone develop an argument addressing the pertinent statutory provisions under Oregon's well-established methodology under State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009), and PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993), for construing statutes. Instead, plaintiffs rely primarily on Illinois case law construing the Illinois anti-SLAPP statute-a statute that is written in different terms than Oregon's. See Neumann I , 261 Or. App. at 573-74, 574 n. 4, 323 P.3d 521 (summarizing plaintiffs' arguments).

In view of certain determinations made by the Supreme Court in reaching the conclusion that defendant's review is protected by the First Amendment, we conclude that plaintiffs' claims are subject to the anti-SLAPP procedures under the terms of ORS 31.150(2)(d). The plain text of that provision broadly authorizes the filing of an anti-SLAPP motion "against any claim in a civil action that arises out of * * * [a]ny * * * conduct in furtherance of * * * the constitutional right of free speech in connection with a public issue or an issue of public interest." ORS 31.150 (2)(d). Here, all of the claims presented raised in this civil action are based explicitly on-and therefore "arise[ ] out of"-defendant's conduct of publishing an online review on a public website expressing his opinion of plaintiff's wedding venue. The question, then, is whether that conduct (1) was "in furtherance of * * * the constitutional right of free speech," and, if so, (2) "in connection with a public issue or an issue of public interest."

As to the first point, the Supreme Court explained in Neumann II that the First Amendment affords "full constitutional protection * * * to statements regarding matters of public concern that are not sufficiently factual to be capable of being proved false and statements that cannot reasonably be interpreted as stating actual facts." 358 Or. at 714, 369 P.3d 1117. That necessarily means that defendant's act of publishing such an opinion online qualifies as "conduct in furtherance of * * * the constitutional right of free speech" for purposes of ORS 31.150(2)(d). Simply put, under Neumann II , the right to post an opinion of that nature is part of the First Amendment right to free speech.

As to the second point, the Supreme Court held in Neumann II that defendant's review was on "a matter of public concern" for purposes of the First Amendment inquiry. Id . at 720, 369 P.3d 1117. The court explained:

"[Plaintiff] has not disputed that [defendant's] statements involve matters of public concern, and we readily conclude that they do. [Defendant's] review was posted on a publicly accessible website, and the content of his review to related matters of general interest to the public, particularly those members of the public who are in the market for a wedding venue. See Unelko , 912 F.2d at 1056 (Andy Rooney's statement on '60 Minutes' that a consumer product 'didn't work' involved a matter of public concern because it 'was of general interest and was made available to the general public')."

Id .

In our view, the same reasoning dictates the conclusion that defendant's review was on an "issue of public interest" for purposes of ORS 31.150(2)(d). Nothing in the text, context, or legislative history of ORS 31.150 suggests that the legislature intended the phrase "issue of public interest" to be understood in any way other than its common-sense meaning. Under that common-sense meaning, an "issue of public interest" is one that is of interest to the public, and the Supreme Court has already explained why defendant's review is on a matter that is of interest to the public (particularly to those members of the public looking for a wedding venue). For those reasons, the trial court correctly concluded that the claims alleged in this civil action were subject to the anti-SLAPP statutes.

The remaining issue before us on remand is defendant's challenge to the trial court's attorney fee award. Because we have concluded that the trial court properly determined that this action was subject to Oregon's anti-SLAPP statutes, the court was authorized to award attorney fees to defendant pursuant to ORS 31.152(3), as it did. In his cross-appeal, however, defendant contends that the court erred when it did not award him the full amount of fees requested ($11,527.50) but, instead, awarded only $8,000. Although the court concluded that defendant's lawyer spent a reasonable number of hours on the case and that she charged a reasonable hourly rate, it reasoned that $8,000 was an appropriate fee award under the circumstances of the case. The court did so based on its determination that the amount at stake in the case was only $7,500:

"While the number of hours charged to the case were reasonable[,] the Court finds from a review of the pleadings that the amount sought in the complaint was only $7,500.00 because plaintiffs were only entitled to one satisfaction of damages no matter how many competing theories of recovery the same damages are sought under. Further, by invoking a right of recovery of attorney fees under ORS 20.080, Plaintiffs were necessarily alleging that their aggregate claim did not exceed $7,500.00. Steele v. A & B Automotive & Towing Service , 135 Or. App. 632 [899 P.2d 1206] (1995). The Court finds that a reasonable attorney fee[ ] * * * should not greatly exceed the amount of the claim."

In his cross-appeal, defendant argues that the trial court erred in two respects. First, defendant contends that the court erred when it concluded that the action sought only $7,500 in total based on the fact that the complaint recited ORS 20.080. Second, defendant contends that the court's statement that reasonable attorney fees "should not greatly exceed the amount of the claim" is contrary to law. In response, plaintiffs more or less adopt the court's reasoning, asserting that it was not an abuse of discretion under the factors in ORS 20.075 for the court to conclude that $8,000 was an appropriate amount of fees. Plaintiffs do not respond directly to defendant's argument that the court erred when it concluded that the complaint sought a maximum of $7,500 total by virtue of its citation to ORS 20.080, although plaintiffs characterize their "claim" as being for $7,500. As for the amount of the attorney fee award in relationship to the amount of plaintiffs' claims, plaintiffs point out that ORS 20.075(2)(d) directs the trial court to consider "[t]he amount involved in the controversy and the results obtained," and argue that a bill for $11,527.50 in attorney fees on a claim worth $7,500 is not reasonable.

On review of the record, we conclude that the trial court erred when it treated $7,500 as the "amount involved in the controversy" for purposes of evaluating the reasonableness of defendant's claim for attorney fees. By its plain terms, the complaint sought $7,500 in damages for each of the two plaintiffs. The complaint alleged two distinct claims on behalf of plaintiff Neumann and two distinct claims on behalf of plaintiff Dancing Deer. It distinctly alleged that each plaintiff had suffered $7,500 in damages as a result of defendant's conduct. And the prayer stated that each plaintiff was seeking damages in the amount of $7,500:

"WHEREFORE, Plaintiff Carol Neumann prays for judgment against Defendant in the sum of $7,500 for both economic and non-economic damages, and for her costs, disbursements and attorney fees incurred herein, and
"Plaintiff Dancing Deer Mountain prays for judgment against Defendant in the amount of $7,500 and for its costs, disbursements and attorney fees incurred herein."

Although, as the trial court observed, it is true that each plaintiff separately pleaded that ORS 20.080 authorized each plaintiff to recover attorney fees, in the context of this case, that allegation does not suggest that the two plaintiffs were seeking a combined $7,500. In their response to defendant's petition for attorney fees, plaintiffs characterized their complaint as seeking "$7,500 for each of the two plaintiffs." Perhaps more significantly, plaintiffs' pretrial demand letter to defendant, which was submitted to the court in connection with the anti-SLAPP motion, indicated that each plaintiff was seeking $7,500 from defendant.

Under those circumstances, the trial court erred when it treated the amount at stake in the action as $7,500 when evaluating the reasonableness of defendant's attorney fee request. Even allowing for the possibility that the complaint reasonably might be construed to seek only $7,500, when the complaint is viewed in connection with plaintiffs' demand letter, those documents signaled to defendant that the amount that the two plaintiffs were seeking was $7,500 each, for a total of $15,000. For that reason, the reasonableness of defendant's request for attorney fees should be assessed with that amount in mind because that is what plaintiffs indicated the stakes were, through both their pleadings and demand letter. We therefore reverse and remand on the cross-appeal for the trial court to conduct that assessment. We do not address defendant's other claim of error with respect to the attorney fee award because it is not necessary in light of our disposition, and the issue does not seem likely to arise on remand.

Affirmed on appeal; reversed and remanded on cross-appeal.

      At the time, plaintiffs' lawyer indicated that he was considering filing suit not only on behalf of plaintiffs, but also on behalf of one additional party. The demand letter stated:
      "Demand is hereby made for $7,500 to each of my three clients to resolve their claims. If you do not pay the sum of $7,500 to each of my three clients on or before December 24, 2010, lawsuits for that sum will be filed against you by each client. In that event, my clients will be entitled to recover their costs, disbursements, and attorney fees if they prevail in their actions."