The Oregon Court of Appeals recently ruled in the case of Lowes v. Thompson, affirming a lower court's decision to deny Oregon Public Broadcasting (OPB) attorney fees. This ruling affects OPB's ability to recover costs after a defamation lawsuit brought against them by Peter Lowes was dismissed. The court's decision highlights the importance of filing motions in legal proceedings.
The case, docket number A180736, centers on a defamation claim made by Lowes against OPB. The dispute arose when OPB published an article about Lowes, leading him to file a lawsuit. Although Lowes initially pursued the case, he voluntarily dismissed OPB as a defendant before OPB could file a special motion to strike the lawsuit under Oregon's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.
In the initial proceedings, OPB's legal team prepared a special motion to strike Lowes' lawsuit, arguing that it was a SLAPP suit. However, before the motion was filed, Lowes' attorney requested time to consult with his client, which OPB's counsel agreed to. Following this consultation, Lowes dismissed OPB from the case. The court later issued a judgment of limited dismissal against OPB, and OPB subsequently sought to recover $116,995 in attorney fees and an additional $5,345 as an enhanced prevailing party fee.
In its appeal, OPB argued that it should be entitled to attorney fees because it had made a special motion to strike, even though it had not formally filed the motion. The court ruled that OPB was not entitled to attorney fees or a prevailing party fee under ORS 31.152(3) because it did not file the anti-SLAPP motion. The ruling stated, "OPB was not entitled to attorney fees or costs under ORS 31.152(3) because it did not file an anti-SLAPP special motion to strike." The judges presiding over this case included Shorr, Powers, and Pagán, with Pagán writing the opinion.
The court's decision emphasized that a party must file a motion to prevail on it and be eligible for attorney fees. The court noted that the language in the anti-SLAPP statute requires a motion to be filed for it to have legal effect. The court stated, "We conclude that, in context, the meaning of 'made' in ORS 31.152(3) indicates that the motion must have been filed." This interpretation aligns with the legislative intent behind the anti-SLAPP statute, which aims to prevent frivolous lawsuits that could hinder free speech.
As a result of this ruling, OPB's request for an enhanced prevailing party fee was also denied. The court explained that since OPB was not entitled to the regular prevailing party fee, it could not claim an enhanced fee either. The court concluded, "An enhanced prevailing party fee may be allowed in addition to a regular prevailing party fee under ORS 20.190(2), which provides for such a fee to be awarded to 'a prevailing party who has a right to recover costs and disbursements.'"
This ruling has significant implications for future cases involving anti-SLAPP motions in Oregon. It underscores the necessity for parties to formally file motions if they wish to seek attorney fees under the anti-SLAPP framework. This decision may influence how parties approach similar situations in the future, particularly in defamation cases where the potential for SLAPP suits exists.
Moving forward, OPB has the option to appeal this ruling to the Oregon Supreme Court if it chooses. However, details regarding any potential appeal were not available in the court filing. The outcome of this case may also prompt further discussions about the anti-SLAPP statute and its application in Oregon courts, particularly in light of recent amendments to the law.