Underwood v. City of Portland ( 2022 )

648
Submitted April 2, 2021; reversed and remanded as to claims of assault and
battery, otherwise affirmed May 18, 2022
Dennis Burton UNDERWOOD,
Plaintiff-Appellant,
v.
CITY OF PORTLAND et al.,
Defendants,
and
Taylor APPELO,
Defendant-Respondent.
Multnomah County Circuit Court
17CV47237; A173002
510 P3d 918
In this civil appeal, plaintiff challenges the trial court’s entry of summary
judgment on claims of assault and battery against defendant Appelo. In a pre-
vious criminal action stemming from the same confrontation, plaintiff was con-
victed of second-degree assault against defendant, after plaintiff raised a self-
defense claim in that trial. In this civil case, the trial court concluded that the
criminal conviction, rejecting self-defense, meant that plaintiff was precluded
from litigating the torts of assault and battery against defendant, and that the
tort claims amounted to a collateral attack on the criminal convictions. Held: The
issues that the jury decided in rejecting plaintiff’s self-defense claim in the crim-
inal trial are not identical to the issues required to prove the assault or battery
torts; therefore, issue preclusion cannot apply as a matter of law. The elements of
those torts are not directed at the validity of the criminal conviction; therefore,
plaintiff was not collaterally challenging that conviction.
Reversed and remanded as to claims of assault and battery; otherwise
affirmed.
Katharine von Ter Stegge, Judge. (General Judgment
November 26, 2019)
Stephen K. Bushong, Judge. (Supplemental Judgment
November 27, 2019)
Dennis B. Underwood filed the briefs pro se.
Christine S. Mascal filed the brief for respondent. Also on
the brief was Mascal Law Office LLC.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
Cite as 319 Or App 648 (2022) 649
PAGÁN, J.
Reversed and remanded as to claims of assault and bat-
tery; otherwise affirmed.
650 Underwood v. City of Portland
PAGÁN, J.
This civil appeal arises from an October 2015 alter-
cation between two men in downtown Portland: Underwood
and Appelo. Plaintiff in this case, Underwood, was convicted
of second-degree assault in a previous criminal action stem-
ming from that altercation. After the conviction, Underwood
filed the civil complaint in this action against, among oth-
ers, defendant Appelo, asserting that Appelo had committed
the torts of assault, battery, false imprisonment, and negli-
gence against Underwood.1
This appeal follows the trial court’s grant of sum-
mary judgment in favor of Appelo. In his first two assign-
ments of error, Underwood contends that the trial court
abused its discretion by vacating an order of default entered
against Appelo and by denying Underwood’s motion to recon-
sider the same. We reject those assignments of error without
discussion. Underwood also assigns error to the trial court’s
granting of summary judgment to Appelo and dismissing
his claims of assault and battery. For the reasons explained
below, we conclude that the trial court erred by granting
summary judgment to Appelo on Underwood’s tort claims of
assault and battery, and thus, we reverse and remand as to
those claims.2
As noted above, Underwood contends that the trial
court erred by granting summary judgment on his claims
against Appelo for assault and battery.3 The trial court
stated, in its opinion and order granting summary judgment,
that elements of Underwood’s tort claims against Appelo
were litigated as part of the criminal proceeding against
Underwood. In that criminal case, Underwood had claimed
that Appelo was the initial aggressor and that he struck
1
Although we usually refer to the parties by their positions in the lower
tribunal, to avoid confusion when discussing the previous criminal case and this
civil matter on appeal, we refer to each party by their last names.
2
Underwood did not assign error to the granting of summary judgment on
the false imprisonment or negligence claims.
3
The trial court determined that although the motion was presented as a
motion to dismiss under former ORCP 21(A)(8) (2019), renumbered as ORCP 21
(A)(1)(h), because both parties cited to extensive evidence outside the pleadings,
it would consider the motion as one for summary judgment under ORCP 47.
Neither party challenges that determination.
Cite as 319 Or App 648 (2022) 651
Appelo with a baseball bat in self-defense. Having raised
self-defense in the criminal trial, the jury was instructed
that:
“The defense of self-defense has been raised. A person is
justified in using physical force on another person to defend
himself from what he reasonably believes to be the use or
imminent use of unlawful physical force. In defending, a
person may only use that degree of force which he reason-
ably believes to be necessary. The burden of proof is on the
state to prove beyond a reasonable doubt that the defense
does not apply.”
The trial court observed that although the jury
rendered only a general verdict in finding plaintiff guilty
of second-degree assault, in doing so, the jury must have
rejected plaintiff’s self-defense claim. The trial court con-
cluded that, by rejecting Underwood’s self-defense claim,
the jury found beyond a reasonable doubt that Underwood
“was the aggressor and was not acting in self-defense,” thus
it was impossible for Underwood to subsequently estab-
lish by a preponderance of the evidence any of the torts he
claimed against Appelo. Moreover, the trial court reasoned
that Underwood’s tort claims amounted to an impermissi-
ble collateral attack on his conviction, and therefore also
required dismissal of the claims. The trial court stated that,
“[b]ecause [Underwood] was convicted of Assault in the
Second Degree after he made the claim of self-defense, there
is no genuine issue of material fact on any of [Underwood’s]
claims.”
This appeal requires us to determine to what extent,
if any, issues decided in the criminal proceeding against
Underwood preclude him from litigating the torts of assault
(claim 1) and battery (claim 2) against Appelo in this civil
proceeding. Appelo contends that by convicting Underwood
of second-degree assault, the jury concluded that “[Appelo]
did not attack [Underwood] and did not cause the alterca-
tion” and that, therefore, Underwood is collaterally estopped
from litigating his assault and battery claims against
Appelo in this case. Underwood disagrees and argues, in
part, that “[p]roving [Underwood] assaulted Appelo doesn’t
prove Appelo didn’t commit torts of assault and battery.”
Underwood is correct about that and, as we explain below,
652 Underwood v. City of Portland
Appelo was not entitled to prevail as a matter of law on the
assault and battery claims for relief.
In an appeal from a grant of summary judgment,
“we view the facts and all reasonable inferences that may be
drawn from them” in favor of the nonmoving party, in this
case, Underwood. Outdoor Media Dimensions Inc. v. State
of Oregon, 331 Or 634, 638, 20 P3d 180 (2001). Summary
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment
as a matter of law. Id. (citing ORCP 47 C). For context and to
explain the possible bases on which the jury could have con-
cluded that Underwood was guilty of second-degree assault,
despite the claim of self-defense, we summarize each side’s
theories of the criminal case.
The state presented a theory of the case that, while
skateboarding home from work with a grocery bag under
his arm, Appelo heard a woman screaming. Appelo did
not have a good look from where he was, but as he skated
about a block further, he could see Underwood “in the alcove
area, [and] a shiny object in the air. He saw that it was
Mr. Underwood swinging a bat at a woman, and she was
screaming for help.” Appelo set his bags down, skated closer
to the alcove, and yelled out, “Leave her alone, or I’m call-
ing the cops.” At that point, Underwood came after Appelo,
causing Appelo to back up, pick up his skateboard to “block
the jabs” Underwood was making toward him with the base-
ball bat, and, finally, “instinctively [bring] up his left hand”
to block a blow from the baseball bat. Underwood swung
the bat, hitting Appelo’s left arm and breaking it. The state
argued that there was no dispute that Underwood caused
the broken arm and that Appelo was injured.
The issue, as the state framed it, was whether
Underwood’s actions were in self-defense. The state argued
to the jury, “Keep in mind that Mr. Underwood has to
believe—he has to reasonably believe that he’s in danger of
imminent serious physical injury from Mr. Appelo. He also
has to use the use of force in response to that threat that’s
reasonable under the circumstances.” The state further
argued that Appelo had the right to intervene to defend the
Cite as 319 Or App 648 (2022) 653
woman, because he reasonably believed that the woman was
in danger.4
Underwood presented a far different account of the
altercation to the jury. According to Underwood, he had
taken the baseball bat away from another woman who was
threatening his girlfriend. Underwood and his girlfriend
“walk[ed] around the block [to] let [the other woman] calm
down.” On their walk, Underwood and his girlfriend came
across a mutual friend, and began chatting in the alcove.
While chatting with the mutual friend, Underwood and his
girlfriend got in an argument; his girlfriend yelled and ran
away from Underwood. At that point, Appelo arrived on his
skateboard and “ordered [Underwood] to put the bat down.”
After some verbal confrontation, Underwood started walk-
ing away from Appelo, who followed him at about the dis-
tance of 15 feet and eventually “swung the skateboard at
[Underwood].” According to Underwood, at one point during
multiple swings of the skateboard, Appelo switched to hold-
ing the skateboard in his left hand but became injured and
backed away. Underwood testified, “I guess it would seem
obvious, but once Appelo started hitting me with the skate-
board I definitely felt fear for my safety and I definitely felt
like I was in danger, you know.”
During his closing argument, Underwood argued
that he was “confronted by a stranger on a skateboard on
a dark street late at night. Appelo then began giving me
commands, still armed with a skateboard, then began try-
ing to pummel me with a skateboard.” Underwood said that
he used the minimum amount of force to defend himself,
and that both his fear and that his defense of himself was
reasonable.
The jury found Underwood guilty of second-degree
assault. The jury’s determination of criminal liability leads
to the inescapable conclusion that it rejected Underwood’s
4
In addition to the self-defense instruction for Underwood, the jury was
instructed that
“[a] person is justified in using physical force on another person to defend a
third party from what he reasonably believes to be the use or imminent use
of unlawful physical force. In defending, a person may only use that degree of
force which he reasonably believes to be necessary.”
654 Underwood v. City of Portland
claim of self-defense. As we understand the choices that
were presented to the jury in the criminal trial, it could
have found Underwood guilty for a number of reasons, all
turning on how it considered the self-defense claim. First,
the jury could have completely credited Appelo’s version of
the events and discounted Underwood’s version. Implicit in
that determination is that Appelo did not make intentional
physical contact with Underwood and that any contact with
Underwood was incidental to Appelo’s attempts to block
the attack. Second, the jury could have found that Appelo
initiated a verbal confrontation but could have rejected
Underwood’s argument that his fear of Appelo was rea-
sonable. Third, the jury could have found that Appelo was
the initial aggressor and that Underwood’s fear was rea-
sonable but rejected the argument that Underwood’s use
of force was reasonable. Finally, the jury could have found
that Underwood was in fact attacking the woman with a
bat, that the force Appelo used in defending her was justi-
fied, and that Underwood could not claim self-defense as he
initiated the entire violent encounter. Any of those reasons
would have been sufficient for the jury to reject Underwood’s
self-defense claim, but as we will explain, in this case, none
are preclusive as to whether Appelo committed the torts of
assault and battery against Underwood.
Issue preclusion arises in subsequent proceedings
when an “issue of ultimate fact has been determined by a
valid and final determination in a prior proceeding.” Nelson
v. Emerald People’s Utility Dist., 318 Or 99, 103, 862 P2d
1293 (1993). If a tribunal has decided an issue,
“the decision on that issue may preclude relitigation of the
issue in another proceeding if five requirements are met:
“1. The issue in the two proceedings is identical.
“2. The issue was actually litigated and was essential to a
final decision on the merits in the prior proceeding.
“3. The party sought to be precluded has had a full and
fair opportunity to be heard on that issue.
“4. The party sought to be precluded was a party or was in
privity with a party to the prior proceeding.
Cite as 319 Or App 648 (2022) 655
“5. The prior proceeding was the type of proceeding to
which this court will give preclusive effect.”
Id. at 104 (citations omitted). Issue preclusion may bar relit-
igation of factual or legal issues raised in the earlier adju-
dication. Thomas v. U. S. Bank National Association, 244
Or App 457, 472, 260 P3d 711, rev den, 351 Or 401 (2011).
At the summary judgment stage, issue preclusion applies
as a matter of law only if it can be conclusively established
from the record that “all the Nelson requirements [are] sat-
isfied.” Barackman v. Anderson, 338 Or 365, 372, 109 P3d
370 (2005). The outcome of this appeal turns on the first two
requirements.
In this case, the precise issues that we can infer from
the jury verdict in the criminal trial are that Underwood did
actually assault Appelo and that Underwood’s actions were
not justified by self-defense. Beyond those inferences, we can
only speculate as to why the jury rejected Underwood’s claim
of self-defense. However, those issues that were decided by
the jury are not dispositive as to whether Appelo commit-
ted the torts of assault or battery against Underwood. See
Flowers v. Campbell, 81 Or App 437, 440, 725 P2d 1295(1986) (victim’s use of more force than justified not defense
to crime of assault); Linkhart v. Savely, 190 Or 484, 497,
227 P2d 187 (1951) (aggressor may still recover in tort if
victim used more force than necessary to repel the aggres-
sion).5 The issue that Underwood is precluded from reliti-
gating is whether his use of force against Appelo was justi-
fied, because the jury’s rejection of Underwood’s self-defense
claim determined it was not. See Roshak v. Leathers, 277
Or 207, 210, 560 P3d 275 (1977) (tort defendant precluded
from litigating self-defense privilege when self-defense was
litigated and rejected against defendant in criminal trial).
Whether Appelo committed the torts of assault or
battery against Underwood—the issue raised in this civil
litigation—is not the same issue as whether Underwood’s
5
For example, the jury could have found that Appelo used force against
Underwood but was not justified in using the degree of force that he did to defend
the woman from Underwood’s attack; or that Underwood was not justified in
using the degree of force that he did to repel Appelo’s attack. Those findings
would not change whether the jury could have found Underwood guilty by reject-
ing the criminal self-defense claim.
656 Underwood v. City of Portland
assaultive conduct was justified under criminal law, which
was previously determined in the criminal trial. As
instructed, the jury had to find beyond a reasonable doubt
that Underwood’s assault of Appelo was not justified by self-
defense. The elements of self-defense in the criminal con-
text are (1) “a person is justified in using physical force upon
another person for self-defense * * * from what the person
reasonably believes to be the use or imminent use of unlaw-
ful physical force”; and (2) that person “may use a degree of
force which the person reasonably believes to be necessary
for the purpose.” ORS 161.209 (emphasis added). In con-
trast, the general elements of the tort of assault are (1) a
person acts, intending to either; (2) cause harmful or offen-
sive contact with another person or to cause another per-
son apprehension of imminent harmful or offensive contact
with that other person; and (3) the other person reasonably
believes a harmful or offensive contact would occur. Cook
v. Kinzua Pine Mills Co. et al, 207 Or 34, 47, 293 P2d 717(1956); Restatement (Second) of Torts § 21 (1965). The com-
mon element between criminal law self-defense on one side
and the tort of assault on the other is the reasonable belief
of the actor that unlawful physical force is being used or
will imminently be used against that actor.6 Thus, for the
assault claim, the only issue that could possibly be precluded
in this case is whether Underwood reasonably believed that
Appelo was using or was imminently going to use unlaw-
ful physical force against him. To be sure, if that was the
reason the jury rejected Underwood’s self-defense claim in
the criminal trial, Underwood would be precluded as a mat-
ter of law from establishing one of the elements of assault,
and thus summary judgment would be appropriate. But, as
previously noted, that is but one possible reason the jury
rejected the self-defense claim.
The tort of battery requires (1) a person act with
intent to cause harmful or offensive contact with another
person, and (2) those actions directly or indirectly cause
a harmful or offensive contact with that other person.
Bakker v. Baza’r, Inc., 275 Or 245, 249, 551 P2d 1269 (1976);
6
We assume for the sake of argument that unlawful physical force would
almost always be harmful or offensive.
Cite as 319 Or App 648 (2022) 657
Restatement §§ 13, 18. Therefore, there are no common ele-
ments that would be preclusive between self-defense and
the tort of battery. Had the jury in the criminal trial made
a factual determination that Appelo did not make contact
with Underwood, issue preclusion would apply to the bat-
tery claim. But, again, we cannot presume that finding by
the jury because there are multiple reasons the jury could
have rejected the self-defense claim.
Further, even in instances where a proponent of
issue preclusion can demonstrate that the issues are indeed
identical between the earlier and later actions, the propo-
nent must also demonstrate that the second Nelson factor is
met—that the specific issue was actually litigated and was
essential to a final decision on the merits in the earlier adju-
dication. Nelson, 318 Or at 104. To satisfy that requirement,
the prior “resolution of an issue must either be apparent
from the face of a judgment or order or, if not apparent from
the face [thereof], must have been necessary to the resolu-
tion of the prior adjudication.” Leach v. Scottsdale Indemnity
Co., 261 Or App 234, 240, 323 P3d 337, rev den, 356 Or 400(2014). If not stated on the face of the judgment, whether
an issue was actually litigated and necessary to the prior
adjudication requires an examination of the facts and cir-
cumstances of the prior adjudication. Heller v. Ebb Auto
Co., 308 Or 1, 6-7, 774 P2d 1089 (1989); see also Casey v.
N. W. Security Ins. Co., 260 Or 485, 492, 491 P2d 208 (1971)
(factfinder must have determined issue of mental state in
criminal trial); Berg v. Benton, 297 Or App 323, 328, 443
P3d 714 (2019) (factfinder must have determined causation
in criminal trial). When the prior adjudication could have
turned on multiple exclusive bases, absent an express find-
ing of a particular reason, an issue is generally not con-
sidered to be actually litigated and necessary to the prior
adjudication. See Heller, 308 Or at 6-7 (explaining multiple
reasons that the prior tribunal could have concluded the way
it did and therefore why that issue could not be precluded).
As noted, the jury in the criminal trial could have rejected
Underwood’s self-defense claim for a number of reasons, any
of which would have been legally sufficient for that purpose,
but it does not follow that any identical issues between the
criminal case and civil case were necessarily decided.
658 Underwood v. City of Portland
Finally, Appelo argued below, and the trial court
agreed, that the claims amounted to an impermissible col-
lateral attack on Underwood’s criminal conviction. Relying
on Heck v. Humphrey, 512 US 477, 114 S Ct 2364, 129 L Ed
2d 383 (1994), the trial court stated that an alternative rea-
son to grant summary judgment was that the claims imper-
missibly sought to undo Underwood’s convictions. However,
Heck involved 42 USC section 1983 claims that directly
attacked the underlying elements of a plaintiff’s underlying
criminal convictions, including malicious prosecution and
false imprisonment. The Supreme Court stated that those
claims necessarily required a judge or jury to find that the
underlying convictions were invalid because of the elements
specific to those claims. Heck, 512 US at 483-84 (holding
that a section 1983 claim for malicious prosecution must
be preceded by the criminal matter being terminated in a
plaintiff’s favor); see also Thompson v. Clark, 596 US ___,
142 S Ct 1332, 212 L Ed 2d 328 (2022) (section 1983 plaintiff
only needs to show prosecution ended without a conviction).
Because we conclude that the claims Underwood raised
against Appelo would not necessarily challenge the validity
of his underlying convictions, it follows that Underwood was
not collaterally attacking his convictions with those claims,
and Heck is inapposite. To the extent the trial court found
that Underwood was impermissibly making a collateral
attack on his criminal conviction through the assault and
battery claims, the court erred.
Reversed and remanded as to claims of assault and
battery; otherwise affirmed.