T. M. E. v. Strope ( 2020 )

156
Argued and submitted June 9, reversed October 7, 2020
T. M. E.,
Petitioner-Respondent,
v.
Jennifer STROPE,
Respondent-Appellant.
Yamhill County Circuit Court
19SK02177; A172290
476 P3d 972
Respondent appeals a judgment and permanent stalking protective order
(SPO) prohibiting contact with petitioner. Respondent leased church space from
petitioner. After petitioner terminated their lease agreement and asked respon-
dent to vacate the church, two incidents ensued giving rise to the petition, one of
which involved respondent allegedly poking her finger in petitioner’s chest. On
appeal, respondent argues that the evidence presented was insufficient to estab-
lish, among other things, the existence of repeated unwanted contacts. Held: The
trial court erred in issuing the SPO. Even assuming the finger-poking contact
was unwanted and that petitioner was subjectively alarmed by that contact,
there was insufficient evidence for the trial court to have concluded that peti-
tioner’s alarm was objectively reasonable. Because that contact did not qualify as
an “unwanted contact” for the purposes of the SPO, the record lacked sufficient
evidence of repeated unwanted contacts, even assuming that the second contact
could have qualified. See ORS 163.738(2)(a)(B) (requiring repeated unwanted
contacts to issue an SPO).
Reversed.
John T. Mercer, Judge pro tempore.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
No appearance for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Reversed.
Cite as 307 Or App 156 (2020) 157
MOONEY, J.
Petitioner obtained a permanent stalking protec-
tive order (SPO) against respondent. Respondent appeals
the SPO judgment, challenging the sufficiency of the evi-
dence. We agree that the record does not support the issu-
ance of the SPO and we, therefore, reverse.
De novo review is neither requested nor warranted.
See ORAP 5.40(8)(c). We review the factual findings for any
supporting evidence and the legal conclusions based on
those facts for legal error. Miller v. Hoefer, 269 Or App 218,
219, 344 P3d 121 (2015). We presume that the trial court
resolved any disputed facts consistent with the outcome it
reached. Id. “When the sufficiency of the evidence support-
ing an SPO is challenged on appeal, we view the evidence
and all reasonable inferences that may be drawn from it
in the light most favorable to the trial court’s disposition
and assess whether, when so viewed, the record is legally
sufficient to permit that outcome.” King v. W. T. F., 276 Or
App 533, 537, 369 P3d 1181 (2016) (internal quotation marks
omitted).
We state the pertinent facts consistent with that
standard. Petitioner is the senior pastor at a church in
Sheridan, Oregon. Respondent leased space from the church
and ran a school there. Petitioner and respondent, therefore,
stood in the relationship of landlord and tenant. It was in the
context of that relationship that a dispute arose between them
that, in turn, led to petitioner demanding that respondent no
longer use the church facilities for her school. Petitioner noti-
fied respondent that she was required to vacate the prem-
ises within 14 days. Petitioner saw respondent at the church
on August 7, 2019, still during that 14-day period, and he
asked her if she would have the school’s belongings removed
from the church by the deadline. Respondent explained that
her husband was out of town and that “they weren’t going to
be able to get their items out for quite sometime.” According
to petitioner, respondent then told him that “there was a
special place in hell for pastors like you” and blamed him
for the school’s closure while “poking” her finger in his
chest.
158 T. M. E. v. Strope
On August 21, 2019, petitioner sent a second notice
to respondent confirming that she had not vacated the
premises by the deadline and that the school was required
to vacate the church no later than September 1, 2019. That
same day, when petitioner returned to the church, respon-
dent and her father pulled into the church driveway imme-
diately after him. Respondent and her father exited their
vehicle and waited for petitioner to get out of his car. When
petitioner did so, respondent’s father said, “[W]e need to
talk,” “in a very gruff voice.” Petitioner told respondent and
her father that he would not speak to them unless they had a
“better attitude.” Respondent was “very angry” and “pushed
past” her father. She pushed petitioner with both hands and
“swung open handed,” “grazing” petitioner with her finger-
tips. She then ripped up the August 21, 2019, notice, threw
it at petitioner, and then threw “a handful of keys” at him,
which “bounced off” his face. Respondent “scream[ed]” at
petitioner using “F bombs” and other expletives to express
her belief that petitioner was “a miserable excuse for a pas-
tor.” She told petitioner to keep the items that remained in
the church. Petitioner said that he was going to call 9-1-1, at
which point respondent and her father left.
The following day, petitioner sought and obtained
a temporary SPO against respondent1 on the basis of the
August 7 and August 21 contacts. Approximately one
month later, a hearing was held to determine whether the
SPO would be dismissed or made permanent. The parties
appeared for the hearing and, after taking testimony and
considering arguments, the trial court found petitioner’s
“version of both incidents to be believable” and issued a per-
manent SPO against respondent.
Respondent appeals, arguing that there was insuffi-
cient evidence to support the permanent SPO. In particular,
she argues that there was insufficient evidence to establish
(1) the existence of two unwanted contacts and (2) the requi-
site level of alarm or coercion. As explained below, we agree
that the record is insufficient, as a matter of law, to support
the trial court’s conclusion that the first contact, on August 7,
1
Petitioner also sought a temporary SPO against respondent’s father, but
the trial court denied that petition.
Cite as 307 Or App 156 (2020) 159
was a qualifying contact for purposes of issuing the SPO.
Because the statute requires two qualifying contacts, we
thus reverse without discussing the second encounter.
Under ORS 30.866(1),
“[a] person may bring a civil action in a circuit court for
a court’s stalking protective order or for damages, or both,
against a person if:
“(a) The person intentionally, knowingly or recklessly
engages in repeated and unwanted contact with the other
person or a member of that person’s immediate family or
household thereby alarming or coercing the other person;
“(b) It is objectively reasonable for a person in the vic-
tim’s situation to have been alarmed or coerced by the con-
tact; and
“(c) The repeated and unwanted contact causes the
victim reasonable apprehension regarding the personal
safety of the victim or a member of the victim’s immediate
family or household.”
To summarize, as pertinent here, the petitioner must prove
at least two unwanted contacts, each contact must give rise
to subjective alarm,2 that alarm must be objectively reason-
able, and, cumulatively, the contacts must cause petitioner
objectively reasonable apprehension for the petitioner’s per-
sonal safety or that of someone in the petitioner’s family
or household. ORS 163.730(7) (“ ‘Repeated’ means two or
more times.”); C. P. v. Mittelbach, 304 Or App 569, 575, 468
P3d 496 (2020). “Alarm,” for purposes of obtaining an SPO,
means to “cause apprehension or fear resulting from the per-
ception of danger,” ORS 163.730(1); “danger,” in turn, refers
to a “threat of physical injury, not merely a threat of annoy-
ance or harassment,” Brown v. Roach, 249 Or App 579, 586,
277 P3d 628 (2012). It is petitioner’s burden to prove each
element by a preponderance of the evidence. ORS 30.866(7).
Here, even assuming that the record supports the
trial court’s implicit findings that the contact on August 7—
which included respondent poking her finger in petitioner’s
chest—was unwanted, and that petitioner was subjectively
2
There is no suggestion of coercion in this case.
160 T. M. E. v. Strope
alarmed by that contact, there is insufficient evidence from
which the trial court could conclude, given the circum-
stances, that petitioner’s alarm was objectively reasonable.
ORS 30.866(1)(b); see Greenwade v. Tepper, 285 Or App 646,
647, 396 P3d 990 (2017) (each contact “individually, must
give rise to subjective and objectively reasonable alarm”
(internal quotation marks omitted)).
Importantly, we consider “all of the circumstances
of the parties’ relationship” in evaluating the objective rea-
sonableness of petitioner’s alarm. Brown, 249 Or App at 587.
The August 7 contact occurred on church property while
respondent was still a bona fide tenant there. It is true that
petitioner, as landlord, gave notice requiring respondent
to vacate the property. But the August 7 contact occurred
during the 14-day window that petitioner had defined as
the time for respondent to remove school belongings from
church property. Respondent not only had permission to
be on church property, petitioner insisted that she use that
time frame to come to the church and remove her property.
While respondent was at the church, it was petitioner who
approached her to find out whether she would be able to meet
his deadline. We do not suggest that petitioner, simply by his
presence, invited the poke in the chest or the comment about
“pastors like you.”3 But, petitioner’s role in the encounter is
a factor that we consider in the overall analysis.
Notably, the August 7 incident occurred as the
parties’ landlord-tenant relationship was terminating, see
generally Daves v. Kohan, 282 Or App 243, 253, 385 P3d
1161 (2016), rev den, 361 Or 439 (2017) (considering par-
ties’ landlord-tenant relationship as factor in determining
whether SPO was warranted), and the record is clear that
3
Speech-based contacts do not alone qualify as “contacts” for SPO purposes
unless they “rise to the level of a threat,” that is, “the sort of communication that
instills in the addressee a fear of imminent and serious personal violence from
the speaker, is unequivocal, and is objectively likely to be followed by unlawful
acts.” Miller, 269 Or App at 223 (internal quotation marks omitted); see also id.(distinguishing “the kind of hyperbole, rhetorical excesses, and impotent expres-
sions of anger or frustration that in some contexts can be privileged even if they
alarm the addressee” (internal quotation marks omitted)). Nevertheless, relevant
speech that does not meet that heightened standard may still be considered as
context when evaluating other contacts. Reitz v. Erazo, 248 Or App 700, 706, 274
P3d 214 (2012).
Cite as 307 Or App 156 (2020) 161
respondent was frustrated and upset by that unilateral ter-
mination. Her extreme reaction to petitioner’s inquiry about
whether she would have her belongings removed from the
church by the deadline was no doubt unwelcome and uncom-
fortable to petitioner. However, given the circumstances, even
if petitioner was subjectively alarmed by that behavior—
which included the nonspeech conduct of “poking” his
chest—such alarm was not objectively reasonable. That is,
respondent’s conduct would not cause a reasonable person
in petitioner’s situation to be apprehensive or afraid due to
a perception of danger. In other words, respondent’s conduct
would not cause a reasonable person in petitioner’s situa-
tion to be apprehensive or afraid due to the perception of
a “threat of physical injury” rather than “merely a threat
of annoyance or harassment.” Brown, 249 Or App at 586;
see also King, 276 Or App at 538 (victim’s subjective alarm
must be objectively reasonable “for a person in the victim’s
situation”); see also, e.g., Greenwade, 285 Or App at 651 (not
objectively reasonable for person in the petitioner’s situation
to be alarmed by the respondent’s conduct—directing third
person to smear sardines on the petitioner’s car—where
there was no evidence that anyone was endangered or, “in
the broader context of the parties’ feud,” that the incident
would cause an objectively reasonable fear of physical injury
in the future); Christensen v. Carter/Bosket, 261 Or App 133,
142-43, 323 P3d 348 (2014) (noncommunicative portion of
the respondent’s conduct during a particular incident—
shaking his clenched fists at the petitioner—did not give
rise to objectively reasonable alarm); Brown, 249 Or App at
588-89 (concluding that alarm caused by the respondent’s
act of spraying the petitioner with garden hose was not
objectively reasonable and, thus, not a qualifying contact,
where there was no evidence indicating a threat of physi-
cal injury and behavior was not “inexplicable” given the cir-
cumstances between the parties); Reitz v. Erazo, 248 Or App
700, 706, 274 P3d 214 (2012) (the respondent pushing the
petitioner approximately 10 times over two years while both
were shopping did not provide basis for objectively reason-
able alarm). Similarly here, the evidence is insufficient to
show that respondent’s August 7 conduct would reasonably
cause apprehension or fear resulting from the perception
of a threat of physical injury, rather than merely a threat
162 T. M. E. v. Strope
of annoyance or harassment. Her behavior is, rather, cor-
rectly viewed as “hyperbole, rhetorical excess, and impo-
tent expressions of anger or frustration” not intended to be
addressed by the issuance of an SPO. Van Buskirk v. Ryan,
233 Or App 170, 176, 225 P3d 118 (2010) (internal quotation
marks omitted). The “legislature has not authorized trial
courts to issue SPOs for unwanted contact that is unset-
tling, unusual, or unpleasant.” Huber v. Landolt, 267 Or App
753, 760-61, 341 P3d 175 (2014).
In sum, petitioner offered two potential contacts to
support his request for an SPO. The first one does not qual-
ify as an unwanted contact that would cause a reasonable
person in the same circumstances to be alarmed as that
term is understood in the SPO context. Because we conclude
that it does not, the record contains insufficient evidence
of repeated unwanted contacts, regardless of whether the
second encounter could qualify. See ORS 163.738(2)(a)(B)
(requiring repeated unwanted contacts for issuance of an
SPO); ORS 163.730(7) (“ ‘Repeated’ means two or more
times.”); Valerio v. Valerio, 224 Or App 265, 271, 197 P3d
1124 (2008) (declining to analyze the sole remaining inci-
dent in light of the two-contacts requirement); Outlaw v.
Richey, 301 Or App 18, 33, 456 P3d 348 (2019) (also declin-
ing to analyze the sole remaining incident in light of the
two-contacts requirement).
The trial court erred in issuing the permanent SPO.
Reversed.