Bowlin v. Buchanan Schmid LLC

No. 1065 November 4, 2026 405 IN THE COURT OF APPEALS OF THE STATE OF OREGON Rhonda BOWLIN, Plaintiff-Respondent, v. BUCHANAN SCHMID LLC, an Oregon limited liability company, and William F. Buchanan, ESQ., Defendants-Appellants. Deschutes County Circuit Court 23CV26141; A184019 Beth M. Bagley, Judge. Argued and submitted February 18, 2026. Julie A. Smith argued the cause for appellant. Also on the briefs was Cosgrave Vergeer Kester LLP. Mark McDougal argued the cause for respondent. Also on the brief was Kafoury & McDougal. Before Egan, Presiding Judge, Pagán, Judge, and Walters, Senior Judge. WALTERS, S. J. Affirmed. 406 Bowlin v. Buchanan Schmid LLC WALTERS, S. J. In this action for wrongful initiation of a civil pro- ceeding against an attorney and his law firm (attorney), attorney appeals from a limited judgment denying his spe- cial motion to strike under Oregon’s anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes, ORS 31.150 and ORS 31.152. Here, to withstand such a motion, plaintiff was required to present substantial evidence to sup- port a prima facie case, ORS 31.150(4), and attorney argues that the trial court erred in determining that plaintiff met that burden. We agree with the trial court and affirm. The following facts are not disputed. An Uber pas- senger (passenger) assaulted his Uber driver (plaintiff), and, in connection with the assault, passenger was charged with various crimes. Nevertheless, attorney, representing passenger, filed a tort action against plaintiff (the under- lying proceeding) alleging, in three claims for relief, that plaintiff had battered passenger, defamed him, and inten- tionally caused him emotional distress. After plaintiff rejected passenger’s settlement offers, plaintiff filed coun- terclaims against passenger (for assault, battery, and inten- tional infliction of emotional distress), passenger pleaded no contest to a single charge of fourth-degree assault, and, in a stipulated judgment, passenger dismissed his complaint against plaintiff with prejudice and without costs. Plaintiff then filed this action against attorney, alleging that attorney had wrongfully initiated the under- lying proceeding that passenger had dismissed. Attorney responded with a special motion to strike under ORS 31.150(2). Because it was undisputed that plaintiff’s claim arose out of one of the protected activities described in ORS 31.150(2), to defeat attorney’s special motion to strike, plain- tiff had the burden “to establish that there is a probability that [she] will prevail on the claim by presenting substan- tial evidence to support a prima facie case.” ORS 31.150(4). To satisfy that burden, plaintiff was required to submit “sufficient evidence from which a reasonable trier of fact could find that the plaintiff met [her] burden of production.” Cite as 354 Or App 405 (2026) 407 Handy v. Lane County, 360 Or 605, 622-23, 385 P3d 1016 (2016). We review the trial court’s decision for legal error, viewing the evidence in the light most favorable to plaintiff. Plotkin v. SAIF, 280 Or App 812, 815, 385 P3d 1167 (2016), rev den, 360 Or 851 (2017). To establish a prima facie case for wrongful initia- tion of a civil proceeding (wrongful initiation),1 plaintiff was required to adduce evidence from which a factfinder could find the following elements: (1) attorney commenced and prosecuted a judicial pro- ceeding against plaintiff; (2) that underlying proceeding was terminated in plaintiff’s favor; (3) attorney did not have probable cause to prosecute the underlying proceeding; (4) attorney acted with malice in initiating the under- lying proceeding; and (5) plaintiff incurred damages. See Mohabeer v. Farmers Ins. Exchange, 318 Or App 313, 318 n 3, 508 P3d 37, rev den, 370 Or 212 (2022) (setting out elements of a claim for wrongful initiation). On appeal, attorney contends that the evidence adduced by plaintiff was insufficient to demonstrate three of those five require- ments. Specifically, attorney contends that the evidence was insufficient to permit a reasonable factfinder to find that (a) attorney lacked probable cause to prosecute the underlying proceeding; (b) attorney acted with malice in initiating the underlying proceeding; and (c) the underlying proceeding terminated in plaintiff’s favor. Before we begin our analysis of the first of those issues, however, we take up a foundational question: whether plaintiff was required to establish that attorney 1 The tort “wrongful initiation of a civil proceeding” is also called “wrongful use of a civil proceeding.” E.g., Perry v. Rein, 187 Or App 572, 577-78, 71 P3d 81 (2003) (using “wrongful use of a civil proceeding” and “wrongful initiation of a civil proceeding” interchangeably). Although plaintiff’s complaint styles the claim as one for “wrongful use,” rather than one for “wrongful initiation,” we use “wrongful initiation” in this opinion, both because it appears to be the more common formulation in our case law and because, in our view, it better expresses the nature of the claim. 408 Bowlin v. Buchanan Schmid LLC lacked probable cause with respect to each claim that attor- ney brought against her in the underlying proceeding, or if it was sufficient for her to demonstrate that attorney lacked probable cause with respect to any one of the claims attor- ney filed. I. PLAINTIFF NEED NOT DEMONSTRATE LACK OF PROBABLE CAUSE ON ALL CLAIMS Attorney argues that “[a] litigant has probable cause to initiate a proceeding as long as there is a nonfrivo- lous basis for initiating the ‘proceeding,’ not any one partic- ular claim.” Attorney argues, as a categorical matter, that if there was probable cause to bring any one of the claims in the underlying proceeding, plaintiff’s claim for wrongful initiation must fail. Plaintiff sees it differently. She contends that “prob- able cause for one claim does not establish probable cause on all claims” and that the issue of probable cause “must be evaluated claim-by-claim.” That contested issue appears to be an open ques- tion in Oregon, although both this court and the Oregon Supreme Court have rendered decisions that are inconsis- tent with the categorical rule for which attorney advocates. In Perry v. Rein, 187 Or App 572, 577, 71 P3d 81 (2003), the plaintiff in the wrongful initiation action had con- ceded that the defendant had probable cause to assert one of the claims in the underlying proceeding. Nevertheless, we decided that the trial court had erred in granting sum- mary judgment to the defendant. Id. at 583. And, in Gowin v. Heider, 237 Or 266, 386 P2d 1 (1963), adh’d to on reh’g, 237 Or 266, 391 P2d 630 (1964), a malicious prosecution action alleging the wrongful initiation of a criminal case, the Supreme Court decided that the absence of probable cause to bring one among a number of criminal charges was sufficient to support the plaintiff’s tort action.2 Id. at 281. 2 On that issue, the United States Supreme Court is in accord. In Chiaverini v. City of Napoleon, Ohio, 602 US 556, 144 S Ct 1745, 219 L Ed 2d 262 (2024), the Court discussed common-law actions for malicious criminal prosecution and said that, in those actions, the plaintiff must “show that an official initiated a charge without probable cause,” but the plaintiff “did not have to show that every charge brought against him lacked an adequate basis.” Id. at 557 (emphasis in original). Cite as 354 Or App 405 (2026) 409 In DeLaurentis v. City of New Haven, 220 Conn 225, 597 A2d 807, 821 (1991), the Supreme Court of Connecticut quoted Gowin and applied its reasoning in the civil context, holding that probable cause as to one claim in the underlying civil proceeding did not necessarily defeat a claim for “vexatious suit” (i.e., wrongful initiation) where other claims in the underlying civil proceeding lacked prob- able cause. Id. at 254-55. In explaining its reasoning, the court concisely observed that “[i]f a civil plaintiff had prob- able cause to assert one cause of action but joined to that claim ten others that he knew to be groundless, the victim called upon to defend himself against the ten groundless claims would not suffer less because one good claim was included among them.” Id. at 253. The California Supreme Court is in accord. In Crowley v. Katleman, 8 Cal 4th 666, 676, 881 P2d 1083 (Cal 1994), as modified (Nov 30, 1994), the court considered com- peting policy interests—i.e., the right to resort to court on the one hand, and providing redress to individuals harmed by abuse of the courts on the other—and explained its view that the balance tips toward providing redress to individ- uals when civil claims are groundless and brought with malice:3 “[U]ntrammeled access to the courts promotes social peace by providing the citizenry with an alternative to potentially dangerous self-help methods of redressing pri- vate grievances. But it is not an unmixed blessing: many of our courts are burdened by overcrowded dockets and long delays, and all litigation exacts both public and pri- vate costs. We are willing as a society to incur those bur- dens and costs when the litigation is well founded or, even when ultimately unsuccessful, was at least initiated with The Court followed that reasoning in reversing the Sixth Circuit’s categorical rule barring a Fourth Amendment malicious prosecution claim if any charge is valid and holding that, “the bringing of one valid charge in a criminal proceeding should not categorically preclude a claim based on the Fourth Amendment.” Id. at 563. 3 A leading treatise describes the competing policy interests underlying the permissible scope of wrongful initiation claims as “protecting the right to resort to court, analogous to, if not grounded in, the First Amendment’s right to petition government” and the recognition that “wrongful civil suits can destroy a liveli- hood, devastate a business, or chill debate on public issues.” Dan B. Dobbs, et al., Wrongful Civil Litigation and Tactics, The Law of Torts § 592 (2026 ed). 410 Bowlin v. Buchanan Schmid LLC probable cause and without malice. In those circumstances the balance tips in favor of the policy of encouraging judi- cial access. That policy becomes counterproductive, how- ever, when it operates to promote litigation that is ground- less and motivated by malice; such litigation has no place in our judicial system, and we are therefore unwilling to bear its costs. After careful consideration, we see no reason to reach a different result when the litigation in question is the assertion of baseless and malicious grounds of liability in a single lawsuit: in both instances the balance tips in favor of the policy of making whole the individuals harmed by such abuse of our courts.” 8 Cal 4th at 694. Other state courts take the opposing view. See Perryman v. Vill. of Saranac Lake, 41 AD3d 1080, 1082, 839 NYS2d 290 (NY App Div 2007) (“[I]nasmuch as the defen- dants had probable cause to assert some of their causes of action, the plaintiffs could not maintain a malicious prosecu- tion claim.” (Internal quotation marks omitted; emphasis in original.)); Heberlie v. Harriman Oil Co., LLC, 497 SW3d 886, 890 (Mo Ct App 2016) (to satisfy the “lack of probable cause” element, “the plaintiff must show a lack of probable cause for each claim”). And, attorney argues, so does the Restatement (Third) of Torts, which provides that, to assert an action for wrongful initiation, a plaintiff “ordinarily” must show “that the entire original proceeding was unsupported by probable cause.” Restatement (Third) of Torts: Liab. for Econ. Harm § 25 comment f (2020). The Restatement explains that that general rule “may be justified by observing that once a civil suit is brought for good cause, the burden on the defendant is substantial and is increased only marginally by the addi- tion of other claims that are not as well founded.” Id. But the Restatement also recognizes that the general rule may have exceptions, noting that, in “an extreme case, * * * a court may reach a different conclusion, as when the supported and unsupported claims were unrelated, or the supported claim was minor and appears to have been an excuse to add other claims brought without foundation and for an improper purpose.” For the following reasons, we reject attorney’s argu- ment for a categorical rule that, if there is probable cause for Cite as 354 Or App 405 (2026) 411 one claim in the underlying proceeding, a claim for wrong- ful initiation will not lie even if there is not probable cause for one or more other claims in the underlying proceeding and they are brought with malice.4 First, as noted, in Oregon, in an action for malicious prosecution, a plaintiff need not show that the prosecutor brought the entire underlying proceeding without probable cause. See Gowin, 237 Or at 281. And, in Oregon, a “[w]rong- ful initiation of a civil proceeding is the civil counterpart to a malicious prosecution action.” Erlandson v. Pullen, 45 Or App 467, 471, 608 P2d 1169 (1980). See also Alvarez v. Retail Credit Ass’n, 234 Or 555, 259, 381 P2d 499 (1963) (describ- ing wrongful initiation claim as “wrongfully prosecut[ing] a civil action”). Second, although we agree that, in some cases, as the Restatement says, “once a civil suit is brought for good cause, the burden on the defendant is substantial and is increased only marginally by the addition of other claims that are not as well founded,” that proposition does not hold true in all cases. As the court in Crowley observed, the bur- den of litigating claims depends on “such diverse factors as how many grounds are asserted, how different are the facts that must be proved to support and defeat them, how exten- sive is the discovery necessary to develop those facts, how many witnesses and documents are required to make that proof—even, indeed, how thoroughly the parties prepare their case and how vigorously they present and oppose it at trial.” 8 Cal 4th at 694. Ultimately, with deference to Oregon precedent and for the reasons stated in Crowley, we reject attorney’s proposed categorical rule and conclude that having proba- ble cause for a single claim of many in the underlying pro- ceeding does not necessarily defeat a subsequent claim for 4 We also reject both parties’ arguments asking us to decide the question before us based on the phrasing that our courts have used to describe the elements of a wrongful initiation claim. For example, attorney notes that in Alvarez v. Retail Credit Ass’n, 234 Or 255, 259-60, 381 P2d 499 (1963), the Oregon Supreme Court phrased the requirement of lack of probable cause as the “absence of probable cause to prosecute the action,” while plaintiff notes that, in that same case, the court described the malice element as “the existence of a primary purpose other than that of securing an adjudication of the claim.” (Emphases added.) In those and other cases, our courts were not deciding the question now before us, and we do not consider their phrasing of the elements as particularly helpful to its resolution. 412 Bowlin v. Buchanan Schmid LLC wrongful initiation. We recognize that there may be circum- stances in which a claim brought with probable cause and a claim brought without probable cause are so closely related that the viability of the action must be determined as a whole. See, e.g., DeLaurentis, 220 Conn at 255-56 (consid- ering in a civil case whether certain “charges” that lacked probable cause were “logically severable” from those that had probable cause in determining the viability of a “vexa- tious suit” claim). But we need not consider that issue here. In this case, we consider only the categorical argument that attorney makes, and, for the reasons given, we reject that argument. Having so concluded, we turn to the first of the claims against plaintiff in the underlying proceeding— the claim against plaintiff for battery—and the question whether plaintiff adduced evidence from which a reasonable trier of fact could find that attorney wrongfully initiated that claim. As noted, attorney argues that plaintiff’s evi- dence was insufficient to establish three elements of wrong- ful initiation, and we begin with the requirement that attor- ney lacked probable cause to bring the battery claim. II. PLAINTIFF MET HER BURDEN TO DEMONSTRATE THAT ATTORNEY LACKED PROBABLE CAUSE FOR BATTERY CLAIM On appeal, attorney contends that plaintiff did not adduce sufficient evidence of lack of probable cause to bring a battery claim against her on behalf of passenger for two distinct reasons: (a) attorney submitted a declaration that, in attorney’s view, should be deemed to establish probable cause as a matter of law; and (b) in all events, plaintiff’s evi- dence does not permit a reasonable inference that attorney lacked probable cause. We consider each of those contentions in turn. A. Attorney’s declaration does not establish probable cause as a matter of law. In support of his special motion to strike, attor- ney proffered a declaration stating that he “believed that there were valid factual and legal bases” to bring the claims against plaintiff and that his belief was, in part, “[b]ased Cite as 354 Or App 405 (2026) 413 upon the representations of [his] client.” Attorney contends that those statements must be taken as true, and that, as a matter of law, they established that attorney acted with probable cause. Attorney asserts that that conclusion is nec- essary to protect the sanctity of the attorney-client relation- ship and access to the courts. Attorney’s argument is that lawyers who initiate civil proceedings based on the represen- tations of their clients must be able to defend against claims for wrongful initiation without revealing the substance of those representations or the steps taken to evaluate the veracity of their clients’ representations. Thus, attorney sub- mits, lawyers who testify that they determined, based on the representations of their clients, that there was a nonfriv- olous basis for initiating the proceeding, must be protected against an action for wrongful initiation even if they had reason to believe that the representations of their clients were false. Attorney contends that, in this case, based solely on his declaration, the trial court was required to conclude that he had probable cause to file passenger’s claim against plaintiff for battery and, consequently, to grant his special motion to strike. In support of that position, attorney invokes the absolute privilege that attorneys have for statements made in the course of, or incident to, judicial or quasi-judicial pro- ceedings and asks us to infer from the existence of that priv- ilege that a declaration like the one that attorney filed in this case defeats a claim for wrongful initiation. Previously, however, we rejected the contention that that “absolute privilege” provides attorneys with immunity from suit for wrongful initiation. Mantia v. Hansen, 190 Or App 412, 417, 79 P3d 404 (2003). In Mantia, we explained that that “abso- lute privilege” is based on a public policy of “ ‘securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.’ ” Id. at 418 (quoting Restatement (Second) of Torts § 586 comment a (1977)). And we said that although one might conclude that that privilege would bar any claim against a lawyer based on the prosecu- tion of judicial or quasi-judicial proceedings, such a conclu- sion would be incorrect. Id. at 419-20. We explained that a claim for wrongful initiation is a well-established exception to that principle, and for good reason: 414 Bowlin v. Buchanan Schmid LLC “Given the very nature of the ‘wrongful initiation’ cause of action, absolute privilege is inapposite. If a plaintiff can show that, in representing a client in a judicial or quasi- judicial proceeding, an attorney acted ‘maliciously’ and without ‘probable cause’—virtually the obverse of a quali- fied, good-faith privilege—the attorney is liable for wrong- ful initiation of a civil proceeding.” Id. at 420. Thus, in this case, attorney does not argue that he cannot be sued for wrongful initiation, but his argument— that the court was required to take his averments as true and legally sufficient to defeat plaintiff’s claim—is nigh on to an argument for immunity. And, significantly, in wrong- ful initiation cases against lawyers, to determine the suf- ficiency of a plaintiff’s evidence to show a lack of probable cause, this court looks beyond a lawyer’s stated belief that there were factual and legal bases for initiating an action to the relevant facts. See, e.g., Roop v. Parker Northwest Paving, Co., 194 Or App 219, 239-44, 94 P3d 885 (2004). A lawyer has probable cause to bring a civil action only if the lawyer’s subjective belief that he or she has a good chance of prevailing is objectively reasonable. Id. at 238. We reject attorney’s argument that, in this case, we need not examine plaintiff’s evidence but can decide, based on his declaration alone, that he acted with probable cause. B. Plaintiff’s evidence supports a rational inference that attorney lacked probable cause to prosecute a battery claim. We turn then to the question of whether, in response to attorney’s special motion to strike, plaintiff produced evi- dence that attorney lacked probable cause to bring passen- ger’s battery claim against her—either evidence that attor- ney did not have a subjective belief that passenger’s claim was tenable or that attorney’s subjective belief was not objec- tively reasonable. Id. In this case, plaintiff focused on the latter issue and argued that she had produced prima facie evidence that no reasonable attorney could believe that pas- senger had a legally viable battery claim against plaintiff. Viewed in the light most favorable to plaintiff, the evidence that she produced would have allowed for the Cite as 354 Or App 405 (2026) 415 following findings: Passenger was drunk and, after plaintiff picked him up to drive him home, he passed out in the back seat. After some time, passenger woke up and asked where he was. Plaintiff replied that she was taking him home, and plaintiff asked if he wanted to get out. “No,” passenger said, “I want to hang out with you.” Plaintiff responded that she was just passenger’s Uber driver and was just taking him home. “No,” passenger said, “you are not,” and asked why it was taking so long. Plaintiff again said she was taking pas- senger home. Passenger then grabbed plaintiff by the hair and plaintiff began screaming, begging passenger, repeat- edly, to let go of her. When passenger did not, plaintiff tased and maced him, but he still held on to plaintiff. Plaintiff then hit passenger over the head with a club, dragged him out of the car, left him and drove off, calling 911 to report that a man had just attacked her. An officer arrived at the scene and passenger was transported to the hospital, where passenger was confrontational with the officer and nurses. Among the evidence produced by plaintiff was a recording obtained from her car’s dashcam. The dashcam video is dark, and it is difficult to discern the actions of the parties, but what the parties said is audible and, viewed in the light most favorable to plaintiff, plaintiff’s fear is pal- pable. A police officer who wrote the report of the incident described that plaintiff’s screaming in the audio as remind- ing him of videos where officers had been attacked and were fighting for their lives. In the trial court, plaintiff argued that that evidence established that, even if attorney had a subjective belief that plaintiff had committed battery against passenger, that belief was not objectively reasonable. Plaintiff argued that the only conclusion a reasonable factfinder could reach was that passenger had committed battery against plaintiff and that plaintiff had used reasonable force to resist. In response to the evidence submitted by plaintiff, attorney did not rest solely on his declaration that, in deter- mining the relevant facts, he had relied on representations by passenger (i.e., his client). He also proffered a photograph showing passenger sitting on the side of the road immedi- ately after the incident with his head split open and blood 416 Bowlin v. Buchanan Schmid LLC dripping down his face. And the record contains subsequent photographs showing passenger with a black eye and sta- ples in his head, and statements by plaintiff that, passenger claims, raise questions about plaintiff’s credibility.5 Attorney argued that that evidence demonstrated that his subjective belief that passenger had a viable claim against passenger was objectively reasonable and the trial court was required to find that attorney had probable cause to file that claim. The trial court agreed with plaintiff that she had met her burden of production; that is, that she had pro- vided prima facie evidence that attorney had filed the claim against plaintiff for battery of passenger without probable cause. The court found that, prior to filing the complaint, attorney was aware of the existence of the dash cam audio and video recording, contemporaneous statements by plain- tiff, passenger, and law enforcement, and photographs taken by law enforcement as part of the criminal investigation of passenger. The court found that, with that information, attorney would have been aware of plaintiff’s affirmative defenses to a battery claim, “[n]amely, but not exclusively, self-defense.” The court stated that the evidence of those affirmative defenses “comes compellingly and indisputably from” the dashcam audio and video recording. The court concluded that the truth of those affirmative defenses was not “reasonably assailable” and “defeated the battery claim.” “Accordingly,” the court said, attorney “acted without prob- able cause when he initiated the lawsuit against [plaintiff] alleging battery.” On appeal, attorney contends that the trial court erred in concluding that the dashcam recording “indisput- ably” demonstrates that attorney lacked probable cause. As we understand his position, attorney contends that the facts known to attorney and the reasonable inferences from those facts could persuade a jury that passenger did no more than touch plaintiff to get her attention and that it was plain- tiff who was the aggressor, or that plaintiff used an amount of force on passenger that was unreasonable. And, further that, at a minimum, because there is a factual dispute about 5 Attorney did not disclose what passenger had told him about what hap- pened on the night in question. Cite as 354 Or App 405 (2026) 417 what happened on the night in question as reflected in the evidence, attorney necessarily had an objectively reasonable basis for filing the battery claim against plaintiff. To plaintiff’s way of thinking, if there was con- flicting evidence about whether attorney had a reasonable factual basis for a battery claim against plaintiff, then the existence of that dispute means that she met her burden of production and the trial court was correct to deny passen- ger’s special motion. Plaintiff cites Erlandson and specifi- cally the court’s statement: “What must ultimately be determined is whether defen- dant had a reasonable basis for his suit, i.e., a reasonable belief that plaintiff defrauded him. Defendant testifies that he did; plaintiff disputes this. Patently, there is a factual issue that must be submitted to the jury if the other ele- ments of the cause of action have been made out.” 45 Or App at 478. Although that excerpt from Erlandson could be understood in the way that plaintiff contends, a more com- plete analysis of our decision in Erlandson is necessary to understand its meaning. As relevant here, Erlandson was an action for wrongful initiation by one non-lawyer against another. Id. at 470. In a prior lawsuit one business partner— Troutman—had alleged that another—Erlandson—had devised a scheme to defraud him out of his interest in the landholdings of the partnership, including by making cer- tain specific false and fraudulent misrepresentations. Id. at 476. After that lawsuit had terminated in Erlandson’s favor, Erlandson brought an action for wrongful initiation against Troutman, and the trial court entered a directed verdict for Troutman, deciding that there was no evidence that Troutman did not have a reasonable belief that Erlandson had defrauded him. Id. at 474. Erlandson appealed. Id. at 470. We reversed, explaining that Troutman had testi- fied Erlandson had made statements that were false and Erlandson had testified that he had not, creating factual issues about the statements on which the fraud claim was based. We quoted Alvarez, for the “firmly established rule” that the question of probable cause was a question of law and that, if none of the underlying facts were in dispute, the 418 Bowlin v. Buchanan Schmid LLC court could decide the case without the intervention of the jury, but that if the underlying facts were in dispute, the case “ ‘must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not con- stitute probable cause.’ ” Erlandson, 45 Or App at 475 (quot- ing Alvarez, 234 Or at 261).6 In the case before us, we said, the factual issue about what had been said and whether the statements that were made were false were facts that should have been submitted to the jury. Id. at 478. It was the jury’s role to determine the facts on which the legal determination would rest. Accord DeHarpport v. W. E. J., 270 Or App 681, 685, 348 P3d 1192 (2015) (if the facts about what happened in the underlying incident are disputed, it is up to a jury to decide what occurred); Restatement (Third) of Torts: Liab. for Econ. Harm § 25 comment g (2020) (existence of probable cause is a question for the court, but if that determination depends on factual questions, those questions may be sub- mitted to a jury). In a wrongful initiation action against a lawyer, the roles of the court and jury are the same. The question whether the lawyer had an objectively reasonable basis to institute the action is ultimately legal question. But, as we explained in Roop, a court may not determine that an attor- ney had probable cause as a matter of law if there is “evi- dence from which a jury could find facts or draw inferences 6 The “firmly established rule” quoted above from Erlandson is consistent with subsequent case law from this court. See, e.g., DeHarpport v. W. E. J., 270 Or App 681, 685, 348 P3d 1192 (2015) (“Whether a defendant has probable cause to initiate a proceeding is a question of law for the court only if the facts or infer- ences are undisputed. If the facts are disputed, then a jury must resolve those disputed facts, and the court must instruct the jury on what facts constitute prob- able cause for the plaintiff’s claim.”). But we both emphasize and caution that, notwithstanding the seeming breadth of the statement in Erlandson and similar statements in other cases, there is another possible procedure trial courts may use in Oregon when ruling on “probable cause” when the facts are in dispute. As explained in Gustafson v. Payless Drug Stores, 269 Or 354, 357-58, 525 P2d 118 (1974), “[a]nother possible procedure [in determining whether probable cause exists] is to settle the factual disputes by having the jury answer special inter- rogatories,” then “the trial court would decide whether the plaintiff had probable cause based upon the facts found by the jury in answer to the interrogatories.” Id. at 358. That approach may have some advantages over the approach described in Erlandson, as “instructing on the issue of probable cause is very difficult when the jury can find a number of different fact combinations.” Id. at 357. Cite as 354 Or App 405 (2026) 419 requiring the legal conclusion that [the attorney’s] subjective belief was not objectively reasonable.” 194 Or App at 241. In a wrongful initiation action, including a wrong- ful initiation action against a lawyer, there may be instances in which the underlying facts are undisputed, and, in those instances, a court can decide the legal question of whether those facts establish that the lawyer acted reasonably with- out additional factfinding. See id. at 244 (trial court did not err in granting directed verdict on plaintiffs’ wrongful ini- tiation claims); Perry, 187 Or App at 581-82 (concluding that “no reasonable lawyer could believe that the facts known to defendants at the time of the filing of the claims, if proven, could result in plaintiff’s liability” for a particular claim). But, just as in Erlandson and DeHarpport, that will not always be the circumstance. In a wrongful initiation action against a lawyer, when a jury could find facts or draw infer- ences that would require the legal conclusion that the law- yer’s decision to file the action was not objectively reasonable, then the court cannot rule in favor of the lawyer as matter of law; the existence of an unresolved factual dispute about the underlying events precludes a legal conclusion that the lawyer had probable cause to bring the action. That said, there are a couple of caveats to keep in mind. First, in considering whether there is a dispute as to the underlying facts, the facts that are relevant are those that are known to the lawyer or, in appropriate cir- cumstances, that could have been learned by investigation. See Roop, 194 Or App at 242 (whether an attorney has an obligation to investigate “depends on the facts of each case, specifically, whether the facts create the appearance that the client may not be providing the attorney with all nec- essary information”); Restatement (Third) of Torts: Liab. for Econ. Harm § 25 (2020). And secondly, a lawyer may be mis- taken about the underlying facts or the law, but, neverthe- less, may be reasonable in initiating a claim. Resolution of that question will depend on whether the mistaken belief was reasonable, based on what the lawyer knew or should have known when initiating proceedings. See Restatement (Third) of Torts: Liab. for Econ. Harm § 22 (2020); see also Roop, 194 Or App at 238, 243 (citing Restatement (Second) 420 Bowlin v. Buchanan Schmid LLC of Torts § 674 (1977) for the proposition that “the question is not whether the litigant is correct in believing that the claim is tenable, but whether that belief is reasonable” (emphases added)). Returning, then, to the case at hand, we agree with attorney that the facts about what happened on the night in question are disputed. Having viewed the evidence ourselves, we can understand why the trial court reached a contrary conclusion, but we do not agree that that was the only conclusion a reasonable factfinder could reach when viewing the evidence. However, that does not mean that the trial court erred in denying attorney’s special motion to strike. As we have explained, the fact that a jury could see the evidence from attorney’s perspective does not mean that the trial court was required to conclude, as a matter of law, that attorney necessarily had probable cause to initiate a battery action against plaintiff. To the contrary, in that circumstance, the trial court was precluded from deciding, as a matter of law, that attorney had probable cause to file the battery claim. The legal question of whether attorney had probable cause depended on the factual question of what happened on the night in question. And, because a jury could find that what happened on the night in question comported with plaintiff’s view of events, the trial court could not reach the legal conclusion necessary to grant attorney’s motion— that attorney necessarily had probable cause to bring the battery action. Thus, the trial court was correct in deciding that plaintiff submitted sufficient evidence of lack of proba- ble cause to meet her burden of production on that element of plaintiff’s claim. III. PLAINTIFF MET HER BURDEN TO DEMONSTRATE THAT ATTORNEY INITIATED BATTERY CLAIM WITH AN IMPROPER PURPOSE Attorney’s next argument is that plaintiff did not adduce sufficient evidence that, in filing passenger’s battery action against attorney, attorney acted with malice. Citing Bachmeier v. Tuttle, 195 Or App 83, 91, 96 P3d 871 (2004), attorney contends that to prove that a lawyer acted with malice, a plaintiff must produce evidence in addition to evi- dence that the attorney acted without probable cause; that Cite as 354 Or App 405 (2026) 421 is, a plaintiff must produce independent evidence that the attorney acted with a primary purpose other than securing adjudication of the claim. Plaintiff accepts that definition of malice and con- tends that she presented evidence from which a reasonable juror could conclude that attorney filed the battery claim against plaintiff not to adjudicate that claim but to coerce plaintiff into entering into a civil compromise and avoid the state’s criminal prosecution of passenger. Plaintiff explains that the “civil compromise doctrine contemplates” situations where a crime victim files a lawsuit against the criminal suspect, alleging injury. If that criminal defendant provides satisfaction for the harm, a court has broad discretion to determine whether to dismiss the criminal charges.7 Here, however, plaintiff adduced facts from which a jury could find that the criminal suspect (passenger) filed a nearly $1 million-dollar tort action against the crime victim (plain- tiff) and then offered to pay the victim (plaintiff) $25,000 to resolve the action he had filed. After plaintiff did not accept the offer, passenger pleaded no contest to fourth- degree assault for assaulting plaintiff and the other crim- inal charges against him were dismissed. Passenger then presented plaintiff with a proposed stipulated order of dis- missal “without prejudice.” Plaintiff rejected that stipula- tion but ultimately signed a stipulated order sent to plaintiff by passenger dismissing the civil action with prejudice and without costs. Relying on that evidence, plaintiff contends that attorney filed passenger’s battery action not to have the claim adjudicated, but instead, with a purpose to coerce a civil compromise and to use it to obtain dismissal of the criminal charges against passenger. To analyze the sufficiency of that evidence, we must first take up attorney’s argument that two of the letters on which plaintiff relies, as described below, are settlement communications that were inadmissible under OEC 408. The trial