Ailes v. Portland Meadows, Inc.

• Citation: 799 P.2d 203,104 Or.App. 115
• Parties: Gerald E. AILES, Appellant, v. PORTLAND MEADOWS, INC., an Oregon corporation, Respondent. A8704-02489; CA A60011.
• Decision Date: 05 December 1990
• Court: Court of Appeals of Oregon

Page 203

799 P.2d 203

104 Or.App. 115

Gerald E. AILES, Appellant, v. PORTLAND MEADOWS, INC., an Oregon corporation, Respondent.

A8704-02489; CA A60011.

Court of Appeals of Oregon.

Argued and Submitted May 25, 1990.

Decided Oct. 17, 1990.

Reconsideration Denied Dec. 5, 1990.

George B. Altenberg, Jr., Santa Rosa, Cal., argued the cause for appellant. With him on the briefs were Mark E. Griffin and Griffin & McCandlish, Portland.

John R. Faust, Jr., Portland, argued the cause for respondent. With him on the brief was Schwabe, Williamson & Wyatt, Portland.

Before RIGGS, P.J., and EDMONDS and DeMUNIZ, JJ.

EDMONDS, Judge.

Plaintiff appeals from a judgment n.o.v. ORCP 63. The trial court ruled that plaintiff's action is barred by the Statute of Limitations. ORS 12.110(1). ¹ We reverse, because the trial court was without authority to enter the judgment.

Plaintiff, a professional jockey, was injured while racing a horse at defendant's race track. The complaint alleged that defendant was negligent and that, as a result, plaintiff suffered personal injuries. Defendant's pretrial motion to dismiss "the entire case based on the statute of limitations" was denied. At trial, defendant moved for a directed verdict at the conclusion of plaintiff's evidence, ORCP 60, on grounds unrelated to ORS 12.110(1). The motion was denied. At the close of all the evidence, defendant moved for a directed verdict on the "same grounds" as the first motion and, again, the motion was denied. That same day, immediately after the jury returned a verdict in favor of plaintiff, defendant orally moved for a judgment n.o.v. on the grounds stated in the directed verdict motions. That motion was also denied.

Three weeks later, defendant filed a written motion for judgment n.o.v. and, in the alternative, for a new trial, arguing, inter alia, that plaintiff's action was barred by ORS 12.110(1). A hearing on the motion was held, and the trial court granted defendant's motion for judgment n.o.v. on the basis of ORS 12.110(1), but denied the motion for judgment n.o.v. and a new trial on the other grounds raised by defendant.

Plaintiff argues that defendant waived its right to raise the Statute of Limitations by motion for judgment n.o.v., because it did not first raise it by motion for a directed verdict. Plaintiff did not make that argument to the trial court and did not assert it on appeal until his reply brief. As the Supreme Court has said:

"[A] party who makes no objection at all [to the trial court] cannot be heard to complain to [an appellate] court. A party owes the trial court the obligation of a sound, clear and articulate motion, objection or exception, so as to permit the trial judge a chance to consider the legal contention or to correct an error already made." Shields v. Campbell, 277 Or. 71, 77, 559 P.2d 1275 (1977).

See also ORAP 5.45(2); ORAP 5.70(1); Hendrix v. McKee, 281 Or. 123, 125 n. 2, 575 P.2d 134 (1978). ORCP 63 A provides:

"When a motion for a directed verdict, made at the close of all the evidence, which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require."

Notwithstanding that plaintiff failed to preserve his argument that defendant waived its right to raise the Statute of Limitations argument under ORCP 63 A, a motion for a directed verdict or its equivalent is a "condition precedent to the exercise of the court's power to render a judgment n.o.v." Stark v. Henneman, 250 Or. 34, 36, 440 P.2d 364 (1968); Owens v. Haug, 61 Or.App. 513, 516 n. 3, 658 P.2d 523, rev. den. 294 Or. 792, 662 P.2d 728 (1983); Huston v. Trans-Mark Services, 45 Or.App. 801, 804 n. 3, 609 P.2d 848, rev. den. 289 Or. 587 (1980). We understand Henneman to hold that failure to move for a directed verdict before moving for a judgment n.o.v. is not jurisdictional, but makes the court's allowance of a judgment n.o.v. error. The fact that plaintiff's argument was not made in the trial court could not give the court authority to grant the motion for judgment n.o.v., if it otherwise lacked that authority. ² See Micek v. LeMaster, 71 Or.App. 361, 365, 692 P.2d 652 (1984), rev. den. 298 Or. 773, 697 P.2d 556 (1985). Because defendant failed to raise the limitations issue by motion for a directed verdict or its equivalent, the trial court had no authority to grant the motion for judgment n.o.v. on that ground. ³

Reversed and remanded for reinstatement of jury verdict and entry of judgment thereon.

DeMUNIZ, Judge, dissenting.

The majority decides this case on an issue not properly preserved in the court below or properly raised in this court. I, therefore, dissent.

Before trial, defendant moved to dismiss the complaint contending that the action had not been commenced within the two year Statute of Limitations. That motion was denied. At trial, defendant moved for a directed verdict at the end of plaintiff's case and again at the end of all the evidence. Both motions were denied. Defendant did not raise the Statute of Limitations in either motion. After trial, defendant moved for judgment n.o.v. on the grounds stated in the motion for directed verdict. That motion was denied. Three weeks later, defendant again moved for judgment n.o.v. and, in that motion, raised the Statute of Limitations. The court granted the motion, concluding that, because the summons was not served until 61 days after the filing of the complaint, the action had not been commenced within two years of the injury. ¹

In this court, plaintiff's only assignment of error states:

"The trial court erred in granting judgment to defendant on the ground that plaintiff had not timely commenced this action. Plaintiff is entitled to the benefit of the tolling provisions of ORS 12.155(2) where plaintiff had received advance payments after the injury occurred and was not notified of the expiration of the statute of limitations, the complaint was filed within two years of the date of injury, but the summons was not served and the action was not commenced until sixty one days after the date of the filing of the action."

Plaintiff did not argue in the trial court that defendant had "waived" the limitations issue by failing to raise the issue in the motions for directed verdict. Moreover, it was not until plaintiff's reply brief that we were first alerted to the argument. ²

In Shields v. Campbell, 277 Or. 71, 559 P.2d 1275 (1977), the Supreme Court said:

"[A] party who makes no objection at all [to the trial court] cannot be heard to complain to [an appellate] court. A party owes the trial court the obligation of a sound, clear and articulate motion, objection or exception, so as to permit the trial judge a chance to consider the legal contention or to correct an error already made." 277 Or. at 77, 559 P.2d 1275.

ORAP 5.45(2) states, in part:

"No matter assigned as error will be considered on appeal unless it was preserved in the lower court and assigned as error in the party's opening brief."

Only in unusual circumstances will we consider an issue not preserved below or properly assigned as error in this court. Shields v. Campbell, supra, 277 Or. at 77, 559 P.2d 1275; State v. Rivas, 100 Or.App. 620, 622, 788 P.2d 464, rev. den. 310 Or. 122, 794 P.2d 794 (1990).

In spite of those obvious defects in appellate procedure, the majority reverses the judgment n.o.v., because a motion for directed verdict is a "condition precedent to the exercise of the court's power to render a judgment." See Stark v. Henneman, 250 Or. 34, 36, 440 P.2d 364 (1968). The majority has determined to reach the substantive issue because of the proviso in ORAP 5.45(2) that allows us to "consider errors of law apparent on the face of the record." That rule gives us discretionary power to consider legal errors that appear on the face of the record. The Supreme Court, in State v. Brown, 310 Or. 347, 798 P.2d 656 (1990), has now indicated that, in order to consider an issue under ORAP 5.45(2): the error must be one of law; the legal point must be obvious and not reasonably in dispute; and the facts comprising the error must be irrefutable, that is, they must appear on the face of the record and must not require the court to choose between competing inferences. Here, the legal error identified by the majority is not "apparent;" instead, as illustrated in Barr v. Linnton Plywood Ass'n, 223 Or. 541, 352 P.2d 596 (1960), the legal point is one which is in reasonable dispute.

In Barr, the defendant failed to move for a directed verdict before seeking--and receiving--a judgment n.o.v. On appeal, the Supreme Court refused to consider the sufficiency of the order allowing the judgment:

"ORS 18.140(1) permits a judgment notwithstanding the verdict inter alia when a 'motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant * * *.' In this case defendant did not move for a directed verdict. However, the plaintiff did not make an issue to the trial court nor in this court that the order allowing the judgment n.o.v. was deficient because it was based upon the failure to allow the motion for involuntary nonsuit rather than upon a failure to allow a motion for a directed verdict as provided by ORS 18.140(1). We will not, therefore, consider the sufficiency of the order as entered. ' * * * [I]t is only in rare cases that this court will notice an alleged erroneous ruling of the trial court to which no exception was taken or objection made by the appellant.' State v. Avent (1956) 209 Or 181, 183, 302 P2d 549. There is no reason for us to consider the sufficiency of the order sua sponte." 223 Or. at 542, 352 P.2d 596.

Barr presented the identical legal issue with respect to preservation of error that we face here. Barr noted the error, yet...