Ailes v. Portland Meadows, Inc.
Decision Date | 10 March 1993 |
Parties | Jerald E. AILES, Appellant, v. PORTLAND MEADOWS, INC., an Oregon corporation, Respondent. A8704-02489; CA A60011. |
Court | Oregon Court of Appeals |
George B. Altenberg, Jr., Santa Rosa, CA, and Mark E. Griffin and Griffin & McCandlish, Portland, for appellant.
John R. Faust, Jr., and Schwabe, Williamson & Wyatt, Portland, for respondent.
Before RIGGS, P.J., and EDMONDS and DE MUNIZ, JJ.
DE MUNIZ, Judge.
This appeal is before us on remand from the Supreme Court. 312 Or. 376, 823 P.2d 956 (1991). Plaintiff, a professional jockey, brought this negligence action after he was injured while riding at defendant's racetrack. The jury returned a verdict in his favor but, before judgment was entered, defendant filed a motion for judgment n.o.v., arguing that the action was barred by the Statute of Limitations. ORS 12.110(1). Defendant's motion to dismiss on that ground had been denied before trial. Defendant had pled the Statute of Limitations as an affirmative defense but did not raise the defense as a ground for a directed verdict.
The trial court granted defendant's post-trial motion, and plaintiff appealed. In his opening brief, plaintiff's only assignment was that the court erred in granting judgment "on the ground that plaintiff had not timely commenced [the] action." However, in his reply brief, plaintiff asserted for the first time that, by failing to raise the Statute of Limitations as a basis for its motion for directed verdict, defendant had "waived" its right to move for judgment n.o.v. on that ground.
We agreed. Relying on Stark v. Henneman, 250 Or. 34, 36, 440 P.2d 364 (1968), we reasoned that the issue asserted in the reply brief raised a question concerning the trial court's authority to act, because a motion for a directed verdict is a condition precedent to the rendering of a judgment n.o.v. 104 Or.App. 115, 118, 799 P.2d 203 (1990); ORCP 63(1). We concluded, therefore, that we had to address that issue, despite plaintiff's failure to preserve it or to raise it properly on appeal. We held that the trial court had erred in entering the judgment n.o.v. because defendant had not raised the Statute of Limitations defense in his motion for a directed verdict. Plaintiff petitioned for review in the Supreme Court. The court did not review our holding on the merits. It said:
The court disagreed with our rationale that we were compelled to address the error, although it had not been preserved. It said that, although the trial court may have exceeded its procedural authority by rendering a judgment n.o.v. on a ground not raised in the motion for directed verdict, that action, although error and therefore voidable on appeal if properly raised, was not void. 312 Or. at 383, 823 P.2d 956. The court said:
Accordingly, the court remanded the case for us to decide, with that understanding of the law, whether we should have reached the "perceived error."
Under State v. Brown, 310 Or. 347, 800 P.2d 259 (1990), the Supreme Court's opinion in this case and ORAP 5.45, an error that has not been properly preserved or raised on appeal may nonetheless be considered by the appellate court in its discretion if the error is one of law that is apparent on the face of the record. An error is apparent if it is one that is obvious, not reasonably in dispute. 312 Or. at 376, 823 P.2d 956. Here, the claimed error is that the court entered a judgment n.o.v. on an issue that had not been preserved by a motion for directed verdict. The second paragraph of the language that we have quoted from the Supreme Court's opinion can be read to suggest that it is an open question whether the trial court's act in granting judgment n.o.v. was error. That determination would be determinative here, because it would require the conclusion that the claimed error is not apparent on the face of the record, as it presents a question reasonably in dispute. However, in view of the Supreme Court's express statement that it was giving no opinion as to the merits of our decision and its remand to us to decide whether the claimed error is apparent on the face of the record, we conclude that it must not have intended to decide that question for us.
We conclude that there is little dispute that a judgment n.o.v. may be granted only "when a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant." ORCP 63; Stark v. Henneman, supra, 250 Or. at 36, 440 P.2d 364; Barr v. Linnton Plywood Ass'n, supra. Additionally, we conclude that the error is apparent on the face of the record, because we need not go outside the record to determine that the court erred by considering the Statute of Limitations as a basis for granting the judgment n.o.v., when it had not been raised by a motion for directed verdict.
Nonetheless, in the exercise of our discretion, we decline to consider the unpreserved error. The issue of whether the Statute of Limitations had run, or was tolled under ORS 12.155, was raised and litigated by the parties in a motion to dismiss at the very outset of the case. From the very beginning, plaintiff knew the issue was in the case and could be raised again at different stages of the case, including post-trial motions. Plaintiff was not in any way taken by surprise or blind sided by defendant's post-trial motion raising the Statute of Limitations. The "ends of justice" in this case are not thwarted by our exercise of discretion not to consider the error. Ailes v. Portland...
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