Ailes v. Portland Meadows, Inc.

• Court: Supreme Court of Oregon
• Writing for the Court: VAN HOOMISSEN
• Citation: 823 P.2d 956,312 Or. 376
• Parties: Jerald E. AILES, Respondent on Review, v. PORTLAND MEADOWS, INC., an Oregon corporation, Petitioner on Review. CC A8704 02489. CA A60011; SC S37666.
• Decision Date: 12 December 1991

Page 956

823 P.2d 956 312 Or. 376 Jerald E. AILES, Respondent on Review,
v.
PORTLAND MEADOWS, INC., an Oregon corporation, Petitioner on Review. CC A8704 02489.
CA A60011; SC S37666. Supreme Court of Oregon,
In Banc. Argued and Submitted March 6, 1991.
Decided Dec. 12, 1991.

Page 957

[312 Or. 377] John R. Faust, Jr. of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the petition for petitioner on review.

Mark E. Griffin, Portland, argued the cause and filed the response to the petition for respondent on review.

Before PETERSON, ^* C.J., and CARSON, ^** GILLETTE, VAN HOOMISSEN, FADELEY, and GRABER, JJ.

[312 Or. 378] VAN HOOMISSEN, Justice.

The issue in this case is whether the Court of Appeals erred when it decided this case on an issue that was neither preserved in the trial court nor raised in appellant's opening brief on appeal. We hold that it did err and, accordingly, reverse.

Plaintiff, a professional jockey, was injured while riding at defendant's racetrack. His complaint alleged that his injuries were caused by defendant's negligence.

Before trial, defendant moved to dismiss the complaint on the ground that the statute of limitations, ORS 12.110(1), barred the claim. ¹ The motion was denied.

At trial, defendant moved for a directed verdict at the conclusion of plaintiff's evidence and again at the close of all the evidence. ORCP 60. It based both motions on grounds unrelated to ORS 12.110(1). Both motions were denied. After the jury returned a verdict in plaintiff's favor, defendant moved for judgment notwithstanding the verdict (n.o.v.) on the grounds that it previously had asserted in its directed verdict motions. The motion was denied.

Three weeks later, defendant again moved for judgment n.o.v. and, in the alternative, for a new trial. Among other things, it argued that plaintiff's claim was time-barred under ORS 12.110(1). Basing its ruling solely on defendant's statute of limitations argument, the trial court granted defendant's motion for judgment n.o.v.

Plaintiff appealed. He argued that his action was timely, because the statute of limitations had been tolled. In his opening brief in the Court of Appeals, plaintiff asserted:

"There is a single issue on appeal: did the trial court err by ruling that plaintiff had not timely commenced this action, or [312 Or. 379] was the limitations period tolled, pursuant to ORS 12.155(2), as a result of advance payments made by defendant to plaintiff[?]" (Emphasis added.)

However, in his reply brief, plaintiff also argued that the trial court erred, because defendant had "waived" its right to move for judgment n.o.v. on the statute of limitations ground by not raising that issue in its motion for directed verdict at the close of all the evidence. Plaintiff relied on ORCP 63 A. ² See Vancil v. Poulson, 236 Or. 314, 320, 388 P.2d 444 (1964) (deciding under

Page 958

predecessor statute to ORCP 63 A that a motion for judgment n.o.v. may be not be granted upon grounds not previously asserted in the motion for judgment n.o.v.). Plaintiff had not made that additional argument in the trial court or in his opening brief in the Court of Appeals.

The Court of Appeals did not reach the tolling issue raised by plaintiff's assignment of error. Ailes v. Portland Meadows, 104 Or.App. 115, 119 n. 3, 799 P.2d 203 (1990). Instead, the court decided the case on plaintiff's waiver argument, notwithstanding plaintiff's failure to preserve that issue in the trial court or to raise it in his opening brief on appeal. 104 Or.App. at 118, 799 P.2d 203. The court held that a motion for a directed verdict or its equivalent is a condition precedent to the exercise of a trial court's power to render a judgment n.o.v., and that in this case defendant's failure to move for a directed verdict on ORS 12.110(1) grounds "is not jurisdictional, but makes the [trial] court's allowance of a judgment n.o.v. error."

"The fact that plaintiff's [waiver] argument was not made in the trial court could not give the [trial] court authority to grant the motion for judgment n.o.v., if it otherwise lacked that authority." Ailes v. Portland Meadows, Inc., supra, 104 Or.App. at 118, 799 P.2d 203.

Because defendant had failed to raise the ORS 12.110(1) issue by motion for a directed verdict or its equivalent, the Court of Appeals concluded that the trial court had no "authority" to [312 Or. 380] grant defendant's motion for judgment n.o.v. on that ground. Accordingly, the court reversed the judgment and remanded for reinstatement of the jury verdict and entry of judgment thereon.

On review, we have no occasion to agree or disagree with the Court of Appeals' holding on the merits, that the trial court erred in granting a motion for judgment n.o.v. on a ground not previously asserted in a motion for a directed verdict at the close of all the evidence. The dispositive issue before this court is whether the Court of Appeals properly considered whether it should reach the perceived error. For the reasons discussed below, we hold that it did not.

Generally, before an appellate court may address whether a trial court committed an error in any of the particulars of the trial of a case, the adversely affected party must have preserved the alleged error in the trial court and raised the issue on appeal by an assignment of error in its opening brief. ORAP 5.45(2); ³ State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975); see also Shields v. Campbell, 277 Or. 71, 77, 559 P.2d 1275 (1977) (preservation of error generally required).

Plaintiff's waiver argument was not made in the trial court and, thus, was not preserved. Moreover, plaintiff did not raise the issue by assignment of error and made no argument concerning waiver in his opening brief on appeal; the issue arose only in his reply brief. Defendant, therefore, had no opportunity to submit a written response to plaintiff's waiver argument and, thus, the Court of Appeals did not have the benefit of such written response. ⁴

Page 959

We conclude that the [312 Or. 381] issue of waiver was not properly preserved at trial or raised on appeal. ⁵ Notwithstanding that conclusion, our inquiry as to whether the Court of Appeals should have reached that issue is not at an end.

An appellate court's decision to consider an unpreserved or unraised error is not per se erroneous. See State v. Kessler, 289 Or. 359, 371 n. 17, 614 P.2d 94 (1980) (failure to preserve an error does not automatically preclude appellate review). An appellate court may, for example, consider errors not properly preserved or raised if they are "errors of law apparent on the face of the record." ORAP 5.45(2); see also State v. Brown, 310 Or. 347...