Bergman v. Holden
| Decision Date | 19 May 1993 |
| Citation | 857 P.2d 217,122 Or.App. 257 |
| Parties | Ethel BERGMAN, Respondent, v. Stephen E. HOLDEN; Malcolm Massey and Wayne Massey, dba M & M Logging Company; Merlin Smith, Defendants, and Art Lewis, Appellant. 87-2115; CA A72538. . On Respondent's Petition for Reconsideration Filed |
| Court | Oregon Court of Appeals |
Michael B. Mendelson, Portland, for petition.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
Plaintiff petitions the Supreme Court for review of our decision reversing the trial court, which had entered judgment in plaintiff's favor. 118 Or.App. 530, 848 P.2d 141 (1993). We treat the petition as one for reconsideration, allow it, modify our opinion and adhere to it as modified.
Plaintiff argues that we erred in concluding that defendant could not be found liable under Restatement (Second) Torts sections 876(a) and (b), 1 as the trial court found, because
According to plaintiff, there is evidence from which a reasonable factfinder could conclude that defendant did, in fact, know of the trespass, thus making defendant liable under either section of the Restatement. That evidence includes testimony that defendant knew that some of the logs he hauled were from plaintiff's property, that defendant was related to some of the other defendants by marriage and that defendant turned over to those other defendants the money he received for hauling logs. Plaintiff argues that, in ignoring all of that evidence, we have incorrectly substituted our view of the facts for that of the trial court. 2
At the outset, we note that the arguments plaintiff now makes were not raised in her original brief. Plaintiff argued only that defendant was liable under the Restatement because defendant hauled unbranded logs, not because any other evidence supported a finding that he knew about the trespass. Ordinarily, a contention not raised in the original brief will not be considered on reconsideration. Kentner v. Gulf Ins. Co., 298 Or. 69, 74, 689 P.2d 955 (1984). We nevertheless consider the argument, because the evidence now cited indicates that at least one of our statements concerning the factual record was incorrect. In reviewing that evidence, we must affirm the trial court's decision if there is any evidence to support it. Illingworth v. Bushong, 297 Or. 675, 694, 688 P.2d 379 (1984).
Contrary to our original opinion, there is evidence that defendant knew that at least some of the logs originated on plaintiff's property. That fact, however, does not change our conclusion that defendant could not be found liable under the Restatement. Section 876(b) requires knowledge that the conduct of the other defendants constituted a breach of some duty to plaintiff. That defendant may have known that the logs he hauled came from plaintiff's property or anyone else's is not evidence that he knew that the logs were taken from that property illegally. Similarly, the evidence that defendant was related to the other defendants and that he returned the proceeds of the sale to them does not support the inference that defendant knew of their unlawful conduct.
For the same reasons, the evidence is insufficient to support a finding of liability under section 876(a). That section requires evidence that defendant committed a tortious act in concert with the other defendants or...
To continue reading
Request your trial
-
Vasquez v. Double Press Mfg., Inc.
...rule that a contention not raised on the original hearing will not be considered on a rehearing—judicial economy"); Bergman v. Holden , 122 Or.App. 257, 260, 857 P.2d 217, rev. den. , 318 Or. 170, 867 P.2d 1384 (1993) (considering arguments raised for the first time in a petition for recons......
-
Granewich v. Harding
...are concerned because they owed no fiduciary duty to plaintiff. Our prior case law illustrates the principle. In Bergman v. Holden, 122 Or.App. 257, 857 P.2d 217 (1993), the issue was whether the defendant could be held liable for logs obtained as a result of a trespass on the plaintiff's p......
-
Snow Mountain Pine, Ltd. v. Tecton Laminates Corp.
...v. Gulf Ins. Co., 298 Or. 69, 74, 689 P.2d 955 (1984); Leiser v. Sparkman, 281 Or. 119, 122, 573 P.2d 1247 (1978); Bergman v. Holden, 122 Or.App. 257, 260, 857 P.2d 217, rev. den. 318 Or. 170 (1993). Moreover, it strikes me as risky business to attempt to construe complex and highly technic......
-
Simington Gardens, LLC v. Rock Ridge Farms, LLC
...statutory construction that we review for legal error. Bergman v. Holden , 118 Or. App. 530, 848 P.2d 141, adh'd. to on recons. , 122 Or. App. 257, 857 P.2d 217, rev. den. , 318 Or. 170, 867 P.2d 1384 (1993). The first step in our analysis is to examine the statutory texts. ORS 105.810 prov......