Hayes Oyster Co. v. Dulcich

• Decision Date: 04 October 2000
• Citation: 170 Or. App. 219,12 P.3d 507
• Parties: HAYES OYSTER CO., an Oregon corporation, Appellant, v. Frank D. DULCICH, an individual; Dulcich, Inc., an Oregon corporation; Pacific Seafood Co., Inc., an Oregon corporation; and Pacific Oyster Co., an Oregon corporation, Respondents.
• Court: Oregon Court of Appeals

12 P.3d 507

170 Or. App. 219

HAYES OYSTER CO., an Oregon corporation, Appellant, v.Frank D. DULCICH, an individual; Dulcich, Inc., an Oregon corporation; Pacific Seafood Co., Inc., an Oregon corporation; and Pacific Oyster Co., an Oregon corporation, Respondents.

(952016; CA A95904)

Court of Appeals of Oregon.

Argued and Submitted June 10, 1999.

Decided October 4, 2000.

Richard S. Pope, Portland, argued the cause for appellant.With him on the briefs was Newcomb, Sabin, Schwartz & Landsverk.

William H. Walters, Portland, argued the cause for respondents.With him on the briefs were John F. Neupert and Miller, Nash, Wiener, Hager & Carlsen.

Before EDMONDS, Presiding Judge, and KISTLER and BREWER, Judges.

KISTLER, J.

The jury awarded plaintiffHayes Oyster Co. $45,400 in compensatory damages because defendants, Frank Dulcich, Pacific Sea Food, Inc., and Pacific Oyster, Inc.,¹ had converted Hayes' oyster shell pile.The jury did not award Hayes punitive damages.On appeal, Hayes raises 24 assignments of error.Its assignments focus on the proper measure of damages for conversion, evidence on punitive damages, instructions concerning the Port of Garibaldi, and two summary judgment rulings.We affirm the judgment in part, reverse it in part, and remand.

Beginning in 1947, Hayes Oyster Co. leased land from the Port of Garibaldi on which Hayes' oyster cannery was located.Oyster shell is a by-product of oyster canning, and, for years, the Port had given Hayes permission to store its oyster shell on public land next to the cannery.The old shell is used to seed new oysters.²Over the years, the shell pile next to Hayes' oyster cannery grew.At trial, Hayes' expert testified that by 1991 the shell pile had grown to almost 310,000 cubic feet, or 329,627 bags of oyster shell, although the parties disagree about how much of the shell Hayes had placed there.

By the 1990s, Sam Hayes, the head of the business, had grown old, and Hayes' business was languishing.While Hayes' business was in decline, Dulcich's business was on the rise.As part of his business expansion, Frank Dulcich wanted to enter the Tillamook Bay oyster business.He tried to buy Hayes' assets, but he and Sam Hayes could not agree on a price.At some point, Dulcich learned that Hayes was not making timely payments on 300 acres of oyster lands that Hayes had bought from Bob Olson.³In 1991, Dulcich had his attorneys draw up a new agreement between Sam Hayes and Bob Olson.The new agreement reduced Hayes' monthly payments but made it easier to foreclose if Hayes defaulted.Hayes signed the new agreement, and Olson assigned the agreement to Dulcich.When Hayes failed to make a payment, Dulcich declared a default and foreclosed.Dulcich and Hayes settled the foreclosure action and entered into a release.

In June 1991, the Port of Garibaldi notified Hayes that it was terminating the lease for Hayes' oyster cannery because Hayes had failed to pay real property taxes.Hayes paid those taxes, and in August 1991 the Port and Hayes entered into a new lease.That lease does not include a promise that the Port would dredge a channel to provide access to Hayes' cannery and shell pile.Before the new lease was signed, the Port Commissioners stated in the minutes of one of their meetings that they believed that it would be impossible to provide water access to Hayes' cannery.

In November 1991, the Port manager wrote Hayes and asked that two sheds and other equipment be removed from the Port's land.That letter did not specifically mention the shell pile.Other letters followed.In August 1992, Hayes protested when Dulcich began to take oyster shell from the pile.Dulcich did not respond directly, but, in September 1992, the Port sent a letter to Sam Hayes, telling him that the Port considered the buildings and property that had not been removed from the Port's land to be "abandoned property" that was "now [the] property of the Port of Garibaldi, the land owner."That letter specifically identified oyster shell as part of the property that had been abandoned.Soon afterwards, the Port gave Dulcich permission to remove the oyster shell.In June 1993, the Port terminated its latest lease with Hayes because Hayes had failed to maintain the cannery building and to provide insurance coverage.

In 1995, Hayes filed this action against defendants alleging conversion, tortious interference with contract, tortious interference with economic relations, a claim for declaratory judgment, and ejectment.Defendants moved for summary judgment on all of Hayes' claims.The trial court granted defendants' summary judgment motion on all Hayes' claims except for its conversion claim.After the trial court's ruling on summary judgment, Hayes amended its complaint to allege lost profits as part of the damages on its conversion claim.

Before trial, defendants filed a motion in limine to exclude evidence that defendants sold seeded oyster shell to overseas buyers for approximately $30 per bag.Although the trial court granted that motion, one of Hayes' witnesses offered evidence at trial, without objection, that seeded shell sells for between $16 and $20 per bag and that it costs about $4 per bag to seed the shell.Hayes' witness also testified that Hayes had planned to sell some seeded shell to raise capital for its oyster business.He did not say, however, how much seeded shell Hayes intended to sell.The witness concluded that Hayes suffered lost profits of $2.7 million as a result of the loss of its unseeded shell.

At the conclusion of Hayes' case, defendants moved for a directed verdict on Hayes' lost profits claim.Defendants argued that Hayes had not offered any evidence of how much seeded shell it planned to sell.The trial court granted defendants' motion and instructed the jury that Hayes' lost profits claim had been withdrawn.⁴The jury returned a verdict in Hayes' favor finding that each of the three defendants, Frank Dulcich, Pacific Oyster, and Pacific Sea Food, had converted Hayes' oyster shell and that the converted shell was worth $45,400.The jury also found that each defendant had taken Hayes' shell "with [the] belief that it had permission to do so" or that each defendant"otherwise was entitled to take the shell."The jury did not award Hayes any punitive damages.

Before discussing Hayes' assignments of error, we address two preliminary matters.First, in their brief, defendants renew their argument that most of Hayes' assignments of error should be dismissed because Hayes accepted the benefits of the judgment.Before defendants filed their brief, we denied their motion to dismiss on that ground, as well as their motion to reconsider our ruling.Although we did not give defendants leave to renew their motion in their brief, defendants have done so.

Defendants' renewed motion is inconsistent with ORAP 7.15(3).That rule provides that "[i]f any motion other than a challenge to the court's jurisdiction is denied before submission of the case, the motion may not be resubmitted without leave of the court in the order on the motion."The plain language of the rule precludes defendants from renewing their motion unless it is either jurisdictional or we gave them leave to resubmit it.SeeState ex rel. SOSCF v. Williams,168 Or.App. 538, 541 n. 3, 7 P.3d 655(2000);State ex rel Juv. Dept. v. Black,101 Or.App. 626, 628 n. 1, 792 P.2d 1225(1990).⁵Because neither exception applies here, defendants' first argument is not properly before us.

Defendants advance a second argument.They argue that we should not consider Hayes' assignments of error because Hayes has not set out the pertinent portions of the record as part of its assignments of error.SeeORAP 5.45(4)(explaining what should be included as part of an assignment of error).In its reply brief, Hayes notes that its opening brief referred to the court's rulings in its statement of facts.In its view, that is enough.Alternatively, Hayes has set out the pertinent portions of the record in an appendix to its reply brief.Had Hayes not included the pertinent portions of the record in the appendix, we might be inclined to grant defendants' motion.The requirement that an appellant set out the pertinent portions of the record in its opening brief is not a meaningless formality.Rather, the information the rules require enables the court and the opposing party to identify the specific ruling the appellant assigns as error, determine whether an objection was properly preserved, and understand the basis for the trial court's ruling.⁶In this case, the pertinent portions of the record that Hayes included in its reply permit us to make those determinations.We accordingly turn to the merits of Hayes' various assignments of error.

Hayes' first three assignments of error center on the proper measure of damages for conversion.Hayes' third assignment of error is directed at the trial court's ruling granting defendants' pretrial motion in limine.Defendants had moved to exclude evidence that they had sold seeded oyster shells to an overseas buyer for approximately $30 per bag.Defendants argued that the price for seeded shells was not admissible to prove the market value of unseeded shells unless there was no market for unseeded shells.Hayes' response before the trial court was two-pronged.Hayes recognized that before Barber v. Motor Investment Co.,136 Or. 361, 367, 298 P. 216(1931), the court had required proof that there was no market for the converted property before evidence of alternative measures of value could be introduced.Hayes, however, argued that Barber overruled that precondition to admitting alternative measures of value and that, after Barber, the "pertinent inquiry is [simply] whether [the] damages awarded affords just compensation to the owner wrongfully deprived of his property."In Hayes' view, any evidence is now admissible if it is relevant to determining "just compensation" for the loss...