Kennedy v. Wheeler

CourtSupreme Court of Oregon
Citation341 P.3d 728,356 Or. 518
Docket NumberCA A149019,SC S061836.,CC CV080512
PartiesAmber KENNEDY, Petitioner on Review, v. Kelsey C. WHEELER, Respondent on Review, and Katie Hall, Defendant.
Decision Date11 December 2014

Mark McDougal, Kafoury & McDougal, Portland, argued the cause and filed briefs for the petitioner on review.

Michael T. Stone, Brisbee & Stockton, LLC, Hillsboro, argued the cause and filed the briefs for respondent on review.

Kathryn H. Clarke, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.

Opinion

WALTERS, J.

Oregon law requires that [i]n civil cases three-fourths of the jury may render a verdict.” Article VII (Amended), section 5(7), of the Oregon Constitution ; ORCP 59 G(2). In this negligence case, defendant admitted liability, and a jury of twelve was asked to decide the issues of causation and damages. The jury completed a special verdict form and unanimously agreed that defendant had caused damage to plaintiff. At least three-fourths of the jurors (i.e., nine of twelve) also agreed to award plaintiff specific amounts of economic and noneconomic damages. However, the same nine jurors did not agree on the amounts of economic and noneconomic damages awarded. The trial court accepted the verdict and entered judgment for plaintiff, but the Court of Appeals reversed. Kennedy v. Wheeler, 258 Or.App. 343, 309 P.3d 196 (2013). For the reasons that follow, we conclude that the jury's verdict met the requirements of Oregon law. We reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The facts relevant to the issue before us are procedural and uncontested. Defendant drove through a stop sign and collided with a car in which plaintiff was a passenger.1 Plaintiff filed a negligence action, which was tried to a jury of twelve. The trial court instructed the jury that defendant had “admitted liability so that the only issue to be decided by you * * * is the amount of the damages to be awarded to the plaintiff.” The court defined both economic and noneconomic damages for the jury and then instructed it that, [i]f you find that the plaintiff is entitled to recover economic damages, you must award some noneconomic damages.” The court told the jury that it should answer the questions on the verdict form “according to the directions on the form and all the instructions of the court.” The court explained that [a]t least the same nine jurors must agree on each answer unless the verdict form instructs you otherwise as to a particular question.”

As completed by the jury, the verdict form provided as follows:

The court clarified that the number “12” in response to Question 1 indicated that all twelve jurors had agreed on that response. The court then read the verdict form to the parties and asked the presiding juror whether at least nine jurors had answered Question 2; she answered, “yes, sir.” Defendant asked that the jury be polled. When the court asked each juror whether the vote of $65,386 in economic damages was “your vote,” ten jurors said “yes.” Jurors one and three said “no.” When the court asked whether the vote of $300,000 was “your vote,” nine jurors said “yes”; jurors two, three, and twelve said “no.”

The court indicated that it would accept the verdict and thanked the jurors for their service. Defendant then asked the court to wait, stating, “I don't think there's nine agreeing, if I counted right.” The court stated that it counted ten jurors agreeing on economic damages and nine agreeing on noneconomic damages. The following colloquy then ensued:

Defendant: I think there were only the same eight, however.
Court: Pardon?
Defendant: I think there was [sic ] only eight that were in agreement.
Court: No, there was [sic ] nine out of the twelve that voted for the unanimous verdict.”

The trial court then discharged the jury. After the jury was discharged, defendant took exception for the record. At that point, defendant explained more fully:

Defendant: So there are on—looking for nine common people on economic and noneconomic, I add that up as only being eight people who agree.
Court: I agree with you that there were only eight that answered yes to the same—for the economic and noneconomic damages that answered the same way, and if your theory is that the same nine had to vote on both, then that will have to go up for the appeal because I don't read the statute that—
Defendant: That's my objection, so—
Court: Okay. Anyway, I've accepted the verdict.”

Defendant then filed a written objection to entry of judgment and a motion for new trial, arguing that the verdict was invalid under Article VII (Amended), section 5(7), of the Oregon Constitution and ORCP 59 G(2), both of which provide that [i]n civil cases three-fourths of the jury may render a verdict.” After a hearing, the trial court denied the motion based on two independent “findings.” First, the court found that defendant had failed to make a timely objection to the jury's verdict. Second, the court found that the jurors' vote on causation was unanimous, that at least nine of those twelve jurors had agreed on the measure of economic damages awarded, and that at least nine of those twelve jurors had agreed on the measure of noneconomic damages awarded. The court concluded that the law did not require the same nine jurors to agree on the amounts of economic and noneconomic damages awarded and that the jurors' concurrence on causation and damages was therefore sufficient. The court then entered a general judgment providing that trial of the case had resulted in a verdict for plaintiff against defendant. The judgment included a monetary award for the total of the economic and noneconomic damages that the jury had awarded—$365,386.

Defendant appealed, assigning error to the court's receipt of the verdict and entry of judgment.2 Defendant argued, as she had below, that the verdict was unconstitutional and violated ORCP 59 G(2), that the verdict was therefore invalid, and that the judgment based on that verdict must be reversed.

In her answering brief, plaintiff asserted both procedural and substantive arguments. She contended that defendant had failed to object to the verdict with sufficient clarity before the jury was dismissed and that the issue was therefore unpreserved. She also argued that Oregon law does not require that the same nine jurors agree on economic and noneconomic damages. Defendant argued that the court could and should reach the merits of the substantive issue that the case presented.

The Court of Appeals rejected plaintiff's preservation argument, but focused on a different procedural issue—the “law of the case doctrine—that the court concluded resolved the case in defendant's favor. The court reasoned as follows:

“Here, the court instructed the jury that at least the same nine jurors were required to agree on each answer on the verdict form. As we have explained, that required at least the same nine jurors to agree on the amounts of both types of damages. When the court instructed the jury, apparently without objection, that at least the same nine jurors were required to agree on the amounts of both types of damages, that instruction became the law of the case. [Congdon v. Berg, 256 Or.App. 73, 80–81, 299 P.3d 588 (2013) ]; see also Fulton Ins. v. White Motor Corp., 261 Or. 206, 223 n. 5, 493 P.2d 138 (1972) (when neither party objected to jury instruction, it became the law of the case); Mays v. Vejo, 224 Or.App. 426, 430–31, 198 P.3d 943 (2008) (same).
“Thus, we conclude that, in this case, at least the same nine jurors were required to agree on each answer in the verdict form, including the amounts of economic and noneconomic damages. It is undisputed that only the same eight jurors agreed on economic and noneconomic damages. As a result, the verdict violated Article VII (Amended), section 5(7), of the Oregon Constitution, and the court erred in entering a general judgment based on that verdict.”

258 Or.App. at 349–50, 309 P.3d 196.

On review in this court, defendant characterizes the Court of Appeals decision as a decision on subconstitutional grounds and adopts its “law of the case analysis.3 We begin with that procedural issue and then take up the substantive question whether Oregon law requires that the same nine jurors agree on the specific sums of economic and noneconomic damages awarded.

I. LAW OF THE CASE

This court has described the “law of the case doctrine as precluding relitigation of an appellate court holding after remand and on subsequent appeal:

“It is a general principle of law and one well recognized in this state that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.”

State v. Pratt, 316 Or. 561, 569, 853 P.2d 827 (1993) (quoting Simmons v. Wash. F.N. Ins. Co., 140 Or. 164, 166, 13 P.2d 366 (1932) ). The policies underlying that doctrine “essentially parallel those served by the doctrines of stare decisis and res judicata * * *, i.e., consistency of judicial decision, putting an end to litigation of matters once determined, and preserving the court's prestige.” Koch v. So. Pac. Transp. Co., 274 Or. 499, 511–12, 547 P.2d 589 (1976) (citing Allan D. Vestal, Law of the Case: Single–Suit Preclusion, 1967 Utah L Rev. 1 (1967)).

In the law review article cited in Koch, the author explains that “law of the case is a concept that may arise in a number of different contexts “in which a ruling or decision has been made in a case and the same legal problem arises a second time in the same case.” Vestal, 1967 Utah L Rev. at 4. In this case, defendant argues that that concept applies not only to preclude relitigation of an appellate court decision on remand...

To continue reading

Request your trial
12 cases
  • Miller v. State
    • United States
    • Oregon Court of Appeals
    • June 12, 2019
    ...of the case’ is best reserved for use in the context in which a party seeks to relitigate an appellate decision." Kennedy v. Wheeler , 356 Or. 518, 531, 341 P.3d 728 (2014). That is because "[u]se of the term," to refer to every ruling the trial court has made "may confuse rather than clari......
  • State v. Avila-Nava
    • United States
    • Oregon Supreme Court
    • December 26, 2014
  • Rains v. Stayton Builders Mart, Inc.
    • United States
    • Oregon Court of Appeals
    • January 4, 2018
    ...the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.' " Kennedy v. Wheeler , 356 Or. 518, 524, 341 P.3d 728 (2014) (quoting State v. Pratt , 316 Or. 561, 569, 853 P.2d 827 (1993) ). Here, no appellate court has made a binding "ruli......
  • Gozzi v. W. Culinary Inst., Ltd.
    • United States
    • Oregon Court of Appeals
    • January 21, 2016
    ...on a legal question and the question is raised in the same court. Poet, 208 Or.App. at 450, 144 P.3d 1067 : But see Kennedy v. Wheeler, 356 Or. 518, 531, 341 P.3d 728 (2014) ("The term ‘law of the case’ is best reserved for use in the context in which a party seeks to relitigate an appellat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT