Marcoulier v. Umsted

• Decision Date: 28 May 1991
• Citation: 805 P.2d 140,105 Or.App. 260
• Parties: Don MARCOULIER, Appellant, v. Jerry UMSTED, Respondent. Jerry UMSTED, Third-Party-Plaintiff-Respondent, v. Don MARCOULIER and Felix Marcoulier, Third-Party-Defendants-Appellants, and Harvey Steen, Defendant. 37726; CA A48775.
• Court: Oregon Court of Appeals

Page 140

805 P.2d 140

105 Or.App. 260

Don MARCOULIER, Appellant, v. Jerry UMSTED, Respondent.

Jerry UMSTED, Third-Party-Plaintiff-Respondent, v. Don MARCOULIER and Felix Marcoulier, Third-Party-Defendants-Appellants, and Harvey Steen, Defendant.

37726; CA A48775.

Court of Appeals of Oregon.

Submitted on Remand Dec. 26, 1990.

Decided Jan. 23, 1991.

Reconsideration Denied April 24, 1991.

Review Denied May 28, 1991.

David Gernant, Portland, for appellant and third-party defendants-appellants.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

The Supreme Court vacated our decision in this appeal, 102 Or.App. 61, 793 P.2d 881 (1990), and remanded it to us for reconsideration in the light of State v. Olmstead, 310 Or. 455, 800 P.2d 277 (1990). Marcoulier v. Umsted, 310 Or. 546, 800 P.2d 299 (1990). Olmstead may be inconsistent with our conclusion that, because the Marcouliers (appellants) made no offer of proof, they had not preserved the contention in their second assignment that the court erred by excluding evidence that Umsted failed to mitigate damages. The trial court excluded the evidence because of its conclusion that appellants were required to and had not pleaded mitigation of damages or avoidance of consequences as an affirmative defense.

The Supreme Court reasoned in Olmstead that an offer of proof is not necessary to preserve an issue for appeal when the asserted error does not relate primarily to the admissibility of particular evidence, but involves an underlying legal ruling that results in the exclusion of the evidence as a consequence. Thus, the court held that the defendant did not have to make an offer of proof in support of his insanity defense in order to preserve for appellate review the trial court's ruling that the defense was unavailable as a matter of law to the DUII and DWS offenses with which he was charged. The court gave two reasons:

"One purpose of an offer of proof is to assure that appellate courts are able to determine whether the ruling was erroneous. State v. Affeld, [307 Or. 125, 128, 764 P.2d 220 (1988) ]. When the trial court rules that a party may not present any evidence on a defense, on the ground that the defense is unavailable as a matter of law, that purpose is fulfilled without the need for an offer of proof. In this situation, an offer would give us no additional information that bears on the legal question of the availability of the defense.

"Another purpose of an offer of proof is to assure that the trial court can make an informed decision. An offer of proof permits the parties to raise additional arguments, if appropriate, and gives the court an opportunity to reconsider its ruling and correct any error. Booth-Kelly Lumber Co. v. Williams, 95 Or 476, 483, 188 P 213 (1920); I Wigmore, Evidence 858, § 20a (Tillers ed 1983). The parties in this case fully argued the merits of the legal issue, and there is nothing to suggest that an offer would have altered the court's analysis. Indeed, an offer would not have been responsive to the state's motion, which framed only the broad legal issue. When the trial court excludes an entire class of evidence by declaring, in advance, that it is inadmissible as a matter of law, the ruling renders a further offer futile." 310 Or. at 461, 800 P.2d 277. (Emphasis in original.)

A significant difference between this case and Olmstead is that the defendant there sought to raise on appeal the legal question of the availability of the defense, while the assignment of error here purports to be directed at the exclusion of the evidence itself. But see note 1, infra. That difference might be of decisive importance if the court in Olmstead had recognized as a purpose of the offer of proof requirement that a party should be required to substantiate that it has sufficient admissible evidence to prove or rebut its factual proposition, even if the trial court has mistakenly concluded that the party cannot rely on the proposition as a matter of law. The legal error would often be harmless if there were insufficient evidence of the fact. See Booth-Kelly Lumber Co. v. Williams, 95 Or. 476, 483-84, 188 P. 213 (1920). For example, in Olmstead, it arguably would have made no difference whether the insanity defense was available if the defendant could produce no evidence that he was insane. Here, it would seemingly be inconsequential whether the trial court erred in ruling that the defense had to be pleaded, if appellants were unable to show that they could produce whatever proof was required of them. However, Olmstead does not make that consideration relevant to the preservation question and, therefore, neither can we. Here, as in Olmstead, the evidence was excluded because of an underlying ruling on a matter of law, and the evidentiary issue appellants raise is preserved. ¹

On the merits, the trial court concluded that, under ORCP 19B, the defenses of mitigation and avoidable consequences must be pleaded affirmatively. Appellants rely on Zimmerman v. Ausland, 266 Or. 427, 513 P.2d 1167 (1973), and Blair v. United Finance Co., 235 Or. 89, 383 P.2d 72 (1963), for the opposite conclusion. ² Appellants are correct. The court said in Zimmerman:

"In considering whether plaintiff is required to mitigate her damages by submitting to surgery we must bear in mind that while plaintiff has the burden of proof that her injury is a permanent injury, defendant has the burden of proving that plaintiff unreasonably failed to mitigate her damages by submission to surgery. * * * However, evidence that plaintiff could reasonably have avoided all or part of the damages is admissible under a general denial." 266 Or. at 432, 513 P.2d 1167. (Citations omitted.)

It said in Blair:

"The defense [of avoidable consequences] need not be affirmatively alleged. * * * Evidence that a plaintiff reasonably could have avoided all or part of the damages is admissible under the general issue." 235 Or. at 91, 383 P.2d 72. (Citations omitted.)

See also Nelson v. EBI Companies, 296 Or. 246, 252, 674 P.2d 596 (1984).

ORCP 19 B was adopted after Zimmerman and Blair were decided. It provides, as material:

"In pleading to a preceding pleading, a party shall set forth affirmatively [several enumerated defenses, not including mitigation or avoidable consequences] and any other matters constituting an avoidance or affirmative defense."

The Council on Court Procedures staff comment notes that: "Section 19B does not change the existing burden of pleading," although some "specific affirmative defenses which do not appear in the federal rule but which are the subject of Oregon cases are included." Merrill, Oregon Rules of Civil Procedure: 1990 Handbook 57. ORCP 19 B does not affect the holdings in Zimmerman and Blair, and the trial judge erred by excluding the evidence on the ground that he did. ³

As part of their second assignment, appellants also contend that the court erred by denying their motion for a directed verdict, made on the ground that Umsted's proof of damages failed because there was no evidence of mitigation. As the cases on which appellants rely make clear, Umsted had no burden of proof on mitigation. Hence, no directed verdict should have been allowed against him on the ground that he did not prove mitigation.

In the same assignment, appellants also attempt to challenge the court's refusal to give an instruction on avoidance of damages. Any such error in the jury instructions is intertwined with the error in excluding the evidence...