McDougal v. Griffith

• Decision Date: 02 June 1944
• Citation: 964 P.2d 1135,156 Or.App. 83
• Parties: Marvin McDOUGAL, Appellant, v. Glen GRIFFITH and David Correa, Respondents. 9
• Court: Oregon Court of Appeals

Page 1135

964 P.2d 1135

156 Or.App. 83

Marvin McDOUGAL, Appellant, v. Glen GRIFFITH and David Correa, Respondents.

96-02-44 CV; CA A96758.

Court of Appeals of Oregon.

Argued and Submitted May 14, 1998.

Decided Sept. 9, 1998.

David B. Hydes, Canyon City, argued the cause for Appellant. With him on the brief were David B. Hydes, P.C. and Gregory T. Day.

David M. Blanc, Pendleton, argued the cause for Respondent. With him on the brief was Corey, Byler, Rew, Lorenzen & Hojem, L.L.P.

Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.

LINDER, Judge.

Plaintiff appeals from a judgment on defendants' counterclaim for damages arising out of a cattle grazing lease between the parties. Plaintiff raises several assignments of error on appeal, most of them relating to the court's calculation of damages. We address only plaintiff's assignment challenging the trial court's judgment on the ground that it exceeded the amount pleaded in violation of ORCP 67 C(2), and we affirm.

The parties entered into a lease agreement in which plaintiff provided cattle pasture for grazing defendants' calves during the 1995 grazing season, lasting approximately from May to November. Under the terms of the lease, defendants agreed to pay $16 per head or cow-calf pair per month, and plaintiff agreed to provide inspection and care of the cattle. During the course of the season, defendants became dissatisfied with plaintiff's performance under the lease. Eventually, the parties agreed that defendants would remove their cattle by October 23, 1995. When defendants removed the cattle, many of the calves were underweight by as much as 100 pounds, several had pink eye, and several were missing. Although defendants had secured a contract to sell three loads of the calves that fall, they were unable to sell all of them at that time because of the number that were underweight. As a result, defendants wintered one load of calves and later sold them. Defendants attributed their inability to sell the calves in the fall to plaintiff's breach of the lease agreement and therefore refused to pay plaintiff the full amount owed under the lease. Seeking payment on the lease, plaintiff brought this action.

Plaintiff sought foreclosure of an agricultural services lien, or alternatively, damages for breach of contract and quantum meruit. Defendants responded with several affirmative defenses and counterclaims, including a claim of partial breach of contract. The trial court granted defendants' directed verdict motion on plaintiff's lien foreclosure action. The trial court granted judgment to plaintiff on his breach of contract claim, awarding damages of $22,407.73. The court also awarded judgment to defendants on their counterclaim for plaintiff's partial breach of contract. The judgment in favor of defendants read as follows:

"(A) Defendant Glen Griffith suffered damages in the amount of $17,500 and defendant David Correa suffered damages in the amount of $5,443. These two sums shall be used to offset the award of plaintiff under plaintiff's first claim for relief [$22,407.73] resulting in a net award to defendants in the amount of $536.33. Defendants Glen Griffith and David Correa shall be entitled to judgment in the amount of $536.33.

"(B) Glen Griffith shall be entitled to judgment for additional damages in the amount of $29,123.

"(C) David Correa shall be entitled to judgment for additional damages in the amount of $13,973."

On appeal, plaintiff argues that the court awarded greater damages to defendants than they requested in their pleadings, violating ORCP 67 C(2). That rule provides: "Where a demand for judgment is for a stated amount of money as damages, any judgment for money damages shall not exceed that amount." In their first amended answer and counterclaim, defendants alleged:

"As a result of the breach of the lease by plaintiff the cattle of defendants were 100 pounds below average weight, some cattle were lost and have died and suffered from pink eye, 8% more cattle than average were barren, and a calf sale contract was lost all causing damages to defendants in the amount of $50,000."

According to plaintiff, the court's determination that defendants suffered damages in the amount of $17,500 and $5,443, when combined with the additional damages of $29,123 and $13,973 (totaling $66,039), exceeds the amount pleaded in defendants' counterclaim. Defendants respond that the court did not err because the judgment actually entered was $43,632.33 and thus did not exceed the $50,000 requested in the pleadings. Defendants also contend that, in any event, plaintiff's claim of error is not preserved because he failed to object to the proposed form of judgment or to the judgment entered, or otherwise raise the issue below.

We agree with defendants that plaintiff's assignment of error is not preserved. In a variety of contexts, we have held that alleged errors relating to the computation of a monetary award set forth in a judgment, or to a perceived inconsistency in a judgment, must be raised with the trial court to be preserved for our review. For example, in McDonough and McDonough, 141 Or.App. 116, 122, 917 P.2d 36 (1996), wife claimed that the court's order distributing the parties' marital assets contained mathematical errors and "erroneously memorialized the court's intended disposition, as expressed in its prior oral ruling." We determined that the issue was not preserved because the wife failed to make any...