Peace River Seed Co–Operative, Ltd. v. Proseeds Mktg., Inc.

• Decision Date: 05 December 2012
• Docket Number: A144564.,03C15778
• Citation: 293 P.3d 1058,253 Or.App. 704
• Parties: PEACE RIVER SEED CO–OPERATIVE, LTD., dba Peace River Seed Co–Op, Ltd., a Canadian corporation, Plaintiff–Appellant, v. PROSEEDS MARKETING, INC., an Oregon corporation, Defendant–Respondent.
• Court: Oregon Court of Appeals

253 Or.App. 704

293 P.3d 1058

PEACE RIVER SEED CO–OPERATIVE, LTD., dba Peace River Seed Co–Op, Ltd., a Canadian corporation, Plaintiff–Appellant,

v.PROSEEDS MARKETING, INC., an Oregon corporation, Defendant–Respondent.

03C15778; A144564.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 2011.

Decided Dec. 5, 2012.

Wm. Randolph Turnbow argued the cause and filed the briefs for appellant.

J. Michael Alexander, Salem, argued the cause for respondent. With him on the brief was Swanson, Lathen, Alexander, McCann & Prestwich, PC.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

SERCOMBE, J.

In this breach of contract action, plaintiff Peace River Seed Co-operative, Ltd. (Peace River) sought to recover damages from defendant Proseeds Marketing, Inc. (Proseeds) based on Proseeds' failure to purchase grass seed from Peace River as agreed pursuant to a series of contracts. The case was tried to the court, which entered a general judgment awarding Peace River damages along with prejudgment interest, post-judgment interest, and costs and disbursements. Peace River now appeals, raising five assignments of error. As explained below, we conclude that several of Peace River's assignments of error are well taken and, therefore, reverse and remand the judgment of the trial court.

The following background facts were found by the trial court or are undisputed. Peace River, a Canadian company, is an agricultural cooperative. Proseeds is an Oregon corporation that, among other things, purchases and resells grass seed. In 1999 and 2000, the parties entered into a series of contracts for sale and purchase of grass seed through an Oregon seed broker. The form contracts were prepared by the broker and, pursuant to those contracts, Proseeds was to purchase from Peace River the total grass-seed production over two years for a set number of acres. The broker noted on the contracts an estimated production for each year. The contracts did not, however, specify particular fields on which the grass seed would be produced or particular farmers that would grow the seed. For the most part, the contracts provided that Proseeds would pay between 70 and 72 cents Canadian per pound of grass seed; the seed was to be delivered by Peace River to Minnesota or Oregon, as directed by Proseeds. The contracts incorporated a set of standard rules for seed trading known as the NORAMSEED rules. After entering into the contracts with Proseeds, Peace River contracted with a number of growers to plant the crop that it would need to fulfill its obligation to Proseeds.

After the parties entered into their contracts, the price of grass seed dropped significantly. Proseeds provided shipping instructions and took delivery of some grass seed pursuant to the contracts, and all of the seed that Peace River shipped to Proseeds was of the type and quality required under the contracts. However, although Peace River made multiple demands for shipping instructions for the remainder of the grass seed production under the contracts, Proseeds refused to provide shipping instructions. Eventually, Peace River declared Proseeds to be in breach and cancelled the contracts. Over the next several years, Peace River stored the grass seed that its growers had delivered and was eventually able to sell at least some of the seed.

Initially, the parties' dispute was submitted to arbitration, which resulted in a substantial award of damages to Peace River. Peace River sought to enforce the arbitration award in court and, over Proseeds' objection, the trial court concluded that the arbitration was binding and entered judgment. The matter was appealed and, on appeal, this court concluded that the arbitration was not binding and the case was remanded for trial. Peace River Seed Co–Op v. Proseeds Marketing, 204 Or.App. 523, 132 P.3d 31,rev. den.,341 Or. 216, 140 P.3d 1133 (2006).

The case was tried to the court in December 2008. The court concluded that Proseeds had breached its contract with Peace River. Peace River had asserted that, as its damages, it was entitled to recover from Proseeds the difference between the contract price and the market price at the time of the breach. However, the court determined that Peace River could not “recover damages in an amount greater than actually incurred.” Accordingly, it concluded that Peace River's compensatory damages would be the lesser of the “difference between the actual sales price received by [Peace River] upon ultimate sale [of the seed] and the contract price with [Proseeds]” or “the difference between the market price and the contract price on the total production, less the seed purchased and paid for by [Proseeds].” The court declined to attempt to calculate the damages based on the evidence submitted and, instead, directed Peace River to calculate damages based on its ruling.

Peace River sought reconsideration, again asserting that, based on Oregon's adoption of the Uniform Commercial Code (UCC), specifically ORS 72.7080(1), it was entitled to damages measured by the difference in the contract price for the seed and the market price at the time of the breach. It also submitted a calculation of those damages. Proseeds, on the other hand, submitted a calculation of damages that, among other things, purported to account for Peace River's later sales. Peace River responded by indicating that, in its view, there was insufficient evidence to calculate damages based on later sales and that it was “impossible to identify any sales of seed that can be ‘identified’ to [Proseeds'] (as opposed to others') contracts.” Peace River further contended that Proseeds' calculations were based on flawed premises. The trial court noted that it had “no way of knowing what sum [Peace River] believes [it is] entitled to using the measure of damages [the court] found was applicable to this claim.” The court concluded that, despite the fact that Peace River contended Proseeds' calculations were based upon “flawed assumptions, average prices, net sales prices, inapplicable credits, inaccurate calculations, and the ignoring of certain facts,” because Peace River did not submit damage calculations accounting for its later sales, the court was “stuck with” Proseeds' calculations and had “no option but to accept” them.

In addition, Peace River sought attorney fees and all of its out-of-pocket expenses incurred in the course of litigation. It asserted that it was entitled to recover those amounts under the parties' contracts and an Alberta Rule of Court. The court concluded that Peace River “did not make an adequate allegation necessary to obtain an award of attorney fees pursuant to ORCP 68.” Furthermore, it considered the application of the NORAMSEED rules, which Peace River asserted were incorporated into the contracts and allowed for recovery of attorney fees and all other out-of-pocket expenses, and concluded that the provision of the NORAMSEED rules in question was ambiguous and that the “ambiguity must be resolved against the party drafting the contract, and in this instance, that is [Peace River].” ¹ The court's opinion did not address Peace River's out-of-pocket expenses. Ultimately, the trial court entered a general judgment that awarded damages. The court did not award attorney fees or out-of-pocket expenses. Peace River now appeals.

In its first assignment of error, Peace River contends that the trial court erred in allowing Proseeds to pay the judgment using a 2002 exchange rate. According to Peace River, pursuant to ORS 24.290 and ORS 24.260, Proseeds was required to pay the judgment using the “conversion rate in effect on the day before the day of payment.” ² Proseeds concedes that the trial court erred “by failing to determine the exchange rate based on a conversion date consistent with” those statutory provisions. We agree, and accept the concession.

Peace River next asserts, in its second assignment of error, that the “trial court erred in awarding $36,750 in damages from an agreed ‘wash’ transaction in Canadian funds * * * without explanation.” ³ In particular, plaintiff asserts that the damages set forth in the evidence had been calculated in U.S. funds rather than Canadian funds, and the trial court, in awarding that dollar amount in Canadian funds, “gave Proseeds the benefit of duplicate discounts for the exchange rate.” Proseeds responds that “[t]he issue on appeal was not preserved and in fact was invited” by Peace River. We agree with Proseeds.

To be raised and considered on appeal, an issue must generally be first presented to the trial court. Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008); seeORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *.”). “[T]he determination whether a particular issue was preserved for appeal is a ‘practical one’; it will depend on whether the policies behind the preservation requirement-judicial efficiency, full development of the record, and procedural fairness to the parties and the trial court—are met in an individual case.” Charles v. Palomo, 347 Or. 695, 700, 227 P.3d 737 (2010) (quoting State v. Parkins, 346 Or. 333, 340–41, 211 P.3d 262 (2009)). Accordingly, we review an issue advanced by a party on appeal only where “that party raised the issue below with enough particularity to assure that the trial court was able to ‘identify its alleged error’ so as to ‘consider and correct the error immediately, if correction is warranted.’ ” Id. (quoting State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000)). Similarly, error that is invited is not a ground for reversal. Under the invited error doctrine, “a party who was actively instrumental in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” State v. Kammeyer, 226 Or.App. 210, 214, 203 P.3d 274,rev. den.,346 Or. 590, 214 P.3d 822 (2009) (internal quotation marks...