Yamaha Store of Bend, Oregon, Inc. v. Yamaha Motor Corp., U.S.A.

• Decision Date: 11 October 1990
• Citation: 806 P.2d 123,311 Or. 88
• Parties: The YAMAHA STORE OF BEND, OREGON, INC., d/b/a "The Yamaha Store," Respondent on Review, v. YAMAHA MOTOR CORPORATION, U.S.A., a California corporation, Petitioner on Review, Benjamin H. Jacques, Jr., and Phillippe D. Jacques, d/b/a Bend Yamaha Snowmobile, Defendants. YAMAHA MOTOR CORPORATION, U.S.A., a California corporation, Counterclaim Plaintiff, v. Robert A. NOSLER and John A. Nosler, Counterclaim Defendants. TC 32901-TM; CA A44218; SC S36613. . On Petitions for Reconsideration
• Court: Oregon Supreme Court

Page 123

806 P.2d 123

311 Or. 88

The YAMAHA STORE OF BEND,

OREGON, INC., d/b/a "The Yamaha

Store," Respondent on Review, v. YAMAHA MOTOR CORPORATION, U.S.A., a California corporation, Petitioner on Review, Benjamin H. Jacques, Jr., and Phillippe D. Jacques, d/b/a

Bend Yamaha Snowmobile, Defendants.

YAMAHA MOTOR CORPORATION, U.S.A., a California corporation, Counterclaim Plaintiff, v. Robert A. NOSLER and John A. Nosler, Counterclaim Defendants.

TC 32901-TM; CA A44218; SC S36613.

Supreme Court of Oregon.

On Petitions for Reconsideration

Oct. 11, 1990. ^*

Decided Feb. 7, 1991.

Peter C. Richter, William H. Walters, and Miller, Nash, Wiener, Hager & Carlsen, Portland, filed the petition for reconsideration and the response for Yamaha Motor Corp., U.S.A.

R.L. Marceau and Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend, filed the petition for reconsideration and the response for The Yamaha Store of Bend, Oregon.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

VAN HOOMISSEN, Justice.

Plaintiff, The Yamaha Store of Bend, Oregon, Inc., and defendant, Yamaha Motor Corporation, U.S.A., each petition for reconsideration of different portions of our decision in Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 310 Or. 333, 798 P.2d 656 (1990). Plaintiff argues that defendant should not have been awarded costs on review, and that it should have been awarded costs and attorney fees on review. Defendant argues that this court should not have remanded this case for a new trial on the issue of damages because plaintiff waived or abandoned its "lost profits" theory of damages, and that it is entitled to reasonable attorney fees on appeal. We allow plaintiff's petition in part, and deny defendant's petition.

Plaintiff sued defendant alleging that defendant had sold motorcycles to one of plaintiff's competitors in a manner that constituted price discrimination under ORS 646.040(1), breach of contract, and intentional interference with business and economic relations. At trial, on its price discrimination claim, plaintiff sought damages for 1982 model motorcycles under the "presumed damages" clause of ORS 646.160, ¹ and for 1980 and 1981 model motorcycles under the "such further damages" clause of the same statute. The jury awarded plaintiff a verdict on its price discrimination and contract claims. On its price discrimination claim, presumed damages for the 1982 models were awarded separately from the damages on the 1980 and 1981 models. The trial court then entered a judgment trebling the price discrimination damages, and awarded plaintiff attorney fees, costs, and disbursements. The Court of Appeals affirmed. Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., 98 Or.App. 290, 779 P.2d 1061 (1989).

On review, we affirmed on all issues of liability. We also affirmed plaintiff's award of presumed damages for the 1982 models on its price discrimination claim. However, we held that the trial court had erred in allowing plaintiff to pursue a devaluation of inventory measure of damages on its price discrimination claim for the 1980 and 1981 model motorcycles and the same measure of damages on its breach of contract claim for all models. We held that the proper measure of damages was "lost profits." Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., supra, 310 Or. at 344-45, 798 P.2d 656.

Accordingly, we vacated the damages awards where an incorrect theory of damages had been submitted to the jury and we remanded the case for a new trial only on the issue of damages. Because of the changes in the damage awards, we also vacated the trial court's award of attorney fees to plaintiff, and ordered that the issue of attorney fees be reconsidered by the trial court on remand. Defendant was designated as the prevailing party on review and was awarded its costs and disbursements.

DEFENDANT'S PETITION

On reconsideration, defendant first argues that we should not have remanded this case for a new trial on the issue of lost profits damages. We disagree for the reasons stated below.

Before trial, plaintiff stated its theories of liability in its amended complaint. However, plaintiff's theory as to the proper measure of damages for each of the theories of liability was not clear. Plaintiff and defendant agreed that "presumed damages" was the proper measure of damages for the 1982 model motorcycles on plaintiff's price discrimination claim.

The parties did not agree on the proper measure of damages on plaintiff's other claims. On the day of trial, plaintiff's complaint stated in part:

"As a result of the described actions of defendant Yamaha U.S.A., plaintiff sustained special damages in the form of increased costs, lost sales, reduced profit margins, increased indebtedness, finance charges, penalties and extra expense in connection with plaintiff's motorcycle business * * *."

During trial, when plaintiff sought to introduce evidence of damages on its other claims, it termed its theory of damages as "devaluation of new non-current inventory." Defendant objected, arguing that the proper measure of damages was "lost profits." Defendant also argued that plaintiff had not pleaded a devaluation of inventory theory of damages. Plaintiff responded that its amended complaint did allege a devaluation of inventory theory; it also moved to amend its complaint to make that theory explicit. The trial court allowed plaintiff's motion.

During the colloquy about plaintiff's theory of damages, the trial court expressed concern that plaintiff was attempting to recover damages under both theories of damages, viz. lost profits and devaluation of inventory. The court viewed the two theories as alternatively available, but exclusive of each other. Plaintiff expressly represented to the court that it was not seeking lost profits damages in the instances where it was seeking devaluation of inventory damages. After the court had granted plaintiff's motion to amend its complaint to make a devaluation theory of damages explicit, on defendant's motion the court struck the references in plaintiff's complaint to "lost sales" and "reduced profit margins," overruling plaintiff's argument that those references were an element of plaintiff's devaluation theory of damages. ²

Thus, as amended at trial, plaintiff's complaint read in part:

"As a result of the described actions of defendant Yamaha U.S.A., plaintiff sustained special damages in the form of increased costs, reduced inventory values, finance charges, and extra expenses in connection with plaintiff's motorcycle business * * *."

As noted, we have held that the devaluation of inventory theory of damages was not available to plaintiff in this case.

Defendant now argues that this case should not be remanded for a new trial on the issue of damages because, at trial, plaintiff waived or abandoned a lost profits theory of damages. Plaintiff responds that it should not be held to have waived or abandoned the right to the "exclusive remedy" of lost profits, under the "such further damages" clause of ORS 646.160, when it did not know that a lost profits theory was the "exclusive remedy" under that clause. Plaintiff argues that it could not have known of the "exclusive remedy" of lost profits because this case was one of first impression as to the proper measure of damages under the "such further damages" clause and because the law was uncertain before this court's explanation of the proper measure of damages issue under that clause. ³

We agree that remand for a new trial on the issue of damages is appropriate. On review, we affirmed on all issues of liability. Notwithstanding that we vacated plaintiff's damage awards where a devaluation theory of damages was incorrectly applied, plaintiff did present evidence at trial showing that it has suffered lost profits on the 1980 and 1981 model motorcycles. Plaintiff used this evidence at trial to support its devaluation theory of damages, but this evidence also is evidence of lost profits. Thus, there is evidence in the record from which a jury could find that plaintiff suffered lost profits on its other claims as a result of defendant's conduct. As the Court of Appeals found:

"Plaintiff had difficulty articulating a theory of damages related to the 1980 and 1981 inventory, and it did not settle on one until well into trial. However, plaintiff had less difficulty developing the facts of those damages. It prepared a list that showed each motorcycle in its inventory, compared its cost for that motorcycle to what Beaverton paid for a comparable machine, adjusted for items that defendant does not contest on appeal, and determined the total difference. It provided that list, which is the basis of its claim for devaluation of inventory, to defendant several months before trial." Yamaha Store of Bend, Inc. v. Yamaha Motor Corp., supra, 98 Or.App. at 296, 779 P.2d 1061 (emphasis in original).

ISee Austin v. Bloch, 165 Or. 116, 120, 105 P.2d 868 (1940) (proof of damages is an important consideration in a decision to remand).

Another factor in our decision to remand is the procedural posture of this case. Plaintiff pursued a devaluation of inventory theory of damages after the trial court agreed that such a theory was viable. There is no reason to believe that plaintiff would have abandoned its claims if the trial court had disallowed that theory of damages. Rather, plaintiff would have presented evidence of its lost profits. In that regard, we believe that this issue is analogous to one confronted in Robson v. Hamilton, 41 Or. 239, 69 P. 651 (1902), where this court held that a remand was proper:

"[A] cause should not be remanded to the lower court for further consideration unless necessity demands it. It was incumbent upon the defendants to present their testimony when they had an opportunity, but their failure to do so was evidently induced by a reliance upon the [trial] court's excluding competent evidence, * * * assuming this to be...