BEALL TRANSPORT EQUIPMENT COMPANY, an Oregon corporation, Respondent on Review, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation; UNION PACIFIC RAILROAD COMPANY, a Utah corporation; CITY OF PORTLAND; STATE of OREGON, by and through the Department of Motor Vehicles; JOHN HREN; JOHN R. GREISEN; THOMAS MORRISON; W. RAYMOND HORN; STUART ABRAMS; WAYNE C. KLEPPER; and STUART ABRAMS, dba ABRAMS METALS, INC., Defendants, and ABRAMS, INC., dba Abrams Scrap Metals, Inc., Petitioner on Review. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation; and UNION PACIFIC RAILROAD COMPANY, a Utah corporation, Respondents on Review, v. WAYNE C. KLEPPER, Third-Party Defendant, and STUART ABRAMS, Petitioner on Review.
CC 9701-00347; CA A102619; SC S48108
In the Supreme Court of the State of Oregon
December 27, 2002
FILED: December 27, 2002; On review from the Court of Appeals; Appeal from Multnomah County Circuit Court, Roosevelt Robinson, Judge. 170 Or App 336, 13 P3d 130 (2000).
Argued and submitted January 10, 2002.
Michael H. Bloom, Portland, argued the cause and filed the briefs for petitioners on review. With him on the briefs was Thomas M. Christ.
Patrick L. Block, of Buono Block P.C., Portland, argued the cause and filed the briefs for respondent on review Beall Transport Equipment Company. With him on the briefs was Steven G. Marks.
Jeffrey M. Kilmer, of Kilmer, Voorhies & Laurick, P.C., Portland, argued the cause and filed the briefs for respondents on review Southern Pacific Transportation Company and Union Pacific Railroad Company. With him on the briefs was Gregory B. Snook.
LEESON, J.
The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings.
**De Muniz, J., did not participate in the consideration or decision of this case.
LEESON, J.
Abrams‘s1 petition for review presents two issues. The first is whether the Court of Appeals erred in applying the “abuse of discretion” standard of review in reviewing the trial court‘s denial of Abrams‘s motion for a mistrial following an off-the-record, ex parte communication between an opposing lawyer and a juror. The second is whether Abrams preserved the error it assigned on appeal, namely, the trial court‘s failure to give a jury instruction that Abrams had requested. We decline to address the mistrial issue, because Abrams failed to raise it in the Court of Appeals. In regard to the jury instruction issue, for the reasons that follow, we reverse the decision of the Court of Appeals.
We take the following undisputed facts primarily from the Court of Appeals’ opinion. In May 1995, Klepper, the manager of Southern Pacific‘s Brooklyn Yard in Portland, sold several semi-trailers to Abrams, a scrap metal dealer. Klepper falsely told Abrams that Southern Pacific owned the trailers and that Klepper was selling them on behalf of Southern Pacific. In fact, Southern Pacific only leased the trailers. By the end of 1996, Klepper had sold Abrams more than 100 such trailers, and Abrams, in turn, had sold at least 79 of the trailers to Beall Transport Equipment Co. (Beall), a used trailer dealer, which in turn sold 55 of the trailers to third parties. Southern Pacific officials eventually learned that their leased trailers were missing and, with the help of the police, recovered many of the trailers from Abrams and Beall.
Those circumstances led to two lawsuits. In one, Beall filed a complaint against Southern Pacific2 and Abrams, alleging conversion, breach of contract, breach of warranty, and fraud. Southern Pacific filed a cross-claim against Abrams for conversion, and Abrams filed a cross-claim against Southern Pacific for conversion and indemnity. In the second lawsuit, Abrams filed a complaint against Southern Pacific, alleging, in part, breach of contract and conversion. Southern Pacific filed a counterclaim against Abrams, again alleging conversion. The court consolidated the two lawsuits.
Before trial, the court granted Beall‘s motion for partial summary judgment against Abrams on Beall‘s breach of contract claim. The only issues for trial were the amount of damages that Abrams owed on Beall‘s breach of contract claim, the merits of Beall‘s fraud claim against Abrams, and Abrams‘s and Southern Pacific‘s claims against each other.
During a recess at trial, the lawyers representing Abrams and Southern Pacific went into chambers with the judge to discuss a matter that concerned only those parties. During that time, the lawyer representing Beall spoke to two members of the jury. Thereafter, Abrams moved for a mistrial. A subsequent inquiry revealed that the ex parte communication consisted of the lawyer‘s comment on one juror‘s attire and a statement to another juror that the lawyer recognized the juror as an employee of a pub that the lawyer recently had visited. The trial court denied Abrams‘s motion for a mistrial.
At the close of all the evidence, Abrams submitted section 222A of Restatement (Second) of Torts (1965)3 as a written jury
The jury returned two special verdicts. In one verdict, the jury awarded Beall damages on its breach of contract claim against Abrams but found that Abrams did not commit fraud. In its second verdict, the jury found that Southern Pacific was entitled to damages from Abrams for conversion. Southern Pacific and Abrams then litigated the amount of those damages in a trial to the bench. After that trial, the trial court entered judgments on the jury‘s verdicts and on its own damages award.
Abrams appealed, raising six assignments of error. As relevant to the issues on review, the Court of Appeals affirmed the trial court‘s denial of Abrams‘s motion for a mistrial. Beall Transport Equipment Co. v. Southern Pacific, 170 Or App 336, 349, 13 P3d 130 (2000). The Court of Appeals also held that Abrams had not preserved its objection to the trial court‘s failure to give Abrams‘s requested jury instruction containing the complete text of section 222A of the Restatement. Id. at 357.
On review, Abrams first argues that the Court of Appeals erred in reviewing for abuse of discretion the trial court‘s denial of his motion for a mistrial. Abrams contends that the abuse of discretion standard is appropriate only when an ex parte communication is between a party and a juror, or between a witness and a juror. According to Abrams, a communication between a lawyer and a juror is analogous to a communication between a judge and a juror, and should be considered error as a matter of law. Huntley v. Reed, 276 Or 591, 594, 556 P2d 122 (1976) (holding new trial required after judge‘s ex parte communication with jury in response to jury question during deliberations because there was “no way of reaching a conclusion about what transpired other than by adopting the judge‘s recollection“).
However, Abrams asked the Court of Appeals to review for abuse of discretion the trial court‘s denial of Abrams‘s motion for a mistrial based on the lawyer-juror ex parte communication. Even assuming that some other standard of review is appropriate when reviewing the denial of a motion for mistrial based on lawyer-juror ex parte communications, we will not address Abrams‘s argument on that point for the first time on review. See Tarwater v. Cupp, 304 Or 639, 643-45 & n 5, 749 P2d 125 (1988) (refusing to address on review argument different from one made before Court of Appeals).
We turn to Abrams‘s contention that the trial court erred in refusing to give Abrams‘s requested jury instruction regarding conversion. As noted, the Court of Appeals held that Abrams had not preserved that error. Beall, 170 Or App at 357. Specifically, the Court of Appeals held that, under
Abrams contends that the Court of Appeals’ conclusion contradicts
We begin with the text of
“* * * [N]o instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury. Any point of exception shall be particularly stated and taken down by the reporter or delivered in writing to the judge. It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made.”
The first two sentences of
“It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made.”
(Emphasis added.)
By its terms, therefore,
Nonetheless, Southern Pacific argues that this court‘s cases compel a different result. Specifically, Southern Pacific argues that this court has created an “exception” to the rule stated in the last sentence of
In Crow, the defendant assigned error on appeal to the trial court‘s failure to give the defendant‘s requested instruction on contributory negligence. 241 Or at 141. The defendant had not excepted specifically when the trial court instructed the jury that it should consider contributory negligence only in mitigation. Id. However, the defendant had requested a jury instruction that correctly stated the law in effect at the time, namely, that contributory negligence was a bar to recovery. Id.
The statute that governed the preservation of jury instruction error at the time of this court‘s decision in Crow was former ORS 17.510 (1963), repealed by Or Laws 1979 ch 284, § 199, which provided:
“[N]o instruction given to a jury in the circuit court shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception was made in the circuit court. It shall be unnecessary to note an exception in the circuit court to any other ruling made. All adverse rulings except those contained in instructions given shall import an exception in favor of the party against whom the ruling was made.”
Unlike
Southern Pacific and Abrams agree that, in Crow, this court held that a party does not need to except to a trial court‘s refusal to give that party‘s requested instruction. However, Southern Pacific argues that this court‘s decision in Holland modified Crow by holding that Crow‘s “automatic exception” rule applies only to those requested instructions that “clearly and directly” call the trial court‘s attention to the error. As explained below, we disagree with Southern Pacific‘s reading of Holland.
Holland was a medical malpractice case in which the plaintiff, in writing, had requested an instruction about the law of informed consent that described the physician‘s duty to warn the patient of certain risks. 270 Or at 141. The trial court refused to give that instruction and, instead, instructed the jury that the standard governing the defendant physician‘s conduct was whether he advised the plaintiff of the risks and feasible alternatives that “a reasonably prudent physician specializing in radiology would have explained under the same or similar circumstances.” Id. at 132-33. On appeal, the plaintiff contended that the trial court erred in giving that “reasonably prudent physician” instruction to the jury. Id. at 132. Citing Crow, the plaintiff contended that she had preserved that error by requesting her own instruction containing a correct statement of the physician‘s duty to warn. Id. at 133.
This court disagreed. Id. at 141. It held that requesting a jury instruction does not preserve automatically the error in the instructions given, unless the requested instruction “clearly and directly” informed the trial court that it was error to give that instruction. Id.
The plaintiff in Holland thus was in a different position than the defendant in Crow. In Crow, as discussed above, the error asserted was error in failing to give the jury a requested instruction, and this court held that the defendant had preserved that error automatically by requesting the instruction. In Holland, by contrast, the error at issue regarded error in the instruction given to the jury, and the plaintiff argued that she had preserved that error by having requested an instruction on
Finally, we turn to Roberts. In that case, the trial court refused to give the defendant‘s requested instruction regarding bailment. 289 Or at 123-24. On appeal, the defendant assigned error to the trial court‘s failure to give the defendant‘s requested instruction. Id. at 121. The plaintiff argued that the defendant had failed to preserve its claim of error regarding the trial court‘s failure to give the instruction that the defendant had requested, because the defendant had not objected to the instructions that the court had given. Id. at 127-28. This court rejected that argument, relying on Crow for the proposition that exceptions are not required when trial courts refuse to give requested instructions. Id. at 128.
Although the court reached the correct result in Roberts, we acknowledge and now disavow the suggestion in Roberts that a requested instruction must “clearly and directly” call to the trial court‘s attention its error in failing to give that instruction. See id. at 131 (“Because defendant preserved * * * error by requesting an instruction that ‘clearly and directly’ called to the attention of the trial court its error in failing to instruct the jury on the question of negligence, * * * the defendant * * * was entitled to appeal from the failure to give that instruction.“). Any misinterpretation of Holland in Roberts did not affect the outcome in that case, nor has it affected this court‘s reasoning in more recent cases. See, e.g., Bennett v. Farmers Ins. Co., 332 Or 138, 153, 26 P3d 785 (2001) (correctly stating preservation rule regarding appeal from trial court‘s failure to give proffered jury instruction).
In sum, neither Holland nor the text of
The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings.