Ailes v. Portland Meadows, Inc.

EDMONDS, J.

Plaintiff appeals from a judgment n.o.v. ORCP 63. The trial court ruled that plaintiffs action is barred by the Statute of Limitations. ORS 12.110(1).¹ We reverse, because the trial court was without authority to enter the judgment.

Plaintiff, a professional jockey, was injured while racing a horse at defendant’s race track. The complaint alleged that defendant was negligent and that, as a result, plaintiff suffered personal injuries. Defendant’s pretrial motion to dismiss “the entire case based on the statute of limitations” was denied. At trial, defendant moved for a directed verdict at the conclusion of plaintiffs evidence, ORCP 60, on grounds unrelated to ORS 12.110(1). The motion was denied. At the close of all the evidence, defendant moved for a directed verdict on the “same grounds” as the first motion and, again, the motion was denied. That same day, immediately after the jury returned a verdict in favor of plaintiff, defendant orally moved for a judgment n.o.v. on the grounds stated in the directed verdict motions. That motion was also denied.

Three weeks later, defendant filed a written motion for judgment n.o.v. and, in the alternative, for a new trial, arguing, inter alia, that plaintiffs action was barred by ORS 12.110(1). A hearing on the motion was held, and the trial court granted defendant’s motion for judgment n.o.v. on the basis of ORS 12.110(1), but denied the motion for judgment n.o.v. and a new trial on the other grounds raised by defendant.

Plaintiff argues that defendant waived its right to raise the Statute of Limitations by motion for judgment n.o.v., because it did not first raise it by motion for a directed verdict. Plaintiff did not make that argument to the trial court and did not assert it on appeal until his reply brief. As the Supreme Court has said:

“[A] party who makes no objection at all [to the trial court] cannot be heard to complain to [an appellate] court. A party owes the trial court the obligation of a sound, clear and articulate motion, objection or exception, so as to permit the trial judge a chance to consider the legal contention or to correct an error already made.” Shields v. Campbell, 277 Or 71, 77, 559 P2d 1275 (1977).

See also ORAP 5.45(2); ORAP 5.70(1); Hendrix v. McKee, 281 Or 123, 125 n 2, 575 P2d 134 (1978). ORCP 63A provides:

“When a motion for a directed verdict, made at the close of all the evidence, which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require.”

Notwithstanding that plaintiff failed to preserve his argument that defendant waived its right to raise the Statute of Limitations argument under ORCP 63A, a motion for a directed verdict or its equivalent is a “condition precedent to the exercise of the court’s power to render a judgment n.o.v.” Stark v. Henneman, 250 Or 34, 36, 440 P2d 364 (1968); Owens v. Haug, 61 Or App 513, 516 n 3, 658 P2d 523, rev den 294 Or 792 (1983); Huston v. Trans-Mark Services, 45 Or App 801, 804 n 3, 609 P2d 848, rev den 289 Or 587 (1980). We understand Henneman to hold that failure to move for a directed verdict before moving for a judgment n.o.v. is not jurisdictional, but makes the court’s allowance of a judgment n.o.v. error. The fact that plaintiffs argument was not made in the trial court could not give the court authority to grant the motion for judgment n.o.v., if it otherwise lacked that authority.² See Micek v. LeMaster, 71 Or App 361, 365, 692 P2d 652 (1984), rev den 298 Or 773 (1985). Because defendant failed to raise the limitations issue by motion for a directed verdict or its equivalent, the trial court had no authority to grant the motion for judgment n.o.v. on that ground.³

Reversed and remanded for reinstatement of jury verdict and entry of judgment thereon.

1 ORS 12.110(1) provides:

“An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.”

The complaint was filed within two years after plaintiff’s injury. However, the trial court ruled that, because service was made sixty-one days after the filing of the complaint, the action was not commenced within two years after the injury. See ORS 12.020.

2 In Barr v. Linnton Plywood Ass’n, 223 Or 541, 352 P2d 596, 355 P2d 256 (1960), the trial court had granted the defendant’s motion for judgment n.o.v. after the defendant had moved for involuntary nonsuit at the close of the plaintiffs case and did not present any evidence. The Supreme Court did not “consider the sufficiency” of the order allowing the judgment n.o.v., observing that

“the plaintiff did not make an issue to the trial court nor [on appeal] that the order * * * was deficient because it was based upon the failure to allow the motion for involuntary nonsuit rather than upon a failure to allow a motion for a directed verdict * * *.” 223 Or at 542.

However, Barr was decided before Stark v. Henneman, supra. We note, too, that Barr is factually distinguishable from this case. In Barr, the issue was not raised on appeal but, here, it was, albeit not until the reply brief.

3 As a result of our disposition of the case, we do not reach the parties’ remaining arguments.