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Beall Transport Equipment Co. v. Southern Pacific Transporation Co.12/27/2002
Argued and submitted January 10, 2002.
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.
Abrams's 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 Pacific 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) as a written jury instruction on conversion. The trial court gave Southern Pacific's requested instruction instead. That instruction consisted of the first paragraph of section 222A only.
The jury returned two special verdicts. In one verdict, the jury awarded Beall damages on its breach of contract claim agai
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