Fisher v. Freeland

566 P.2d 517, 279 Or. 177, 1977 Ore. LEXIS 808

• Court: Oregon Supreme Court
• Decided: July 12, 1977
• Docket: TC 35343, SC 24747
• Status: Published

Opinion

TOMPKINS, J.,

Pro Tempore.

The plaintiffs leased a Dairy Queen business from the defendants in Yachats, Oregon. In their amended complaint the plaintiffs alleged a false representation by the defendants that they had the right to sublease or assign the Dairy Queen franchise. Damages were claimed for the loss of "anticipated future profits.”

The trial was before the court without a jury, and the plaintiffs appeal from a judgment order of involuntary nonsuit allowed at the close of the plaintiffs’ case. The plaintiffs’ assignments of error are that the trial court at an earlier hearing erroneously struck the allegations of punitive damages from the plaintiffs’ amended complaint, and "* * * was in error in awarding nominal damages at the close of plaintiffs’ case.”

In the first place, nominal damages were not awarded; a judgment of involuntary nonsuit was granted. The trial judge mentioned the topic of nominal damages in the course of ruling on the motion for judgment of involuntary nonsuit, but counsel for plaintiffs said "* * * [Tjhere is no issue in the case as to nominal damages.”

In the second place, the plaintiffs did not assign as error the judgment of involuntary nonsuit. We must assume the ruling was correct. Therefore, the ruling on punitive damages, if wrong, would be harmless error. If plaintiffs cannot prove a prima facie case for false representation, they cannot complain that punitive damages were not submitted to the trier of fact.

Affirmed.