Opinion
No. A7712-17556, CA 14573
Argued and submitted September 24, 1980
Reversed and remanded for new trial November 17, 1980 Reconsideration denied January 22, 1981 Petition for review denied February 18, 1981 ( 209 Or. 491)
Patric J. Doherty, Portland, argued the cause for appellant. With him on the briefs was Rankin, McMurry, Osburn, VavRosky Doherty, Portland.
John H. Kelley, Milwaukie, argued the cause for respondent. With him on the brief was Redman, Carskadon Knauss, Milwaukie.
Before Joseph, Presiding Judge, and Warden and Warren, Judges.
George A. Van Hoomissen, Judge.
JOSEPH, P. J.
Reversed and remanded for new trial.
Plaintiff alleged two causes of action, one for violation of the Unlawful Trade Practices Act (ORS 646.605 et seq) and one for fraud. At the close of the plaintiff's case the trial court dismissed the Unlawful Trade Practices claim. The jury returned a verdict in favor of plaintiff for general and punitive damages on the fraud claim. Defendant appeals.
In the trial court plaintiff persuaded the judge to instruct the jury in accordance with Justice Lent's specially concurring opinion in Byers v. Santiam Ford Inc., 281 Or. 411, 574 P.2d 1122 (1978). At the argument plaintiff conceded that unless this court is prepared to rule contrary to the Supreme Court majority in Byers, the trial court's instruction was in error. We are, of course, bound by the majority decision in Byers. The trial court's failure to instruct properly on the plaintiff's burden of proof was error, and it was prejudicial error. See Elam v. Soares, 282 Or. 93, 102-103, 577 P.2d 1336 (1978) and the cases therein cited; State ex rel Redden v. Discount Fabrics, Inc., 289 Or. 375, 388, 615 P.2d 1034 (1980).
Consequent on the dismissal of plaintiff's Unfair Trade Practices Act claim, defendant moved for the allowance of attorney's fees under ORS 646.638(3). The motion was denied. The allowance of attorney's fees was discretionary, and the trial court did not abuse its discretion.
Defendant's other assignment of error presents a matter that is not likely to recur at the new trial, and so we will not discuss it.
Reversed and remanded for new trial.