S057493, Opinion — Charles v. Palomo

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Submitted on the briefs December 8, 2009, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings February 19, reconsideration denied April 8, 2010
Stella A. CHARLES,
personal representative for the
Estate of Kenneth Charles, deceased,
Petitioner on Review,
v.
Andres PALOMO, Jr.,
Respondent on Review.
(CC 04C17458; CA A133122; SC S057493)
227 P3d 737

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En Banc

On review from the Court of Appeals .*

Conrad E. Yunker, Conrad E. Yunker, P.C., Salem, filed
the brief for petitioner on review. With him on the brief was
Thomas Melville.

Thomas M. Christ, Cosgrave Vergeer Kester LLP,
Portland, filed the brief for respondent on review.

Cody Hoesly, Larkins Vacura LLP, Portland, filed a brief
for amicus curiae Oregon Trial Lawyers Association.

BALMER, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

\* Appeal from Marion County Circuit Court, Claudia M. Burton, Judge. 227
Or App 335, 206 P3d 200 (2009).

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# BALMER, J.

The issue in this personal injury action is whether,
in a jury trial, a plaintiff is entitled to both an initial closing
argument and an opportunity to rebut the defendant's clos-
ing argument. Plaintiff filed this action for negligence
against defendant after the parties were involved in a car
accident. At the end of the jury trial, plaintiff presented an
initial closing argument to the jury, and defendant followed
with his closing argument. When the trial court began
instructing the jury, plaintiff requested an opportunity for a
rebuttal argument, which the court denied. After deliberat-
ing, the jury returned a verdict for defendant. Plaintiff
appealed, arguing that the trial court had erred when it
denied him the opportunity to rebut defendant's closing argu-
ment. The Court of Appeals affirmed, concluding that plain-
tiff had failed to preserve the issue. Charles v. Palomo, 227
Or App 335, 206 P3d 200 (2009). We allowed review and now
reverse the decision of the Court of Appeals and the judgment
of the trial court.

In his action, plaintiff alleged that defendant had
negligently caused a car accident and that plaintiff had suf-
fered injuries as a result. At the jury trial, the parties testi-
fied regarding the details of the accident. Plaintiff testified
that he had been driving in his truck along the highway at
night during a heavy rain when there was a car accident in
front of him. To avoid the accident, he tapped on his brakes
and began slowing down. "About a couple seconds" after that,
defendant rear-ended plaintiff's truck. Plaintiff testified that
his headlights and taillights were in good working condition
and were turned on at the time of the accident.

Defendant told a different story. He testified that he
was attempting to pass a semi-truck as he was cresting a hill.
After he drove down the hill, defendant's car and the semi-
truck both hit puddles of water, covering his windshield and
blocking his view for several seconds. Defendant testified
that plaintiff's truck was stalled in the roadway and that, by
the time defendant was able to see the truck, "[t]here was
nothing [he] could do but hit it." When plaintiff's counsel
asked defendant how he knew that the truck had been
stalled, defendant responded, "The police officer that took the

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report told me that [plaintiff] told him that." Defendant also
testified that he did not remember seeing any lights on plain-
tiff's truck before or after the collision.

At the close of the evidence, plaintiff's counsel pre-
sented his closing argument to the jury. Defense counsel then
presented his closing argument. Immediately thereafter, the
court began to instruct the jury, and the following exchange
ensued:

"[PLAINTIFF'S COUNSEL]: Rebuttal, Your Honor?
"THE COURT: Approach.

"(whispered) You don't get any.
"(Pause)"

The court then showed plaintiff a copy of ORCP 58 B(6),
which we set out and discuss in detail below.1 Plaintiff then
responded:

"[PLAINTIFF'S COUNSEL]: (whispered) Okay.
"(Pause)
"(whispered) Thank you.
"(Pause)
"(Unintelligible).

1 The trial record itself does not demonstrate that the court showed plaintiff
the rule. However, at the hearing on plaintiff's motion for a new trial, the court
explained what happened at trial as follows:

"I began reading jury instructions. [Plaintiff's attorney] said, what about my
rebuttal. I brought counsel up to the side bar, I did put my hand over the micro-
phone with the intention that the jury not hear our discussion because it was
certainly not my intention, you know, to embarrass anybody in front of the jury
or have anybody in an awkward position in front of the jury, and I said you
don't get one and I showed [plaintiff's attorney] the rule, and [plaintiff's attor-
ney] looked at the rule and said okay."

(Emphasis added.) Defendant argues that, in determining what happened at trial,
we should consider only the transcript of the trial itself, and not the trial court's
statement at the later hearing on plaintiff's motion for a new trial. However, the
uncontested record is sufficient to demonstrate that the trial court did show plain-
tiff the rule at trial. At the hearing on plaintiff's motion for a new trial, defense
counsel did not disagree with the foregoing description of what happened at trial.
Indeed, defense counsel specifically stated to the court that, at trial, "you showed
[plaintiff's counsel] the rule you were relying upon, he said okay." We therefore con-
sider the colloquy that occurred at the hearing on the motion for a new trial inas-
much as it aids us in determining that the trial court showed plaintiff the rule at
trial-an action that would not be apparent from the record of the trial itself, which
captures only sounds.

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"THE COURT: (whispered) I can certainly do that."2

Having denied plaintiff's request for rebuttal, the trial court
then instructed the jury. The jury deliberated and returned a
verdict for defendant.

After the trial court entered judgment for defendant,
plaintiff filed a motion for a new trial pursuant to ORCP
64 B,3 arguing that the trial court had erred in denying plain-
tiff's rebuttal closing argument. At the hearing on plaintiff's
motion, the trial court first ruled that the motion had been
"deemed denied" by ORCP 64 F4 because the court had not
ruled on it within 55 days of entry of judgment. The court
nonetheless addressed the merits of plaintiff's argument "as
a fall-back." The court concluded that plaintiff was not enti-
tled to a rebuttal argument and that, in any event, plaintiff
had not properly preserved the issue.

Plaintiff appealed and again argued that the trial
court had erred in denying him a rebuttal argument. As
noted, the Court of Appeals affirmed, concluding that
plaintiff had not properly preserved the issue. The court

2 The original transcript stated only that, after the court asked the parties to
approach, there was a "pause," after which the court began instructing the jury.
After trial, however, the parties agreed to correct the transcript. We quote the fore-
going exchange from the trial court's stipulated order settling the transcript.

3 ORCP 64 B provides, in part:

"A former judgment may be set aside and a new trial granted in an action
where there has been a trial by jury on the motion of the party aggrieved for
any of the following causes materially affecting the substantial rights of such
party:

"B(1) Irregularity in the proceedings of the court, jury or adverse party, or
any order of the court, or abuse of discretion, by which such party was pre-
vented from having fair trial.

**** * *

"B(3) Accident or surprise which ordinary prudence could not have
guarded against.

***** *

"B(6) Error in law occurring at the trial and objected to or excepted to by
the party making the application."

4 ORCP 64 F(1) provides that a motion for new trial "shall be heard and deter-
mined by the court within 55 days from the time of the entry of the judgment, and
not thereafter, and if not so heard and determined within said time, the motion
shall conclusively be deemed denied."

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determined that plaintiff had "merely requested rebuttal
argument" and had failed to "disagree with the [trial] court's
ruling" denying rebuttal. Charles, 227 Or App at 339. The
Court of Appeals also refused to exercise its discretion to
review the error as error apparent on the face of the record,
concluding, "It is not clear that the error had any effect on the
jury's decision that would warrant a new trial in this case."
Id. at 341. Plaintiff petitioned for review of the Court of
Appeals decision, and we allowed review to consider whether
plaintiff was entitled to make a rebuttal closing argument.

On review, plaintiff argues that the text of ORCP
58 B(6) makes clear that plaintiffs are entitled to both an ini-
tial closing argument and an opportunity to rebut the defen-
dant's closing argument. Defendant responds that plaintiff
failed to preserve the issue in the trial court and that, even if
plaintiff preserved the error, any error in denying his rebut-
tal argument is not reversible error because it did not sub-
stantially affect plaintiff's rights.

We turn first to defendant's contention that plaintiff
failed to preserve his claim that he was entitled to a rebuttal
argument. Ordinarily, this court will not consider an issue
unless it was first presented to the trial court. ORAP 5.45(1).
However, the determination whether a particular issue was
preserved for appeal is a "practical one"; it will depend on
whether the policies behind the preservation requirement-
judicial efficiency, full development of the record, and proce-
dural fairness to the parties and the trial court-are met in
an individual case. State v. Parkins, 346 Or 333, 340-41, 211
P3d 262 (2009). Therefore, we will review an issue advanced
by a party on review as long as that party raised the issue
below with enough particularity to assure that the trial court
was able to "identify its alleged error" so as to "consider and
correct the error immediately, if correction is warranted."
State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). We con-
clude that plaintiff did so here.

As noted, when the trial court began instructing the
jury, plaintiff interrupted to request rebuttal. With that
objection, plaintiff notified the court that he wished to make
a rebuttal argument. The court then asked the attorneys to
approach the bench. Anticipating plaintiff's objection, the

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court had a copy of the rules ready and showed plaintiff
ORCP 58 B(6). Thus, although plaintiff did not have a chance
to identify the source of his claimed right to rebuttal, the
court was aware of it. The foregoing demonstrates that the
plaintiff apprised the trial court of the issue (whether plain-
tiff was entitled to a rebuttal argument) and that the trial
court was aware of the source of plaintiff's claimed right
(ORCP 58 B(6)). It was not necessary for plaintiff to further
expand on his argument and explain the particulars of why
he believed that the rule provided him with a right to rebut-
tal. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988)
(raising an issue at trial "ordinarily is essential," identifying
a source "less so," and making a particular argument "least"
important). Thus, although plaintiff could have pressed his
argument before the trial judge and provided a clearer or
more detailed record-and it might have been prudent to do
so-his objection, given the sequence of events at the close of
trial, was sufficient to preserve for appellate review his claim
that the trial court erred in not permitting him to make a
rebuttal closing argument.

Defendant's preservation argument focuses on what
happened after plaintiff raised the issue, namely, that plain-
tiff said "Okay" after the trial court had denied his request for
rebuttal. Defendant argues that plaintiff did not "object to
the denial of rebuttal" or "otherwise indicate his opposition to
the ruling." Similarly, the Court of Appeals concluded that
plaintiff did not preserve his argument because he did not
indicate that he "disagree[d] with the court's ruling." Charles,
227 Or App at 339. As we explained above, however, after
plaintiff's initial closing and defendant's closing, the court
immediately began instructing the jury. That was the point
at which plaintiff voiced his objection by asking, "Rebuttal,
Your Honor?" It was apparent from plaintiff's comment that
he disagreed with the trial court's action in proceeding to
instruct the jury without giving him the opportunity for
rebuttal. The fact that plaintiff made his request politely and
did not use the word "objection" does not make his objection
inadequate. It is true that plaintiff did not make a further
objection to the court's oral ruling-denying rebuttal-once
that ruling had already been made. But parties are not
required to repeat their objections after the trial court has

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ruled against them. See Hitz, 307 Or at 187 (party did not
waive objection by "not pressing it in her oral argument to the
trial court").

For the same reason, we disagree with the Court of
Appeals' implication that, by saying "Okay," plaintiff effec-
tively withdrew his request for rebuttal. Plaintiff made his
objection known to the court when he requested rebuttal;
when the court denied his request, plaintiff acknowledged
the court's ruling by saying, "Okay. * * * Thank you." He did
not withdraw his objection merely because he courteously
accepted the court's ruling rather than further express his
disagreement with it. See State v. Fanus, 336 Or 63, 83, 79
P3d 847 (2003) (decision not to repeat objection does not con-
stitute waiver of objection).5

We turn, therefore, to the merits of plaintiff's claim
that he was entitled to a rebuttal argument. The Oregon
Rules of Civil Procedure control the manner of proceedings in
civil actions in circuit court. ORCP 1 A. In particular, ORCP
58 B(6) governs the sequence and timing of the parties' clos-
ing arguments. That rule provides:

"When the evidence is concluded, unless the case is sub-
mitted by both sides to the jury without argument, the
plaintiff shall commence and conclude the argument to the
jury. The plaintiff may waive the opening argument, and if
the defendant then argues the case to the jury, the plaintiff
shall have the right to reply to the argument of the defen-
dant, but not otherwise."

The first sentence of ORCP 58 B(6) demonstrates
that plaintiffs are entitled to rebut defendants' closing argu-
ments. The rule provides that "the plaintiff shall commence

5 Defendant also argues that the record is insufficient for our review because it
is "unintelligible" at a "key point in the proceedings." The record indicates that,
after plaintiff said "Okay" to the trial court, he said something more because the
transcript states that the audiotape is "unintelligible." The trial court then said, "I
can certainly do that." Defendant argues that we cannot determine whether the
error was preserved without speculating as to what plaintiff said. As described
above, however, the record is sufficient to demonstrate that plaintiff adequately
raised the issue. Further, the trial court and the parties all later explained their
recollection of what had happened at trial, and none remembered plaintiff
expressly withdrawing his objection. We will not presume, simply because there is
an unintelligible point in the audiotape, that plaintiff expressly withdrew his objec-
tion or otherwise directed the trial court away from the issue of rebuttal.

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and conclude the argument to the jury." (Emphasis added.)
In other words, the plaintiff has the right both to begin the
sequence of closing arguments to the jury and to end the
sequence of arguments, "unless the case is submitted by both
sides to the jury without argument." That is the only qualifi-
cation on the plaintiff's right to rebuttal.6 Thus, because the
parties here did not waive argument, the rule recognizes the
following sequence of closing arguments: (1) plaintiff's initial
closing argument; (2) defendant's closing argument; and
(3) plaintiff's rebuttal.

Indeed, our interpretation of ORCP 58 B(6) is so
apparent from the text of the rule that this court has accepted
that construction with little discussion. In State v. Stevens,
311 Or 119, 147-48, 806 P2d 92 (1991), for example, the
defendant in a capital case argued that the prosecution
should be limited to one closing argument at the penalty
phase of trial. This court noted that the identically worded
predecessor to ORCP 58 B(6)-former ORCP 58 B(4)-
applied.7 Because that rule provided that "the plaintiff shall
commence and conclude the argument to the jury," the court
concluded that "the state, as the plaintiff, ha[d] the right to
present a rebuttal argument." Id. at 148. Similarly, in State
v. McNeely, 330 Or 457, 468, 8 P3d 212 (2000), this court held
that former ORCP 58 B(4) provided the state with that "right
to rebuttal" even on issues for which the state did not bear
the burden of proof.

The trial court acknowledged that, "if you just read
[the first] sentence [of ORCP 58 B(6)], you could say com-
mence means you make the opening and then you make the
last." However, the court concluded that the second sentence
foreclosed that interpretation by permitting a plaintiff to
make a rebuttal argument if he or she waives the initial clos-
ing argument and the defendant then argues the case to the
jury, "but not otherwise." Thus, the court determined that
"you don't get to reply to the defense closing unless you

6 The trial court may also alter the sequence of events "for good cause stated in
the record." ORCP 58 B. Here, however, the trial court simply interpreted the rule
as prohibiting plaintiff from making a rebuttal closing argument.

7 Although Stevens was a criminal case, ORS 136.330(1) made certain rules of
civil procedure, including former ORCP 58 B(4), applicable in criminal proceedings.

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waived your opening." The court then explained its interpre-
tation of the first sentence: "[C]ommence and conclude I
guess means you get to finish your opening closing argu-
ment."8 We disagree.

As described above, the first sentence of ORCP
58 B(6) describes the ordinary sequence of closing argu-
ments: the plaintiff "commence[s]" closing argument, the
defendant presents its closing argument, and the plaintiff
"conclude[s]" with a rebuttal argument. The second sentence
then provides, "The plaintiff may waive the opening argu-
ment, and if the defendant then argues the case to the jury,
the plaintiff shall have the right to reply to the argument of
the defendant, but not otherwise." The trial court interpreted
the second sentence as providing the only situation in which
a plaintiff has a right to rebuttal, because of the dependent
phrase "but not otherwise." That is, the court concluded that
a plaintiff has a right to rebuttal only if he or she first waives
the initial closing argument and the defendant then presents
a closing argument.

The second sentence of ORCP 58 B(6), however, per-
tains only to a particular set of circumstances-when the
plaintiff has waived the initial closing argument. In that sit-
uation, the plaintiff may respond to the defendant's argu-
ment "if the defendant * * * argues the case to the jury, * * *
but not otherwise." Thus, the rule avoids the situation where
a plaintiff waives initial closing argument, the defendant
then waives argument, and the plaintiff attempts to make
the only closing argument under the guise of a rebuttal.
When a plaintiff does not waive the initial closing argument,
the first sentence applies, and the plaintiff is entitled to both
commence and conclude closing arguments.9

Having concluded that the trial court erred, we turn
to whether that error requires reversal. We will reverse a

$ On review, defendant does not argue that the rule should be so interpreted.
Instead, he argues only that plaintiff failed to preserve the issue and that any error
in denying his rebuttal argument was harmless.

9 Indeed, the second sentence supports that interpretation, by providing that
plaintiffs "may waive the opening argument." It therefore implies that, ordinarily,
plaintiffs are entitled to two separate closing arguments-an "opening" closing
argument and a rebuttal argument.

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trial court's judgment only if the trial court's error "substan-
tially affect[ed] the rights of a party." See ORS 19.415(2)
(stating standard). For the reasons that follow, we hold that
the error here did.

Closing arguments are an integral part of trial. They
provide the attorneys with their final opportunity to "per-
suade the jury to adopt a particular view of the facts." Ireland
v. Mitchell, 226 Or 286, 295, 359 P2d 894 (1961). It is through
closing arguments that the attorneys are able to fully frame
the issues and remind the jury of evidence that they may
have heard days earlier. Further, arguments give the attor-
neys a chance to explain the evidence in narrative form. That
narrative function of arguments-the opportunity to tell the
story of the case-is essential to effective advocacy, and the
ability to do so can alter the jury's understanding of the evi-
dence and ultimately change the outcome of a given case.

As noted, here, the issue of liability depended on
the jury's credibility determination. The parties disputed
whether plaintiff's truck had been stopped on the highway
when defendant collided with it; they were the only fact wit-
nesses to testify as to what happened during the accident.
Plaintiff testified that he had slowed down and began tap-
ping his brakes when he saw an accident in front of him and
that defendant's vehicle had hit plaintiff's truck while it was
still moving. Defendant testified that plaintiff's truck had
been stalled with no brakes or warning lights and that, once
defendant could see plaintiff's vehicle, it was too late to stop.

Much of the closing arguments centered on the par-
ties' testimony and their credibility. At one point, defense
counsel explained why the jury should believe defendant's
claim that plaintiff's vehicle had stalled on the highway by
reminding them of defendant's testimony from the day
before:

"[W]hen [plaintiff's counsel] asked [defendant], well, how
do you know he stalled. [Defendant] told you, the police offi-
cer told him when he came back down, he talked to [plain-
tiff] and [plaintiff] told [the police officer] he had stalled.
That's how he knows."

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Plaintiff's counsel had not attempted to refute that portion of
defendant's testimony in his initial closing argument.10 He
argues that, had he been permitted to rebut defendant's
argument, he would have taken that opportunity to refute
the likely accuracy of defendant's statements. Specifically, he
might have pointed out to the jury that defendant did not call
the police officer to testify, that plaintiff's alleged statement
to the officer was not noted in the police report, and that
there was no other evidence to support defendant's claim,
even in defendant's deposition. Then, he argues, he could
have explained that the jury should not believe defendant's
explanation of the police officer's statements without any
supporting evidence, because defendant had a motive to
make up the story.

Instead of giving plaintiff an opportunity to point out
the possible flaws in defendant's argument and reiterate his
own explanation of the facts, the court told plaintiff that he
was not entitled to further argument. Thus, the last thing
that the jury heard before the jury instructions was defen-
dant's description of the evidence. The trial court gave defen-
dant an advantage-the final argument before the jury-to
which plaintiff had a right under ORCP 58 B(6). Given the
importance and persuasive value of closing arguments, as
well as the particular missed opportunities in this case, we
conclude that the denial of rebuttal argument substantially
affected plaintiff's rights.

We conclude that plaintiff adequately preserved his
claim and that the trial court erred in denying him the oppor-
tunity to present a rebuttal closing argument. Because that
error substantially affected plaintiff's rights, we reverse the
judgment of the trial court.

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

10 Plaintiff concedes that defense counsel's closing argument accurately
described defendant's testimony, However, as plaintiff's counsel later explained, he
had forgotten about that part of defendant's testimony and so had failed to raise
the issue in his initial closing argument.