Diens v. Bonome, 499 P.3d 846

Petitioner Gregory Bonome’s daughter (petitioner) sued her grandmother Dolores (personal representative/trustee) and aunt Patricia (POA) for breach of fiduciary duty, alleging they hid Gregory’s will and a trust and misrepresented that Gregory died insolvent.
Gregory died in 1985; his father Harry died in 1991. Harry’s will created a trust for petitioner until a stated age; petitioner received funds from Harry’s estate (withdrawn in 2004) but never received anything from Gregory’s estate.
In October 2018 petitioner learned of Gregory’s will (found by her brother) showing real property intended to be held in trust for petitioner and her brother; petitioner sued in May 2019.
Respondents moved for summary judgment on the merits and on statute-of-limitations grounds; the trial court granted summary judgment, dismissing the claim with prejudice based on ORS 12.140 and ORS 12.070.
On appeal the court applied the discovery rule standard, held there is a genuine issue of material fact when petitioner knew or should have known of a claim, and reversed and remanded because respondents failed to carry their burden on the limitations defense.
The appellate court declined to definitively pick which limitations statute applied and declined to decide the merits (remanding so the trial court may address discovery and possibly reconsider the merits).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the claim is time‑barred under the statute of limitations (discovery rule)	Discovery occurred Oct 2018; suit filed within months; limitations therefore tolled until discovery	Petitioner should have discovered claim earlier (trial court pointed to 2004 withdrawal); limitations expired	Reversed: triable factual issue exists whether petitioner knew or should have known earlier; summary judgment on limitations improper
Which limitations statute applies	ORS 12.110(1) (two‑year period with discovery rule for fraud/breach)	Respondents cited variously ORS 12.140, ORS 12.070, and appended ORS 130.820 (six‑year trustee statute)	Court declined to conclusively decide; excluded ORS 12.070 and ORS 12.140 as inapt, and ruled disposition is the same under 2‑ or 6‑year periods given discovery‑rule issues
Alternative: summary judgment on the merits (failure to identify specific property)	Concealment of will/trust prevented discovery; merits unresolved without further discovery	Petitioner failed to identify specific real property that should have been in trust; merits fail as a matter of law	Court declined to decide on appeal; remanded so trial court can consider discovery requests and exercise discretion before resolving merits

McLean v. Charles Ellis Realty, Inc., 189 Or App 417 (applies discovery rule to breach of fiduciary duty and fraud claims)
Gaston v. Parsons, 318 Or 247 (defines discovery‑rule standard for when limitations begin to run)
Doe v. Lake Oswego Sch. Dist., 353 Or 321 (tortious nature of conduct must be discoverable under discovery rule)
Padrick v. Lyons, 277 Or App 455 (objective discovery standard and role of plaintiff‑defendant relationship)
T. R. v. Boy Scouts of Am., 344 Or 282 (statute of limitations is an affirmative defense; defendant bears burden of proof)
Riverview Condo. Assn. v. Cypress Ventures, 266 Or App 574 (absence of evidence on a fact material to limitations prevents summary judgment for defendants)
Doyle v. City of Medford, 271 Or App 458 (describes ORS 12.140 as residual statute of limitations)