316 P.3d 318
Or. Ct. App.2013Background
- Plaintiff alleges attorney malpractice in an adoption matter for serving by publication.
- Defendant moved to dismiss under ORCP 21 A(9) as untimely; trial court granted and plaintiff appealed.
- Oregon uses a discovery rule for legal malpractice accrual: accrual occurs when client knows or should know there is a substantial possibility of actionable injury.
- A tortious legal malpractice claim accrues when the client knows there is harm, causation, and tortious conduct by the lawyer.
- The dispute centers on when plaintiff knew or should have known of the malpractice—whether by February 23, 2009, or later.
- The court reversed and remanded, holding unresolved factual questions about accrual preclude dismissal on statute-of-limitations grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does legal malpractice accrue under the discovery rule? | Plaintiff argues accrual occurs later than 2009 given uncertainty. | Defendant argues accrual occurred by June 2007 when the motion to set aside was filed. | Issue is a factual question; not timetimed as a matter of law. |
| Does the complaint on its face establish untimeliness under ORCP 21 A(9)? | Plaintiff alleges accrual questions preclude dismissal. | Defendant contends facts show accrual by 2007 or 2009. | Not dispositive on face; factual questions remain for jury. |
| Did the plaintiff know or should have known of the malpractice by Feb 23, 2009? | Knowledge could be delayed; discovery rule requires factual inquiry. | Knowledge arose earlier when issues with the affidavit surfaced. | Question of fact; cannot resolve on motion to dismiss. |
Key Cases Cited
- U.S. Nat’l Bank v. Davies, 274 Or 663 (Or. 1976) (establishes the two-year limitations period for actions not otherwise prescribed)
- Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270 (Or. 2011) (discovery rule governs when a legal malpractice claim accrues)
- Murphy v. Allstate Ins. Co., 251 Or App 316 (Or. App. 2012) (discovery rule applied to legal malpractice claims)
- Doe v. Lake Oswego School District, 353 Or 321 (Or. 2013) (motion to dismiss under ORCP 21 A(9) reviewed for facial timeliness)
- Yanney v. Koehler, 147 Or App 269 (Or. App. 1997) (context on ORCP 21 A(8) review and favorable inferences)
- Denucci v. Henningsen, 248 Or App 59 (Or. App. 2012) (discovery-rule timing questions are factual)
- Fliegel v. Davis, 73 Or App 546 (Or. App. 1985) (recognizes difficulty in proving when malpractice claim accrues)
- J. G. v. N. D. G., 348 Or 525 (Or. 2010) (Supreme Court addressed setting aside adoption and associated procedural issues)