284 P.3d 1178
Or. Ct. App.2012Background
- Plaintiff appeals a judgment dismissing her conversion and replevin claims as time-barred under ORS 12.080(4).
- Plaintiff contends ORS 12.080(4) incorporates a discovery rule tolling limitations until knowledge of the injury is obtained.
- In 1964 plaintiff’s husband inherited an outfit worn by the 1930 Queen of the Pendleton Round-Up; it was offered for ownership by Lieuallen but no transfer occurred.
- Plaintiff and her husband later displayed the outfit at the Pendleton Round-Up/Hall of Fame; Lieuallen transported it to the Hall of Fame without transfer of ownership.
- Plaintiff inherited the outfit in 1972; it remained on display until 2000 when defendant (an heir of Lieuallen) demanded possession and the Hall of Fame surrendered it.
- Plaintiff, legally blind, did not know it had been removed until 2007; she sued in 2009 for replevin and conversion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 12.080(4) incorporate a discovery rule? | Berry-like discovery rule applies to accrual. | Text of ORS 12.080(4) lacks discovery language; no tolling. | No discovery rule in ORS 12.080(4); accrual governs. |
| Did conversion accrue when defendant exercised wrongful dominion over the property? | Disclosure of concealment tolls no fault; delayed discovery. | Accrual at the time of wrongful control, regardless of notice. | Conversion accrues at wrongful control; no concealment tolling applicable here. |
Key Cases Cited
- Berry v. Branner, 245 Or 307 (1966) (accrual for medical malpractice incorporates discovery rule via ORS 12.010)
- Waxman v. Waxman & Associates, Inc., 224 Or App 499 (2008) (discovery rule not universal under ORS 12.010; contract accrues on breach)
- Gladhart v. Oregon Vineyard Supply Co., 332 Or 226 (2001) (methodology for resolving discovery-rule questions in ORS chapter 12)
- Everman v. Lockwood, 144 Or App 28 (1996) (conversion accrual at time of wrongful control over property)
- Leavitt v. Shook, 47 Or 239 (1905) (no tolling where defendant did not conceal possession)
- Chaney v. Fields Chevrolet, 264 Or 21 (1972) (concealment tolling principle; concealment can toll limitations)
- Cross v. Campbell, 173 Or 477 (1944) (original possession legality affects whether conversion can occur)
- State v. Gaines, 346 Or 160 (2009) (establishes statutory interpretation approach for discovery rules)