339 P.3d 447
Or. Ct. App.2014Background
- Condominium Association sues Brookfield, Bank One, Morse, and Bracken for water intrusion and related damages from construction defects and post-construction conduct.
- Brookfield acted as general contractor for Riverview, later turnover to unit owners occurred in 2002 after Bank One’s involvement.
- Water leaks and window siding issues emerged from 2003 onward; multiple repairs were performed by contractors with notices of defection.
- Association alleges construction defects, concealment, misrepresentation, fiduciary breaches, and nuisance related to water intrusion and management.
- Trial court granted summary judgment: (a) construction claims barred by repose; (b) nuisance limited by six-year limit; (c) post-construction claims barred by limitations; leading to a general dismissal.
- On appeal, court partially reverses: construction-defect and nuisance claims may survive due to factual questions on substantial completion and discovery; other claims affirmed as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which repose statute governs construction claims? | 12.135 controls over 12.115; 12.115 inapplicable to construction claims. | Both 12.115 and 12.135 could apply; 12.135 may bar claims. | 12.135 controls; genuine fact issues on substantial completion preclude summary dismissal. |
| Date of substantial completion under ORS 12.135(4)(b)? | Cypress Ventures accepted completion later; spectrum of evidence supports tolling. | Evidence shows last work and occupancy may trigger acceptance. | Genuine issues of material fact about substantial completion; not dismissal on this basis. |
| Do six-year or two-year statutes apply to construction-defect claims under ORS 12.080(3) and ORS 12.110/12.135? | Claims arise from interference with real property interests, so six-year limit applies. | Claims are subject to two-year or construction-specific limits. | Six-year limit applies to construction-defect claims; issues of accrual/discovery create triable questions. |
| Are misrepresentation, fiduciary-duty, and condominium-act claims timely under the two-year limit? | Misrepresentation and related claims should be governed by six-year limit due to real-property interest. | These claims are governed by ORS 12.110(1) with discovery; some claims arise from contract. | Two-year statute (ORS 12.110(1)) governs misrepresentation, fiduciary, and Condominium Act/nondisclosure claims; discovery issues preclude timely filing. |
| Does Rice v. Rabb alter discovery rule applicability for ORS 12.080(3) nuisance claims? | Discovery applies to tort actions under 12.080; discovery triggers tolling. | Discovery rule may not apply to nuisance claims. | Rice applies; nuisance claims are subject to discovery; genuine issues on discovery preclude summary dismissal. |
Key Cases Cited
- Beveridge v. King, 292 Or 771 (1982) (six-year limit for real-property injury; not an action on contract)
- Taylor v. Settecase, 69 Or App 222 (1984) (construction-defect injuries treated under 12.080(3))
- Sutter v. Bingham Construction, Inc., 81 Or App 16 (1986) (construction defects fall under ORS 12.080(3))
- Sunset Presbyterian Church v. Brockamp & Jaeger, 254 Or App 24 (2012) (interplay of ORS 12.115 and ORS 12.135; discovery/refinement later)
- PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486 (2013) (meaning of substantial completion; contractee acceptance)
- Securities-Intermountain v. Sunset Fuel, 289 Or 243 (1980) (OR 12.135(1) scope; damages not limited to tort)
- Abraham v. T. Henry Construction, Inc., 350 Or 29 (2011) (footnote on limitations for construction-related torts)
- Rice v. Rabb, 354 Or 721 (2014) (discovery rule applied to ORS 12.080 tort claims)
- Morrison v. Ardee Pest Control, 62 Or App 506 (1983) (misrepresentation not real-property injury; suits mischaracterized)
- Gaston v. Parsons, 318 Or 247 (1994) (discovery of injury elements for limitations)