In the Matter of the Trust of Gregory Bonome. Crystal Bonome DIENS, Plaintiff-Appellant, υ. Dolores M. BONOME and Patricia J. Bonome, Defendants-Respondents.
19PB05638; A173193
Clackamas County Circuit Court
September 9, 2021
314 Or App 364 | 499 P3d 846
Argued and submitted January 19, reversed and remanded September 9, 2021
Reversed and remanded.
Susie L. Norby, Judge.
Donel Courtney argued the cause and filed the briefs for appellant.
Kevin O‘Connell argued the cause for respondents. Also on the brief was Hagen O‘Connell & Hval LLP.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
AOYAGI, J.
Reversed and remanded.
Petitioner appeals a general judgment that dismissed with prejudice her claim for breach of fiduciary duty. The trial court granted summary judgment for respondents on the basis that petitioner‘s claim was time-barred by the statute of limitations. We agree with petitioner that there is a genuine issue of material fact as to when the statute of limitations started running and, accordingly, reverse and remand.
FACTS
We view the record in the light most favorable to petitioner, to determine whether there was a genuine issue of material fact and, if not, whether respondents were entitled to judgment as a matter of law.
Petitioner‘s father Gregory died in 1985, at age 28, when petitioner was six years old. Petitioner‘s paternal grandfather Harry died six years later, in 1991, when petitioner was 13 years old. Under Harry‘s will, petitioner was entitled to a share of Harry‘s estate, to be held in trust until she reached age 25. In 2004, after she turned 25, petitioner received $60,905.31 from Harry‘s estate, which she withdrew that same year.1 Petitioner never received anything from her father‘s estate.
In October 2018, petitioner‘s younger brother found their father‘s will and showed it to petitioner. The will provided that Gregory‘s personal property would go to Harry, but that Gregory‘s real property would go into trust for the maintenance, support, and education of petitioner and her brother, until petitioner reached age 21, at which point it would be distributed equally between petitioner and her brother.
In May 2019, petitioner filed this action against her grandmother Dolores and her aunt Patricia, asserting
Petitioner alleges that respondents misrepresented to her that her father died insolvent and that they hid from her his will and the trust that it created. Respondents deny the allegations, asserting that Gregory died insolvent and that all of his real estate interests were sold to satisfy his debts, such that no trust ever came into being.
Respondents moved for summary judgment on petitioner‘s claim, both on the merits and on statute-of-limitations grounds. The trial court granted summary judgment on statute-of-limitations grounds. The court then entered a general judgment dismissing petitioner‘s claim with prejudice. Petitioner appeals.
STATUTE OF LIMITATIONS
Petitioner assigns error to the summary judgment ruling. She contends that a genuine issue of material fact exists as to whether her claim is time barred.
As a preliminary matter, we understand the trial court to have ruled based solely on the statute of limitations. In moving for summary judgment, respondents invoked in general terms both “the statute of limitations” and “the statute of ultimate repose,” without citing any specific statutes. Petitioner, who was then pro se, also did not mention any specific statutes, but she focused entirely on the discovery rule, which necessarily is relevant only to a statute of limitations. In granting summary judgment, the trial court expressly relied on two statutes—the 10-year statute of limitations in
Turning to the statute of limitations, we immediately confront the fact that respondents have never clearly identified the specific statute of limitations that they believe bars petitioner‘s claim. As already mentioned, respondents did not base their motion on any specific statute of limitations, and petitioner focused entirely on the discovery rule in opposing the motion. Left to its own devices, the trial court relied on
In response, respondents address the statute of limitations only briefly, and they have not articulated a consistent position. They mention
In these most unusual circumstances, we decline to conclusively resolve which statute of limitations applies. We agree with petitioner that
We turn to the discovery rule. In opposing summary judgment, petitioner relied on the discovery rule, arguing that her claim was not time barred because she did not discover the alleged breach of fiduciary duty (or fraud) until October 2018, when her brother found their father‘s will, and filed her claim only seven months later. The trial court
Under the discovery rule, the statute of limitations began to run on petitioner‘s claim when petitioner knew ““or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements of a claim (harm, causation, and tortious conduct) exist[ed].“” McLean, 189 Or App at 424-25 (quoting Gaston v. Parsons, 318 Or 247, 256, 864 P2d 1319 (1994)) (brackets omitted). “The standard does not require actual knowledge that each element of a claim is present; rather, the record must demonstrate that the plaintiff either actually discovered or, in the exercise of reasonable care, should have discovered that the defendant had violated the plaintiff‘s legally protected interest.” Id. at 425. “[T]he facts that a plaintiff must have discovered or be deemed to have discovered include not only the conduct of the defendant, but also *** the tortious nature of that conduct.” Doe v. Lake Oswego School District, 353 Or 321, 331, 297 P3d 1287 (2013).
“[T]he discovery rule applies an objective standard—how a reasonable person of ordinary prudence would have acted in the same or a similar situation.” Padrick v. Lyons, 277 Or App 455, 466, 372 P3d 528, rev den, 360 Or 26 (2016). In assessing whether a plaintiff acted diligently to discover the relevant facts, the factfinder may consider “[t]he nature of the plaintiff‘s relationship with the defendant.” Id. “Whether a plaintiff has discovered an injury generally presents a factual question for the jury, but the question is susceptible to judgment as a matter of law if the only conclusion a reasonable jury could reach is that the plaintiff knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter.” Id. (internal quotation marks omitted).
Thus, in reviewing the trial court‘s ruling, we ask: Does the record give rise to a triable issue of fact as to whether, more than two (or six) years before petitioner filed her claim, petitioner knew, or in the exercise of reasonable care should have known, facts that would have made a reasonable person aware of a substantial possibility that respondents had breached a fiduciary duty to petitioner (or committed fraud) and that a financial loss had resulted to petitioner? See id. at 467-68 (framing the question).
We agree with petitioner that there is a triable issue of fact on this summary judgment record as to when the statute of limitations began running. In so concluding, we emphasize that the burden of proof was on respondents to prove their affirmative defense, such that a failure of proof cuts in petitioner‘s favor. See T. R. v. Boy Scouts of America, 344 Or 282, 299, 181 P3d 758 (2008) (“The statute of limitations is an affirmative defense, and the [defendant] had the burden of persuasion on that issue.“); Riverview Condo. Assn. v. Cypress Ventures (A150586), 266 Or App 574, 591, 339 P3d 447 (2014) (recognizing that statutes of limitation and repose are affirmative defenses, that the defendants therefore had the burden of persuasion on their statute-of-repose defense, and that “an absence of evidence” on a fact issue material to the defense would prevent summary judgment for the defendants on the defense).
As for the court‘s specific reasoning, we disagree that petitioner‘s 2004 withdrawal established the latest date, as a matter of law, by which petitioner should have discovered her claim. Petitioner withdrew funds that she inherited from her grandfather Harry. On this record, we do not see how receiving funds from Harry‘s estate would have tipped off petitioner—acting as a reasonable person exercising reasonable care—of a potential breach of fiduciary duty in the administration of her father Gregory‘s estate.
We therefore conclude that the trial court erred in granting summary judgment for respondents based on the statute of limitations.
ALTERNATIVE BASIS TO AFFIRM
As an alternative basis to affirm, respondents argue that, even if they were not entitled to summary judgment on
Because respondents made the same argument to the trial court, it is properly before us. Moreover, alternative bases for summary judgment that were raised but not decided below are generally well-suited to resolution on appeal, insofar as the propriety of summary judgment presents purely a question of law. There is a procedural wrinkle in this case, however, that leads us to decline to decide the alternative basis for summary judgment in the first instance on appeal.
During the summary judgment proceeding, petitioner asked the trial court to compel discovery from respondents, particularly tax documents. The trial court did not rule on the discovery issue, calling it “moot” after ruling on the statute of limitations. The discovery issue is no longer “moot” given our disposition. Moreover, the court made certain statements suggesting that it was at least considering ordering a continuance for discovery purposes before ruling on summary judgment on the merits of petitioner‘s claim. See
We express no opinion on whether the trial court should grant a continuance or compel discovery. Given the court‘s statements, however, we will not foreclose the opportunity for it to exercise discretion. See Sherertz v. Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021) (describing
Reversed and remanded.