In this professional negligence action, plaintiff alleged that defendant, an attorney who represented her in an adoption proceeding, committed malpractice by arranging to serve the birth mother with the adoption petition by publication. Defendant moved to dismiss the complaint under ORCP 21 A(9)
We begin with a summary of the relevant law. A professional negligence action must be filed within two years of the date on which the claim accrues. ORS 12.010; ORS 12.110(1); U.S. Nat’l Bank v. Davies,
Dismissal under ORCP 21 A(9) is appropriate only when a complaint shows on its face that the action was not timely filed. ORCP 21 A(9) (a defendant may move to dismiss on the ground that “the pleading shows that the action has not been commenced within the time limited by statute”); Doe v. Lake Oswego School District,
Given those standards, the issue in this case is whether, based on the facts alleged in plaintiffs complaint, a reasonable trier of fact could find that plaintiff filed her complaint less than two years after she knew or, in the exercise of reasonable care, should have known of a substantial possibility that (1) she had suffered harm, (2) the harm was caused by defendant’s acts or omissions, and (3) defendant’s acts or omissions were tortious. If a reasonable trier of fact could so find, then the trial court erred in dismissing the complaint. Because plaintiff filed her complaint on February 23, 2011, the complaint must raise a question of fact about whether she knew or she did not know and, in the exercise of reasonable care, should not have known of the elements of her claim until February 23, 2009 or thereafter.
The relevant facts, as alleged in plaintiffs complaint, are as follows.
In January 2006, defendant drafted a motion for an order authorizing service of the adoption petition on J by publication. Service by publication is described in ORCP 7 D(6), which requires, inter alia, “a showing by affidavit or declaration that service cannot be made by any method otherwise specified in these rules or other rule or statute [.]” ORCP 7 D(6)(a). Defendant drafted an affidavit, which plaintiff signed, that stated that “the present whereabouts of [J] are unknown to me.”
Defendant filed the motion and affidavit, and the circuit court ordered service by publication. J was served by publication with the adoption petition and an order to show cause why her consent to the adoption should not be waived. After service by publication had been effected, J was arrested. Plaintiff advised defendant that J had been arrested and was being held at the Multnomah County-Justice Center. Defendant did not amend her pleadings or advise the court that J was being held at the justice center. J did not appear at the show-cause hearing. The circuit court waived J’s consent to the adoption and, on June 2, 2006, granted plaintiffs adoption of A.
On June 1, 2007, J moved to set aside A’s adoption, claiming that the waiver of her consent to the adoption had violated her due process rights. J alleged that plaintiff had “perpetrated a fraud” on the court by seeking service by publication and claiming that J’s whereabouts were unknown while knowing that J was having regular visits with R at a DHS office. During a February 25, 2009, hearing on J’s motion, in the words of plaintiffs complaint:
“Judge Tennyson *** opined that she was stunned ‘that [plaintiff] and/or her lawyer at the time [of seeking service of the adoption by publication] was filing an affidavit in [A]’s adoption case that represented that [plaintiff] did not know an address for [J] when [J] was regularly visiting [R] at Juvenile Court * * Judge Tennyson went on to opine that she thought the process by which service bypublication was obtained was not ‘appropriate.’”
(Second brackets in original.) Nevertheless, the trial court dismissed J’s motion to set aside the adoption. J appealed, and this court affirmed; J then sought review from the Supreme Court, which reversed. J. G. v. N. D. G.,
Plaintiffs complaint alleged that defendant breached the following duties to plaintiff:
“A. Not to submit any pleading to the Court that was false or contained a material omission relevant to any requests made to the Court;
“B. To include in the affidavit supporting service by publication that she prepared for Plaintiff, that [J] was having regular visitation with [R] at a local DHS office;
“C. After she became aware of [J] ’s arrest on March 31, 2006, to amend her pleadings or otherwise inform the Court that a location for [J] had been obtained;
“D. After the order waiving [J] and birth father’s consent had been obtained, but before submitting the adoption decree to the Court, to inform the Court that [J] had been located;
“E. To advise Plaintiff regarding the consequences of proceeding with an adoption through a notice by publication premised upon a material omission to-wit that [J] was having regular contact with [R] at a DHS office, specifically that such an adoption would be vulnerable to being set aside later by motion of [J];
“F. To advise Plaintiff regarding the consequences of not informing the Court of [J]’s arrest and location after March 31, 2006 and before the order waiving the consent had been granted and thereafter, subsequent to the order waiving consent having been granted and prior to the submission of the adoption, specifically that such an adoption would be vulnerable to being set aside by later motion of [J].”
Plaintiffs complaint further alleged that, as a result of defendant’s breach of those duties, plaintiff had incurred economic damages, including attorney fees, and had suffered emotional distress. Plaintiff sought $36,348 in economic damages and $100,000 in noneconomic damages.
As mentioned, defendant moved to dismiss plaintiffs complaint on the ground that it was barred by the statute of limitations. In support of her motion, defendant argued that the allegations in the complaint show that plaintiff knew or, in the exercise of reasonable care, should have known of her legal malpractice claim as soon as J moved to set aside the adoption in June 2007. According to defendant, at that point, plaintiff knew or should have known that (1) she had been harmed (because the adoption was being challenged), (2) the harm was caused by defendant (because defendant had prepared the affidavit in support of service by publication that was the basis for the challenge to the adoption), and (3) defendant’s actions were negligent (because the affidavit represented that J’s present whereabouts were unknown even though plaintiff had informed defendant that J was visiting R at DHS and, later, that J had been arrested). Thus, defendant argued, plaintiff’s claim accrued in June 2007, more than three and a half years before plaintiff filed her complaint in February 2011.
“The court holds that the statute of limitations in this case began to run when plaintiff learned that [ J] had filed a motion to set aside the adoption based on the false affidavit that plaintiff had signed. At that time, plaintiff knew or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that defendant’s purported advice to sign and submit the false affidavit was tortious and harmed her. * * * When plaintiff learned that a motion to set aside the adoption had been filed based on her false affidavit, plaintiff knew or should have known that some harm had been incurred and that a claim existed. * * * Plaintiff suggests that, as a lay person, she lacked the legal sophistication to appreciate that she had a claim of legal malpractice. However, a reasonable person in her circumstances — after having signed the false affidavit and then learning of the motion to set aside the adoption based on the false affidavit- — -would have been aware of a substantial possibility that a claim of malpractice existed.
“The complaint in this case was filed on February 23, 2011. Nothing in the complaint alleges that plaintiff did not learn of [ J] ’s motion to set aside the adoption until on or after February 23, 2009, i.e., within two years of the date the complaint was filed. * * * Accordingly, defendant’s motion to dismiss based on statute of limitations is granted.”
(Emphasis in original.)
Plaintiff appeals, asserting that the trial court erred in dismissing her complaint as untimely. Plaintiff argues that the facts alleged in her complaint establish that she did not know or have reason to know that defendant’s conduct had been tortious until, at the earliest, the hearing on February 25, 2009, when, according to the complaint, Judge Tennyson stated that “she thought the process by which service by publication was obtained was not ‘appropriate.’”
At the outset, we note that, under our standard of review, the question is not whether the facts alleged in plaintiffs complaint established, as a matter of law, that the complaint was timely filed. Rather, it is whether those facts established, as a matter of law, that it was not timely filed. Thus, dismissal was inappropriate if, as plaintiff contends in her alternative argument, there are unresolved factual issues about the timeliness of her complaint.
The fact that J moved to set aside the adoption did not, in and of itself, inform plaintiff of a substantial possibility that defendant had been negligent. As the Supreme Court has observed, a legal malpractice claim does not necessarily accrue when the client is sued.
A necessary premise of the trial court’s contrary conclusion was that plaintiff knew or, in the exercise of reasonable care, should have known, that the affidavit was false. Having made that assumption, the court concluded that, when J filed the motion, plaintiff realized, or should have realized, that defendant’s advice was bad. It is possible that, if a party’s attorney advises the party to make what the party knows is a false statement in a court proceeding and the result of the proceeding is subsequently challenged on the basis of the false statement, the party should know that the attorney’s advice was tortious. The problem is that, here, nothing in the complaint compels the conclusion that plaintiff knew or should have known that the affidavit was false more than two years before she filed the complaint.
As noted above, in the affidavit, plaintiff averred that “the present whereabouts of [J] are unknown to me.” Defendant drafted that language and plaintiff signed the affidavit despite the fact that plaintiff had informed defendant that J had regular visits with R at a DHS office. Nothing about that scenario shows that, as a matter of law, plaintiff knew or should have known that the affidavit was false. The phrase “present whereabouts * * * are unknown” is susceptible to several understandings, and it is not necessarily incompatible with plaintiffs knowledge that J visited with R.
Even if we were to conclude that, when plaintiff learned that J had filed the motion, she had some reason to suspect that defendant’s conduct might have been tor-tious, that would not allow us to conclude that, as a matter of law, the claim accrued at that time. That is so because, even where the circumstances give rise to a duty to inquire further, which itself is a question of fact, Cole v. Sunnyside Marketplace, LLC,
“Application of the discovery rule presents a factual question for determination by a jury unless the only conclusion that a 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.” Kaseberg,
Reversed and remanded.
Notes
ORCP 21 A(9) provides that the defense “that the pleading shows that the action has not been commenced within the time limited by statute” may be made by motion to dismiss.
ORS 12.010 provides:
“Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.”
ORS 12.110(1) provides:
“An action * * * for any injury to the person or rights of another, not arising under contract, and not especially enumerated in this chapter, shall be commenced within two years [.] ”
An action for professional negligence is one “not especially enumerated in this chapter.”
As noted, plaintiff filed her original complaint on February 23, 2011. On March 28, 2011, before defendant had filed a responsive pleading, plaintiff filed her first amended complaint. Defendant then moved to dismiss the first amended complaint. All references to the allegations of the complaint in this opinion are to the first amended complaint.
In J. G., the Supreme Court explained that the trial court had dismissed J’s petition to set aside the adoption based on Multnomah County Supplemental Local Rule 8.012(2), which requires in part that “[m]otions not settled or reset within 5 months of filing” be “automatically dismissed” and on the doctrine of laches as applied to J’s delay of approximately 18 months in pursuing her motion after she had filed it.
Plaintiff also argues that she lacked knowledge or reason to know that she had suffered harm until 2010, when the Supreme Court reversed the trial court’s dismissal of the motion to set aside the adoption. Because we agree with plaintiff that the trial court erred in dismissing the complaint because a fact question exists as to whether, as of February 23, 2009, plaintiff knew or should have known that defendant’s acts or omissions were tortious, we do not reach plaintiffs argument regarding harm.
Here, J did not sue plaintiff but, rather, moved to set aside plaintiffs adoption of A as part of the adoption case. Nonetheless, plaintiff was subjected to additional adversarial legal proceedings, and those proceedings are based upon actions that plaintiff took as a result of defendant’s legal advice.
We express no opinion on the question whether, as a legal matter, the affidavit was false or incomplete in light of ORCP 7 D(6). The question we address is what plaintiff would have understood the affidavit to mean.