I. FACTS
On review of the grant of a motion to dismiss under ORCP 21 A(8), we accept as true all well-pleaded factual allegations in the complaint and make reasonable inferences from those allegations in favor of plaintiffs. Yanney v. Koehler ,
Defendants Olen and Lois Lee, Katherine Hagstrom, and the other individual defendants (collectively landowners) own residential lots in thе Orion Estates neighborhood in Bend. Their lots are located adjacent to the Central Oregon Irrigation Canal. A 20-foot-wide dirt path, hereinafter "the canal path," runs along the canal through the 15 canal-front lots in Orion Estates and continues an unspecified distance north and south of Orion Estates.
The only easements shown on the plat map are the canal easement line and utility easements. Fifty-six people, whom plaintiffs identify as the then-owners of the Orion Estates lots, signed the dedication on the plat. Multiple governmental officials approved the plat, including the then-chairman of COID. The following excerpt from the Orion Estates plat map shows the loсation of the canal-front lots, the "canal easement line," and the canal. Annotations have been added to indicate the lots currently owned by the Lees (lot 16) and Hagstrom (lot 19). The canal path is located in the area between the canal easement line and the canal.
In 2006, a developer purchased the golf course property and thereafter built the Orion Greens neighborhood in its placе. As in Orion Estates, the canal path runs through the canal-front lots in Orion Greens. Heading north from Orion Estates, the canal-front lots in Orion Greens are numbered 24, 25, 26, and 27. (Orion Estates lot 12 abuts Orion Greens lot 24.) The City of Bend required the developer of Orion Greens to provide public access to the canal path as a condition of development, specifically a "12' pedestrian access easement" and a "50' primary trail easement to B.M.P.R.D. [Bend Metro Parks and Recreation District]." As a result, a 12-foot-wide paved pedestrian path currently runs across Orion Greens lot 27 from a public street to the canal path. Plaintiffs allege that the BMPRD easement runs along the back of Orion Greens lots 24, 25, and 26, coextensive with the canal path, and provides for public
At some point after 2007, three things happened, not necessarily in this order. First, defendant COID entered into two "joint road use agreements" with, respectively, the Lees and Hagstrom. The complaint describes the agreements
On an unspecified date, plaintiffs purchased a home in the Kings Forest First Addition neighborhood, which, as shown on the Orion Estates plat map, is located immediately west of Orion Estates. According to the complaint, plaintiffs have access to the canal path by travelling on public streets and then using the paved pedestrian path across Orion Greens lot 27. "Plaintiffs and other members of the public walk or bicycle along the Canal Path almost daily, [but] their ability to proceed north or south further along the Canal Path is prevented by Defendants' gates and fences." In plaintiffs' view, the gates also creаte a safety hazard due to rescuers being unable to access a portion of the canal bank; four people and five dogs have drowned in unspecified portions of the canal since 1995.
On September 9, 2014, plaintiffs gave a presentation to the COID Board of Directors, which, according to the complaint, "demonstrat[ed] the facts which gave rise to Plaintiffs' claims." The complaint does not describe the content of the presentation, who attended it, or why it was directed to COID.
On February 9, 2015, plaintiffs filed a complaint against the Lees and Hagstrom, challenging the lеgality of their gates. Thereafter, plaintiffs learned from counsel for the Lees and Hagstrom about the joint road use agreements with COID. Until that time, plaintiffs had understood that COID had not agreed to the gates because COID's prior counsel Dickson had denied to plaintiffs that COID
In their complaint, plaintiffs alleged the existence of a public easement to use the canal path in Orion Estates, both by dedication (based on the 1980 Orion Estates plat) and by prescription. Plaintiffs asserted three claims against the Lees, Hagstrom, and COID: (1) interference with use of a public easement, (2) hazardous private nuisance, and (3) declaratory judgment. Regarding COID in particular, plaintiffs alleged that COID had wrongfully and unlawfully blocked public access to the canal path by "affirmatively permitting [the] construction" of the Lees' and Hagstrom's gates and that COID, together with the Lees and Hagstrom, had
Defendant COID moved to dismiss plaintiffs' complaint under ORCP 21 A(8) for failure to state ultimate facts sufficient to constitute a claim, making multiple arguments. Defendant landowners filed their own motion to dismiss under ORCP 21 A(8), making different arguments. After hearing, the trial court dismissed plaintiffs' claims on three independent grounds, all of which had been argued by COID: (1) plaintiffs lack standing; (2) plaintiffs failed to give timely OTCA notice of their claims to COID; and
II. ANALYSIS
A. First Assignment of Error
In their first assignment of error, plaintiffs challenge the trial court's dismissal of their claims for lack of standing. Essentially the same standing requirements apply to Declaratory Judgments Act claims and claims for injunctive relief against a public body. See ORS 28.020 (standing requirements for Declaratory Judgments Act); Morgan v. Sisters School District No. 6 ,
Plaintiffs argue that lawful access is not a required element of an easement claim and that, in any event, they did plead lawful access. It is true that lawful access is not an element, see Bloomfield v. Weakland ,
However, assuming without deciding that plaintiffs were required to affirmatively allege a lawful means of access to the portion of the canal path located in Orion Estates, their complaint was sufficient to meet that requirement. Accepting all well-pleaded factual allegations as true and making reasonable inferences in favor of plaintiffs, Yanney ,
As such, the impassability of the canal path due to the Lees' and Hagstrom's gates constitutes a real and probable injury, and requiring the removal of the gates (as requested in the complaint) would have a practical effect on plaintiffs' rights. Morgan ,
B. Second Assignment of Error
Plaintiffs next challenge the trial court's dismissal of their claims against COID based on failure to give timely notice under the OTCA. Plaintiffs do not contest that the OTCA applies to their claims against COID, a municipal corporation. See ORS 30.260(4) (defining "public body" for purposes of the OTCA); Barns v. City of Eugene ,
ORS 30.275(1) provides: "No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 [ (the OTCA) ] shall be maintained unless notice of claim is given as required by this section." For claims other than wrongful death, the notice period is 180 days. ORS 30.275(2)(b). The notice period does not begin to run "until plaintiff has a rеasonable opportunity to discover his injury and the identity of the party responsible for that injury." Adams v. Oregon State Police ,
As a preliminary matter, it is important to recognize that defendant COID moved to dismiss under ORCP 21 A(8) for "failure to state ultimate facts sufficient to constitute a
In this case, COID moved to dismiss under ORCP 21 A(8), which is limited to the complaint, and the trial court expressly stated in its order that "the Court finds that Plaintiffs' Second Amended Complaint demonstrates on its face that Plaintiffs lack standing, that Plaintiffs have failed to give timely or proper notice under the [OTCA], and that the statute of limitations set out in the [OTCA] bars this action * * *." (Emphasis added.) Accordingly, we limit our review to whether, accepting all well-pleaded factual allegations as true and making reasonable inferences in favor of plaintiffs, plaintiffs adequately pleaded OTCA notice. Skille v. Martinez ,
When the discovery rule is at issue, it often injects the need for fact finding into the notice analysis. When a "reasonably prudent person" would have perceived COID's role in plaintiffs' injury is the kind of question that is "generally a question of fact determined by an objective standard." Doe v. Lake Oswego School District ,
In COID's view, which the trial court adopted, the OTCA notice period began to run in 2009 when COID publicly recorded the joint road use agreements with the Lees and Hagstrom, and any claims regarding a public easement had to be noticed within 180 days of that event. By contrast, plaintiffs assert that the OTCA notice period began to run when plaintiffs personally discovered their claims against COID, which they allege was sometime after February 9, 2015. Neither plaintiffs nor COID have addressed the fundamental disagreеment underlying their respective arguments: whether a single OTCA notice period applies to the public generally on a public easement claim, or whether the notice period applies individually to individual plaintiffs even though the claim includes a "public" element. That is a question of statutory construction that neither party has meaningfully briefed.
In construing a statute, we examine the text of the statute in context. State v. Gaines ,
The OTCA applies to torts committed by public bodies and their officers, employees, and agents acting within the scope of their employment or duties. ORS 30.265(1). For purposes of the OTCA, a "tort" is "the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy." ORS 30.260(8) (emphasis added). Most
In concluding that the OTCA notice period runs on an individual basis, we stress two points. First, the parties have not provided any legislative history regarding ORS 30.275. See Gaines ,
We turn to the facts as alleged to determine whether a reasonable factfinder could find that plaintiffs gave timely notice of their claims against COID under the OTCA. At the latest, plaintiffs gave COID notice of their claims on July 1, 2015. See ORS 30.275(3)(c) (identifying "commencement of an action on the claim" as a form of notice under the OTCA); Cannon v. Dept. of Justice ,
Of course, actual knоwledge is not the only issue when the discovery rule applies. See Buchwalter-Drumm v. Dept. of Human Services ,
C. Third Assignment of Error
Plaintiffs also challenge the trial court's dismissal of their claims based on the OTCA's two-year statute of limitations. Subject to limited exceptions not applicable here, "an action arising from any act or omission of a public body or an officer, employee оr agent of a public body within the scope of [the OTCA] shall be commenced within two years after the alleged loss or injury." ORS 30.275(9). Dismissal based on the statute of limitations "is appropriate only when a complaint shows on its face that the action was not timely filed." Guirma v. O'Brien ,
D. Fourth Assignment of Error
Because of our disposition of the first three assignments of error, we need not resolve the fourth assignment of error, in which plaintiffs argue that the trial court erroneously applied the OTCA to defendant landowners, who are private parties, instead of limiting it to defendant COID. No one argued to the trial court that the OTCA applied to anyone other than COID, and we do not understand the trial court's order or judgment to apply the OTCA to anyone other than COID.
At the same time, it is admittedly unclear on what basis the trial court dismissed plaintiffs' claims against defendant landowners. They are not subject to the OTCA as private parties, and they did not join COID's standing argument, the only non-OTCA argument on which dismissal was granted. Citing Outdoor Media Dimensions, Inc. v. State of Oregon ,
For procedural reasons, we do not address the fifth, sixth, and seventh assignments of error. Respectively, plaintiffs defend the sufficiency of the complaint to establish the
III. CONCLUSION
Having concluded that the trial court erred in each of the particulars raised in the first three assignments of error, we reverse and remand. We leave for the trial court to decide on remand, as appropriate, any bases for dismissal that were previously raised but not decided, including those raised in plaintiffs' fifth, sixth, and seventh assignments of error.
Reversed and remanded.
Notes
The complaint names 22 individual defendants, who are the current owners of the 15 canal-front lots in Orion Estates. Only the Lees, Hagstrom, and one other individual defendant made an appearance in the trial court, and none of the individual defendants filed an answering brief on appeal.
Defendant COID has directed us to a copy of the current BMPRD trail map and asks us to take judicial notice of the fact that BMPRD does not list the canal path as a "public trail." Even if we were to consider the contents of the trail map a proper matter for judicial notice, the fact that the canal path is not included on BMPRD's published public trail map would not defеat plaintiffs' allegation that the easement exists and is used by the neighboring public.
The second amended complaint was the operative complaint at the time of judgment; unless otherwise specified, references herein to "the complaint" are to the second amended complaint. The procedural history of the complaints and addition of defendants is relevant, however, to our notice and statute of limitations analyses.
Defendant COID did not challenge the third standing requirement, which is "some injury or other impact upon a legally recognized interest beyond аn abstract interest in the correct application or the validity of the law." Morgan ,
Plaintiffs' claims against COID are expressly based on COID's joint road use agreements with the Lees and Hagstrom. In the trial court and on appeal, COID's position has been that the recording date of the joint road use agreements is the critical date for OTCA notice and statute of limitations purposes, while plaintiffs' position has been that the discovery date of the joint road use agreements is the critical date. No one has argued, and we do not consider, any other legal theories for including COID in the action. For example, we do not consider how the OTCA would apply if COID were made a party solely because of its, as plaintiffs call it, "superior" easement rights.
Our case law regarding dismissal based on the statute of limitations is largely under ORCP 21 A(9), which applies when "the pleading shows that the action has not been commenced within the time limited by statute." E.g. , Guirma ,