Joan RICE, Petitioner on Review, υ. Mary RABB, Respondent on Review, and R-UP & HAPPY CANYON HALL OF FAME, Defendant.
CC CV091445; CA A145606; SC S060790
In the Supreme Court of the State of Oregon
January 30, 2014
320 P.3d 554 | 721 Or. 320
Argued and submitted September 16, 2013, decision of Court of Appeals reversed; judgment of circuit court reversed, and case remanded to circuit court for further proceedings January 30, 2014
No appearance contra.
Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.**
BALDWIN, J.
BALDWIN, J.
This case requires us to decide whether the six-year statute of limitations applicable to conversion and replevin claims under
Because the trial court decided this case on a motion to dismiss, we take the facts, and all favorable inferences that can be drawn from those facts, as alleged in plaintiff‘s second amended complaint. See Huff v. Great Western Seed Co., 322 Or 457, 460, 909 P2d 858 (1996) (stating standard of review).
Lois McIntyre was the 1930 “Queen of the Pendleton Round-Up.” In that role, she acquired a “Queen Outfit” that consisted of a white satin shirt, a white leather vest and riding skirt with black and white fringe, and a black scarf. In 1964, plaintiff‘s husband, who was McIntyre‘s son, inherited the outfit from McIntyre. Shortly after inheriting the outfit, plaintiff and her husband were approached by Lieuallen, who requested that she be given the outfit. However, plaintiff and her husband declined the request.
Plaintiff and her husband later decided to display the outfit at the Pendleton Round-Up and Happy Canyon Hall of Fame (Hall of Fame). They delivered the outfit to Lieuallen for her to deliver to the Hall of Fame for that purpose, but did not gift or transfer ownership of the outfit to Lieuallen. Lieuallen delivered the outfit to the Hall of Fame as directed. In 1972, while the outfit was still on display at the Hall of Fame, plaintiff‘s husband passed away, and plaintiff inherited
In April 2000, defendant, who is an heir of Lieuallen, went to the Hall of Fame and demanded return of the outfit on behalf of Lieuallen. The Hall of Fame promptly complied with defendant‘s request, and defendant gained possession of the outfit. Plaintiff, who is legally blind, was unaware that the outfit had been removed from the Hall of Fame.2 Plaintiff did not learn of the transfer until June 2007, when the Hall of Fame displays were moved to a new building. Plaintiff then demanded that defendant return the outfit, and defendant refused.3
In October 2009, plaintiff brought an action against defendant for conversion and replevin.4 Plaintiff sought return of the outfit or, in the alternative, an award of damages. Defendant responded by filing a motion to dismiss plaintiff‘s complaint pursuant to
replied that
After considering the parties’ arguments, the trial court granted defendant‘s motion to dismiss. Plaintiff appealed that ruling, and the Court of Appeals affirmed the trial court‘s judgment. It held that
The parties agree that the appropriate statute of limitations for plaintiff‘s action is
The existence of a discovery rule cannot be assumed, but rather must be embodied in the applicable statute of limitations. See Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 230, 26 P3d 817 (2001). Thus, we apply the statutory methodology established in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), to determine whether the legislature intended to incorporate a discovery rule in the pertinent statute of limitations. See Gladhart, 332 Or 226 (no discovery rule incorporated in two-year statute of limitation for products liability claims under
We first note that the text of
therein. Plaintiff argues, however, that the text of
In Berry, a medical malpractice case, a needle was left in the plaintiff‘s abdomen during a surgical procedure but was not found, and the cause of action was not brought, until after the applicable two-year statute of limitations had run. See
This court examined the text of
“The word ‘accrue’ is derived from the Latin ‘ad’ and ‘creso’ to grow to. When applied to independent or original demands it means to arise, to happen, to come into force or existence. When used with reference to a cause of action it means when an action may be maintained thereon. It accrues whenever one person may sue another. The cause
of action must necessarily accrue to some person or legal entity. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic.”
Berry, 245 Or at 311-12 (citation and emphasis omitted).
Because the plaintiff in Berry had no way of immediately ascertaining her injury, this court concluded that the limitation period applicable to “tort actions that are normally immediately ascertainable upon commission of the wrong,” should not apply. Id. at 312. We observed in Berry that the legislature “did not provide that the time of accrual was when the physician performed the negligent act. *** The legislature left the matter undetermined.” Id. at 313. Thus, we determined that the plaintiff‘s cause of action had “accrued” at the time that she obtained knowledge, or at the time that a person exercising reasonable care should have obtained knowledge, of the injury negligently caused by the defendant—viz., when the plaintiff discovered that a surgical needle was in her abdomen.
We conclude, following the reasoning of Berry, that a discovery rule applies to
Defendant nevertheless argues that, when read in context, it is apparent that the legislature did not intend
The Court of Appeals agreed with defendant and concluded that a discovery rule does not apply to a conversion or replevin action as a matter of law. The court observed
The Court of Appeals also reasoned that, although
the only generally recognized exception to that rule permits courts to toll the commencement of the action in instances when fraudulent concealment has occurred.
We disagree. First, contrary to defendant‘s assertions, this court has not limited the application of the discovery rule to statutes of limitation that have expressly contained such a rule. Rather, since deciding Berry, this court has determined that a discovery rule applied in a number of cases, many of which involved statutes of limitation that did not expressly contain a discovery rule. See T. R. v. Boy Scouts of America, 344 Or 282, 291, 181 P3d 758, cert den, 555 US 825 (2008) (sexual abuse claim brought under section 1983); Doe v. American Red Cross, 322 Or 502, 510-12, 910 P2d 364 (1996) (personal injury action); Gaston v. Parsons, 318 Or 247, 254, 864 P2d 1319 (1994) (medical malpractice case involving
Moreover, in the cases since Berry in which this court has found a discovery rule to apply, we have generally been persuaded by the fact that the applicable statute of limitations fell under the purview of
In Moore v. Mutual Enumclaw Ins. Co., 317 Or 235, 855 P2d 626 (1993), for example, this court reasoned that a discovery rule did not apply to a claim for breach of an insurance contract that, by law, incorporated the statute of limitations provision contained in
Here, by contrast, the limitation clause at issue does fall under the purview of
In Vaughn, this court noted that the original version of
in 1919, the legislature amended the statute to add a discovery rule for cases of fraud and deceit. The court reasoned that the subsequent amendment demonstrated that the legislature “intended that, as to all other actions, the provision that the time commences to run from the accrual of the cause of action should remain unchanged.” Vaughn, 236 Or at 547-48. In rejecting that reasoning in Berry, we explained that “[t]he fact that the legislature saw fit to clarify the time of accrual with regard to undiscovered fraud does not necessarily mean that it was the original legislative intent that the discovery principle not apply in fraud cases.” Berry, 245 Or at 310-11. We went on to explain that such legislative inaction “is not necessarily determinative in the face of the ordinary meaning of ‘accrued’ as it is used in relation to a cause of action.” Id. at 311. We find that reasoning equally persuasive in this case.
Defendant also argues that the following language limits Berry to malpractice claims only:
“We do not believe the legislature intended to limit patients asserting malpractice claims, who by the very nature of the treatment had no way of immediately ascertaining their injury, to the same overall period of time that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong.”
Id. at 312. In defendant‘s view, an action for conversion and replevin is the type of intentional tort that is immediately ascertainable on the commission of the wrong and, accordingly, the legislature would have intended the statute of limitations to begin to run at the time of the tortious act. See also Davies, 274 Or at 667 (“‘If the defendant‘s conduct in itself invades the plaintiff‘s rights, so that suit could be maintained regardless of damages—as with a breach of contract and most intentional torts—the statute commences upon completion of the conduct.‘” (Quoting Developments—Statutes of Limitations, 63 Harv L Rev 1177, 1200-201 (1950).)).
The Court of Appeals agreed with defendant‘s argument on that point, reasoning that conversion is not “the type of wrong that is so inherently difficult to detect that we might infer that the legislature intended it to
be subject to a discovery rule. See Berry, 245 Or at 312 (unlike malpractice claims, ‘other tort actions *** are normally immediately ascertainable upon commission of the wrong.‘).”
Rice, 251 Or App at 609 (omission in original).
We disagree with the notion that this court limited the rule articulated in Berry by reasoning that medical malpractice cases should be subject to a discovery rule because they
“Even though the facts that give rise to a claim have occurred, the applicable limitations period does not begin to run until the plaintiff discovers or should have discovered those facts. And the facts that a plaintiff must have discovered or be deemed to have discovered include not only the conduct of the defendant, but also, under Gaston, the tortious nature of that conduct.”
Id. at 331; see also Gaston, 318 Or at 257 (a plaintiff‘s failure to ascertain the nature of the injury suffered is a question of fact). Thus, this court rejected the defendant‘s position that a battery claim necessarily accrues at the time of the offensive contact itself.
In summary, we conclude that claims for conversion and replevin accrue when the plaintiff knows or reasonably
should know of the elements of such claims. We express no opinion on whether plaintiff‘s allegations are sufficient to allege that she did not have actual or constructive knowledge of the elements of those claims until 2007. That is not an issue on review in this court.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.