Argued and Submitted: September 16, 2013.
CC CV091445. CA A145606. On review from the Court of Appeals.[*]
Rice v. Rabb, 251 Or.App. 603, 284 P.3d 1178, (2012)
Cody Hoesly, Larkins Vacura LLP, Portland, filed the brief and argued the cause for petitioner on review.
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.[**]
[354 Or. 723] BALDWIN, J.
This case requires us to decide whether the six-year statute of limitations applicable to conversion and replevin claims under ORS 12.080(4) incorporates a discovery rule to determine when such claims " accrue" pursuant to ORS 12.010. The Court of Appeals concluded that the limitation prescribed by ORS 12.080(4) begins to run at the time of the wrongful taking of personal property and that the provision does not incorporate a discovery rule. Rice v. Rabb, 251 Or.App. 603, 284 P.3d 1178 (2012). Thus, it affirmed the trial court's judgment dismissing plaintiff's complaint as time-barred because plaintiff's complaint was filed more than six years from the time of the alleged taking of plaintiff's personal property. On review, we hold that plaintiff's allegations adequately invoke a discovery rule as recognized in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), and we reverse.
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 P.2d 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 [354 Or. 724] 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. 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.
In October 2009, plaintiff brought an action against defendant for conversion and replevin. 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 ORCP 21 A(9), which permits a trial court to dismiss an action that " has not been commenced within the time limited by statute." Defendant argued that the six-year limitation period prescribed under the applicable statute, ORS 12.080(4), began to run when defendant removed the outfit from the Hall of Fame in April 2000 and that plaintiff's action was time-barred because she filed her complaint more than six years thereafter. Plaintiff [354 Or. 725] replied that ORS 12.080(4) incorporates a discovery rule by application of ORS 12.010, which provides that, for purposes of calculating the period of limitation, causes of actions shall be deemed commenced " after the cause of action shall have accrued."  Plaintiff contended that her cause of action did not " accrue" until she had actual or ...