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Cannon v. Oregon Department of Justice

Court of Appeals of Oregon

March 26, 2014

PHILIP SCOTT CANNON, Plaintiff-Appellant,
v.
OREGON DEPARTMENT OF JUSTICE, OREGON STATE POLICE, OREGON STATE UNIVERSITY, OREGON PUBLIC DEFENSE SERVICES, and ROBIN A. JONES, Defendants-Respondents

Argued and Submitted: November 28, 2012.

Marion County Circuit Court. 10C12260. Pamela L. Abernethy, Judge.

Kevin T. Lafky argued the cause for appellant. With him on the briefs was Lafky & Lafky.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondents Oregon Department of Justice, Oregon State Police, Oregon Public Defense Services, and Robin A. Jones. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Bruce L. Campbell argued the cause for respondent Oregon State University. With him on the brief were Kathryn L. Kammer and Miller Nash LLP.

Before Wollheim, Presiding Judge, and Armstrong, Judge, and Brewer, Judge pro tempore.

OPINION

[261 Or.App. 682] WOLLHEIM, P. J.

Under the Oregon Tort Claims Act (OTCA), a plaintiff cannot maintain a tort action against a public body, its officers, its employees, or its agents unless sufficient " notice of claim" is given " within 180 days after the alleged loss or injury." ORS 30.275(2)(b). The notice requirement is satisfied by, among other things, " [c]ommencement of an action on the claim" within that 180-day period. ORS 30.275(3)(c). The question in this case is what constitutes " commencement" for notice purposes. Plaintiff, who alleges that he was wrongfully imprisoned for murder, filed his tort action against various state defendants within 180 days after obtaining a post-conviction judgment setting aside his convictions, but he did not serve the summons on those defendants until the following week--by which time,

Page 602

more than 180 days had elapsed since his convictions had been set aside. For statute-of-limitations purposes, plaintiff's action would have been " deemed commenced" as of the date the complaint was filed, because he served the summons within 60 days of filing. See ORS 12.020(2) (providing that " the action * * * shall be deemed to have been commenced upon the date on which the complaint in the action was filed" if service of the summons occurs within 60 days after the complaint is filed). However, the trial court concluded that " commencement" means something different for the notice requirement than it does for the statute of limitations, ruling that the summons itself must be served within 180 days of injury to constitute notice of a claim under the OTCA. Because plaintiff had not served the summons within 180 days after the date that he obtained post-conviction relief, which the court ruled was the date of the alleged injury, the court granted defendants' ORCP 21 motion to dismiss plaintiff's claims on the basis of untimely notice. For the reasons that follow, we conclude that the trial court erred in its construction of ORS 30.275(3)(c), and we therefore reverse and remand.

For purposes of reviewing the trial court's ruling on defendants' ORCP 21 motion to dismiss, we assume the truth of well-pleaded factual allegations in plaintiff's complaint. Doe v. Lake Oswego School District, 353 Or. 321, 323, 297 P.3d 1287 (2013). In accordance with that standard, the relevant facts, predominantly procedural, are as follows.

[261 Or.App. 683] In 2000, plaintiff was convicted of three counts of murder. The convictions were affirmed by this court and the Supreme Court, and plaintiff then filed a petition for post-conviction relief. On September 2, 2009, the state stipulated to the entry of a post-conviction judgment that set aside those convictions based on, among other things, the state's mishandling of evidence and flawed forensic analysis. On December 18, 2009, the state elected not to retry plaintiff and he was released that day from state custody.

On February 26, 2010, just shy of 180 days after his convictions were set aside on September 2, 2009, plaintiff filed his complaint in this case, which alleged tort claims against various state defendants, including the Oregon Department of Justice, the Oregon State Police, Oregon State University (which tested evidence for the prosecution), Oregon Public Defense Services, and plaintiff's appointed appellate counsel in his criminal case. However, plaintiff did not serve the summons on those defendants until the following week--on March 4 and 5, 2010--more than 180 days after his murder convictions had been set aside.

Defendants moved, under ORCP 21, to dismiss all of plaintiff's claims on the ground that plaintiff had not provided notice of those claims to defendants within 180 days of his injury, as required by the OTCA. The trial court granted that motion and issued a letter opinion ...


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