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Tavtigian-Coburn v. All Star Custom Homes, LLC

Court of Appeals of Oregon

October 8, 2014

KATHERINE L. TAVTIGIAN-COBURN, Trustee of the Katherine L. Tavtigian Revocable Living Trust; DAVID COBURN and LAURA COBURN, husband and wife, Plaintiffs-Appellants,
ALL STAR CUSTOM HOMES, LLC, an Oregon limited liability company; Defendant-Respondent, and ALL STAR CUSTOM HOMES & DEVELOPMENT, INC., an Oregon corporation, Defendant

Argued and Submitted July 21, 2014

Clackamas County Circuit Court. CV12070128. Henry C. Breithaupt, Judge pro tempore.

Daniel T. Goldstein argued the cause for appellants. With him on the briefs were Phillip E. Joseph, James C. Prichard, Adele J. Ridenour, and Ball Janik LLP.

Jack Levy, Chin See Ming, and Smith Freed & Eberhard P. C. filed the brief for respondent.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


[266 Or.App. 221] PER CURIAM

Plaintiffs brought this action against defendants for damages arising out of alleged defects in the construction of their home, asserting claims for negligence and nuisance. The trial court granted defendant All Star Custom Homes, LLC's (All Star's) motion for summary judgment on the ground that the claims were untimely under ORS 12.080(3)[1] and entered a general judgment of dismissal.[2] Plaintiffs appeal that judgment, arguing that the trial court erred in concluding that

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ORS 12.080(3) does not embody a discovery rule and, accordingly, in dismissing their claims as time barred.

After the appellate briefing in this case was complete, the Supreme Court decided Rice v. Rabb, 354 Or. 721, 320 P.3d 554 (2014), in which it held that the six-year statute of limitation in ORS 12.080(4) for conversion and replevin claims[3] incorporates a discovery rule. Plaintiffs contend in a memorandum of additional authorities that the Supreme Court's reasoning in Rice compels the conclusion that ORS 12.080(3) also incorporates a discovery rule and, therefore, that plaintiffs' claims did not accrue until they knew or should have known of each of the elements of their negligence and nuisance claims. We agree.

In Rice, following the reasoning of Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), the court concluded that a discovery rule applies to ORS 12.080(4) because, like the statute of limitation at issue in Berry, it " falls under the purview of ORS 12.010," which provides that the limitation periods prescribed for a claim in ORS chapter 12 begins to run upon the accrual of the claim, unless a different limitation [266 Or.App. 222] is prescribed.[4] Rice, 354 Or. at 728. And, the court explained, a claim accrues for purposes of ORS 12.010 " 'at the time [a] plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by [a] defendant.'" Id. (quoting Berry, 245 Or. at 316; brackets in Rice ). That reasoning applies equally to the statute of limitation in ORS 12.080(3). Like ORS 12.080(4), ORS 12.080(3) does not prescribe a different limitation on commencement of claims; thus, under ORS 12.010, plaintiffs' negligence and nuisance claims accrued when they knew or reasonably should have known of the elements of those claims. Rice, 354 Or. at 733-34. Because All Star presented no evidence that plaintiffs discovered or reasonably should have discovered their claims more than six years before they filed them, the trial court erred in granting summary judgment to All Star.

Reversed and remanded.

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