Allan F. KNAPPENBERGER, an individual, Plaintiff-Appellant,
Adelbert John DAVIS-STANTON, an individual, aka John Stanton, aka John Davis-Stanton, Defendant-Respondent
Argued and Submitted June 6, 2013.
091216881. Multnomah County Circuit Court. Stephen K. Bushong, Judge.
Jonathan Henderson argued the cause for appellant. With him on the briefs was Davis Rothwell Earle & Xochihua, P. C.
Robert M. Snee argued the cause and filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Armstrong, Judge.
[271 Or.App. 16] ARMSTRONG, P. J.
This appeal presents the interesting question whether ORS 12.150--a statute that, among other things, tolls statutes of limitation that apply to claims against a defendant when the defendant moves out of the state after the claims have accrued--is unconstitutional as applied in the circumstances of this case. The trial court concluded that it was and, accordingly, granted defendant's motion for judgment notwithstanding the verdict (JNOV) in favor of plaintiff because, in the absence of the tolling provision, plaintiff's claims were barred by the applicable statute of limitation. Plaintiff appeals the resulting judgment for defendant, assigning error to the trial court's JNOV ruling. Defendant cross-assigns error to the trial court's denial of his motion for leave to file an amended answer. As explained below, we agree with plaintiff that the trial court erred in entering judgment for defendant. We reject defendant's cross-assignment of error without discussion. Accordingly, we reverse and remand with instructions to reinstate the jury verdict in favor of plaintiff.
On appeal after a JNOV, we view the evidence in the light most favorable to the party who prevailed before the jury, here, plaintiff. Bennett v. Farmers Ins. Co., 332 Or. 138, 142, 26 P.3d 785 (2001). In this case, however, the facts relevant to the issues presented on appeal are essentially undisputed. In December 2009, plaintiff filed an action against defendant seeking to recover unpaid legal fees that defendant, a former client, allegedly owed him. Plaintiff asserted claims for " account stated" and quantum meruit. In his answer, defendant raised several affirmative defenses, including that plaintiff's claims were barred because they had not been commenced within the six-year limitation period provided in ORS 12.080 and ORS 12.090.
[271 Or.App. 17] The case was tried to a jury. At the close of evidence, both parties moved for a directed verdict on the statute-of-limitation defense. They agreed to stipulate to the following facts: that plaintiff's action was filed in December 2009; that plaintiff's claims had accrued, at the latest, on July 25, 2002; that a six-year limitation period applied; and that defendant had moved out of the State of Oregon in November 2003 and has lived in the Vancouver-Battleground area of Washington since that time. Given those facts, plaintiff contended that defendant's statute-of-limitation defense failed because, under ORS 12.150, the limitation period was tolled
when defendant moved out of state in November 2003, and, consequently, plaintiff's action had been commenced well within the six-year limitation period. Defendant, for his part, argued that ORS 12.150 does not apply to toll the statute of limitation because he was subject to service and personal jurisdiction under ORCP 4 E notwithstanding his move to Washington and, even if the statute were otherwise applicable, applying it in this case would be unconstitutional under the Commerce Clause of the United States Constitution, citing Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988) ( Bendix ). Consequently, according to defendant, plaintiff's claims were time barred under ORS 12.080(1) because they had not been commenced within six years of their accrual, and he was entitled to a directed verdict in his favor on the claims.
The trial court summarized the competing motions:
" And so it's the plaintiff's position that under the statute cited in the written material--I think it's [ORS] 12.150, that the Statute of Limitations is tolled and that as a matter of law the case--the claims are not time-barred.
[271 Or.App. 18] " And it's the defense position that the statute as applied in this case would be unconstitutional and therefore the claims are timebarred."
With the parties' agreement, the trial court reserved ruling on the directed-verdict motions pursuant to ORCP 63 B.
The jury returned a verdict in favor of plaintiff on each of his claims in the amount of $58,722.97. The parties then agreed to have the trial court treat defendant's motion for a directed verdict as a JNOV motion, without further briefing. The court subsequently issued an opinion concluding, first, that ORS 12.150 " unambiguously applies" to plaintiff's claims and, second, that it " cannot be applied to toll the statute of limitations in this case because doing so violates the Commerce Clause." On the constitutional question, the court ultimately agreed with the reasoning of courts from other jurisdictions, especially Heritage Marketing and Ins. Services, Inc. v. Chrustawka, 160 Cal.App.4th 754, 73 Cal.Rptr.3d 126 (2008) ( Heritage Marketing ), and State ex rel Bloomquist v. Schneider, 244 S.W.3d 139 (Mo 2008), that " denying a defendant the benefit of the statute of limitations due to this type of tolling statute burdens the defendant's ability to move from state to state, and that alone is a sufficient effect on interstate commerce to implicate the Commerce Clause." (Footnote omitted.) Accordingly, the court granted defendant's JNOV motion and entered a general judgment for defendant, awarding him costs and disbursements. Plaintiff appeals.
II. PARTIES' ARGUMENTS
Plaintiff assigns error to the trial court's grant of defendant's JNOV motion. He contends that the court erred " because there was no evidence in the trial court record regarding any interference with, let alone burden on [i]nterstate [c]ommerce." And, plaintiff contends, any inferences [271 Or.App. 19] that can be drawn from the record must be resolved in his favor. According to plaintiff, defendant therefore did not satisfy his burden of proving that the statute discriminates against or unduly burdens interstate commerce, and the cases relied on by the trial court to conclude otherwise are inapposite.
Defendant responds, first, that plaintiff's argument on appeal is unpreserved, " as [plaintiff's] argument relates not only to the scope and meaning of the statutory language of ORS 12.150 and the U.S. Constitution, but, even more so, it relies upon the premise that particular proof was deficient, and such reasons
and arguments were never timely or properly urged to the trial court" (emphasis added), nor are they reviewable as plain error. He also contends that, because plaintiff did not provide a complete transcript of the evidence presented at trial, his arguments regarding the adequacy of the evidence are not reviewable. As to the merits, defendant contends that the trial court correctly ruled that ORS 12.150--like the tolling statutes at issue in cases from other jurisdictions, which toll the limitation period based solely on a defendant's out-of-state residence--" burdens [defendant's] ability to move from state to state, which is an impermissible burden on interstate commerce, particularly when balanced against the ability to obtain jurisdiction over [defendant] under the Oregon long[-]arm statute."
A. Applicability of ORS 12.150
Although, as noted, plaintiff's assignment of error focuses on the trial court's ruling that ORS 12.150 is unconstitutional as applied, we turn first to the predicate ruling of the court that ORS 12.150 would otherwise apply in this case. See Leo v. Keisling, 327 Or. 556, 562, 964 P.2d 1023 (1998) (" [I]t is well established that this court ordinarily does not decide constitutional issues if there is an adequate subconstitutional basis for decision." ); State v. Nelson, 267 Or.App. 621, 624, 341 P.3d 787 (2014) (explaining that when we might resolve a case on either constitutional or subconstitutional gounds, " we will not review the constitutional question unless we have resolved the subconstitutional question [271 Or.App. 20] and that resolution does not end the inquiry" ). We agree with the trial court that the statute is applicable.
Again, ORS 12.150 provides:
" If, when a cause of action accrues against any person, the person is out of the state and service cannot be made within the state or the person is concealed therein, such action may be commenced within the applicable period of limitation in this chapter after the return of the person into the state, or after the termination of the concealment of the person; and if, after a cause of action has accrued against a person, the person shall depart from and reside out of this state, or if the person is concealed therein, the time of the absence or concealment of the person shall not be deemed or taken as any part of the time limited for the commencement of such action." 
Thus, the tolling statute addresses both the circumstance where a person is out of the state (or concealed within the state) when the cause of action accrues against the person, and where the person departs from and resides out of the state (or is concealed within the state) after the cause of action accrues. Here, it is undisputed that defendant left the state after plaintiff's claims had accrued.
In Whittington v. Davis, 221 Or. 209, 350 P.2d 913 (1960), the Supreme Court considered the effect of the 1959 version of ORS 12.150 in the context of an action for personal injuries sustained in a car accident. The plaintiff contended that, because the defendant had " either secreted herself within this state or had absented herself therefrom," ORS 12.150 (1959) applied to toll the running of the statute of limitation during the period of the defendant's absence or [271 Or.App. 21] concealment. Whittington, 221 Or. at 210. The Supreme Court disagreed, holding that the tolling statute was inapplicable because former ORS 15.190 (1959), rep ...