BOARDMASTER CORPORATION, an Oregon corporation, Plaintiff-Appellant,
Foster A. GLASS, Defendant-Respondent and Garry G. OLSON and Larry L. Olson, Plaintiffs,
Argued and Submitted March 13, 2014
095639L3. Jackson County Circuit Court. Thomas M. Hull, Judge.
James E. Leuenberger argued the cause for appellant. With him on the briefs was James E. Leuenberger PC.
Nathan G. Steele argued the cause and filed the briefs for respondent.
Before Duncan, Presiding Judge, and Ortega, Judge, and Lagesen, Judge.[*]
[272 Or.App. 343] ORTEGA, J.
In this attorney malpractice action, plaintiff challenges the trial court's grant of defendant's motion for summary judgment. The underlying dispute concerns a tort claim that arose when Jackson County, asserting authority under ORS 479.820, ordered Pacific Power to disconnect electrical power to plaintiff's lumber mill. After plaintiff's electrical service was disconnected, plaintiff consulted an attorney, defendant, who advised that, for statute of limitations purposes, the disconnection order constituted a tort that continued for as long as that order remained in effect. Plaintiff, represented by another attorney, later sued Jackson County, among other defendants. Jackson County successfully moved to dismiss the case on the basis that the suit was untimely. Plaintiff appealed, and we affirmed, concluding that Jackson County's order to Pacific Power constituted a " discrete, harm-producing act," not a continuing tort, and that, because plaintiff's suit was filed two years after that act, it was time-barred under ORS 30.275(9). BoardMaster Corp. v. Jackson County,
224 Or.App. 533, 552, 198 P.3d 454 (2008).
In this case, plaintiff sued defendant, alleging that, had defendant not erroneously advised plaintiff that the tort was continuing, plaintiff would have filed its action sooner and would have prevailed in its suit against Jackson County and that, accordingly, defendant's advice constituted legal malpractice. Defendant moved for summary judgment, arguing that plaintiff could not prove that it actually sustained damages as a result of defendant's alleged negligence because Jackson County had the legal right to disconnect defendant's electrical service. Plaintiff contends that Jackson County's order to disconnect electrical service was not authorized by ORS 479.820, which, according to plaintiff, only authorized Jackson County to order electrical disconnection if it determined, after an inspection (which did not occur here) that an electrical installation or product was unsafe. The trial court sided with defendant, granting the summary judgment motion on the basis that plaintiff's reading of ORS 479.820(2) was incorrect and that plaintiff would not have prevailed in its [272 Or.App. 344] action, and plaintiff appeals. Defendant cross-assigns error to the trial court's denial of a separate motion for summary judgment, which contended that plaintiff's legal malpractice action was untimely. We reject that cross-assignment without further written discussion. For the following reasons, we conclude that the trial court's interpretation of ORS 479.820(2)--that the statute allows electrical disconnection because of a failure to obtain a permit--was incorrect and, thus, its determination that plaintiff could not prevail on its " case within a case" as a matter of law was in error. Accordingly, we reverse the court's grant of summary judgment.
We review a trial court's grant of summary judgment under ORCP 47 C to determine whether the trial court correctly concluded that there is " no genuine issue of material fact and the moving party is entitled to prevail as a matter of law." Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001). We view the evidence in the light most favorable to the nonmoving party--here, plaintiff--and draw all reasonable inferences in that party's favor. Id. (citing Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997)).
We begin with the facts of plaintiff's underlying case. Plaintiff purchased 44 acres and a lumber mill from Casey Investments, Inc. (" Casey" ), a corporation wholly owned by Jones. Casey retained five acres of property, on which Jones had put a mobile home. Jones had connected power to the mobile home from the lumber mill without obtaining a permit. Jackson County discovered the electrical installation and cited Jones in 2000 for failure to obtain a permit in violation of the Jackson County Code (JCC), for which Jones was later convicted and ordered to pay a $600 fine and obtain a permit within 60 days. Jones did not then obtain the necessary electrical installation permit or pay the fine. Jackson County did not consider the property partitioned and regarded Jones as the owner of the lumber mill. So, in 2003, when Jackson County ordered Pacific Power, [272 Or.App. 345] plaintiff's electrical power service provider, to disconnect electrical service to Jones via the following letter, the disconnection order affected plaintiff's lumber mill:
" 'With regard to [747 West Fork Trail Cr. Rd], * * * Jones has been issued a direction to obtain the required building and electrical permits for an addition to the house at this address. * * * Jones has, evidently, chosen not to adhere to the requirements of the Oregon Revised Statutes.'
" 'With reference to ORS 479.550, 479.820, and 479.830, Jackson County has no alternative but to order Pacific Corp. to disconnect the Electrical Service to 747 West Fork Trail Cr. Rd. * * * Jones has not obtained the proper permits in order to have this property inspected for Fire and Life Safety minimum standards,
therefore, it must be considered to have failed those standards at this time (ORS 479.820(2)).'
" 'This is, by definition, a 'flagrant' violation of law, and is subject to further action by ...