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Cannon v. Oregon Department of Justice

Court of Appeals of Oregon

November 15, 2017

Philip Scott CANNON, Plaintiff-Appellant,
v.
OREGON DEPARTMENT OF JUSTICE, Oregon State Police, Oregon State University, Oregon Public Defense Services Commission, and Ruth Ann Johns, as the Personal Representative for the Estate of Robin A. Jones, Defendants-Respondents.

          Argued and submitted June 6, 2016

         Marion County Circuit Court 10C12260; Dennis J. Graves, Judge.

          Kevin T. Lafky argued the cause for appellant. With him on the briefs were Leslie D. Howell and Lafky & Lafky.

          Michael S. Shin, Assistant Attorney General, argued the cause for respondents Oregon Department of Justice, Oregon State Police, Oregon Public Defense Services Commission, and Ruth Ann Johns. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Bruce L. Campbell argued the cause for respondent Oregon State University. With him on the brief was Miller Nash Graham & Dunn LLP.

          Before Ortega, Presiding Judge, and Armstrong, Judge, and Garrett, Judge. [*]

         [288 Or.App. 794] Case Summary: Plaintiff, who obtained post-conviction relief on three counts of aggravated murder, brought this action against defendants Oregon Department of Justice (DOJ), Oregon State Police (OSP), Oregon Public Defense Services Commission (OPDSC), his court appointed appellate counsel, and Oregon State University (OSU), alleging claims arising from the circumstances of his conviction and incarceration. The trial court granted summary judgment for defendants on all claims, and plaintiff appeals, raising six assignments of error. Held: The Court of Appeals wrote to address two of plaintiff's assignments. The trial court did not err in dismissing the claims against DOJ, OSP, and OSU based on the statute of ultimate repose, ORS 12.115(1), because the acts complained of all occurred more than 10 years before plaintiff fled his complaint, and no exceptions to the statute of ultimate repose applied. However, the trial court did err in dismissing plaintiff's professional negligence claim against appellate defense counsel and OPDSC based on the statute of limitations, ORS 30.275(9), because that claim did not accrue until plaintiff had been exonerated from his crimes through post-conviction relief, and the claim was brought within two years of the date of exoneration.

         Reversed and remanded as to claim against OPDSC and appellate defense counsel; otherwise affirmed.

         [288 Or.App. 795]

          GARRETT, J.

         Plaintiff, who obtained post-conviction relief on three counts of aggravated murder, brought this action against the Oregon Department of Justice (DOJ), the Oregon State Police (OSP), the Oregon Public Defense Services Commission (OPDSC), and his court-appointed appellate attorney in her capacity as an employee with the Office of Public Defense Services (together, the state defendants), and against Oregon State University (OSU), alleging claims arising from the circumstances of his conviction and incarceration.[1]

         Plaintiff's first amended complaint alleged claims against DOJ, OSP, and OSU for negligence and abuse of process, a claim against appellate defense counsel and OPDSC for professional negligence, and a claim against DOJ for false imprisonment. The trial court granted summary judgment for defendants on all claims, and plaintiff appeals, raising six assignments of error. We reject most of the assignments without discussion. We write to address the first assignment of error, in which plaintiff contends that the trial court erred in dismissing his negligence and abuse of process claims against DOJ, OSP, and OSU based on the statute of ultimate repose, ORS 12.115(1), and the fifth assignment of error, in which he contends that the trial court erred in dismissing his professional negligence claim against OPDSC and his appellate counsel based on the statute of limitations, ORS 30.275(9).[2] For the reasons explained [288 Or.App. 796] below, we conclude that the trial court did not err in dismissing the claims against DOJ, OSP, and OSU based on the statute of ultimate repose, but that the court did err in granting summary judgment on the claim against OPDSC and appellate counsel based on the statute of limitations. Accordingly, we reverse the court's ruling on that claim.

         On review of the trial court's summary judgment rulings, we view the evidence in the record, together with reasonable inferences to be drawn from it, in the light most favorable to plaintiff to determine whether there was a genuine issue of material fact and whether defendants were entitled to judgment as a matter of law. ORCP 47 C; Bagley v. Mt. Bachelor. Inc.. 356 Or. 543, 340 P.3d 27 (2014).

         We begin with plaintiff's first assignment of error, regarding the statute of ultimate repose, ORS 12.115(1), and start with the relevant procedural context. Plaintiff was charged with three counts of aggravated murder. Plaintiff's trial concluded on February 25, 2000, and the jury found plaintiff guilty on all counts on February 28, 2000.

         Plaintiff filed a petition for post-conviction relief on January 12, 2004. On September 2, 2009, his convictions were set aside by stipulated agreement and judgment, without prejudice. The state did not retry plaintiff, because the prosecution trial exhibit files could not be located. Plaintiff was released from prison in December 2009, and he filed this action on February 26, 2010, alleging torts in connection with the investigation of the murders, the analysis of the evidence, and the conduct of prosecution and defense counsel.[3]

         [288 Or.App. 797] Defendants filed a motion for summary judgment, contending, among other arguments, that plaintiff's claims against DOJ, OSP, and OSU are barred by the statute of ultimate repose, ORS 12.115(1), which provides:

"In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act ...

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