In the Matter of the Marriage of Arlene J. HURTLEY, nka Arlene Haugen, Petitioner-Appellant, and Chad J. HURTLEY, Respondent-Respondent.
and submitted November 7, 2017.
Deschutes County Circuit Court 08DS0742MA. Beth M. Bagley,
Anthony V. Albertazzi argued the cause and filed the brief
appearance for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Plaintiff filed suit against its former attorney for
professional negligence in advising plaintiff concerning a
contract. The trial court found for defendant on summary
judgment, concluding that plaintiff's claim was barred by
the statute of limitations, because plaintiff knew of the
existence of all elements of the claim-including the
existence of harm measurable in damages-more than two years
prior to the fling of the malpractice suit. On appeal,
plaintiff assigns error to the trial court's grant of
summary judgment, arguing that, because it incurred damages
only as a result of terminating the contract, the operative
time when it knew, or should have known, that defendant's
conduct harmed it in a measurable way was when plaintiff was
sued for breach of contract and retained new counsel.
Held: The trial court erred in granting summary
judgment. On this record, in the light most favorable to
plaintiff, the termination of the contract came as a result
of defendant's advice that ending the contract would have
no negative consequences for plaintiff. A reasonable trier of
fact could determine that the operative time for assessing
harm was when plaintiff learned from new counsel that
defendant's assurances of escaping the contract unscathed
were incorrect, which occurred within the statute of
Or.App. 511] AOYAGI, J.
obtained a dissolution judgment against husband by default in
2009. The dissolution judgment includes a provision that,
according to wife, required husband to pay her $200, 000 upon
his taking title to certain real property In 2015, after
husband had taken title to the property, wife filed a motion
requesting entry of a supplemental judgment with a $200, 000
money award. Husband opposed the motion. Following a hearing,
the trial court entered a supplemental judgment in which it
ruled, as a matter of law, that wife was not entitled to a
money award under the dissolution judgment. The supplemental
judgment also provided that wife was "precluded from
pursuing further relief to modify or clarify the Dissolution
Judgment." On wife's appeal from the supplemental
judgment, we reverse and remand.
relevant facts are minimal and undisputed.Husband and wife
were married for almost twenty years and have two children.
For the latter part of their marriage, they lived in Sisters
on property owned by husband's father, identified as the
"ranch property." In 2009, wife filed for divorce
and ultimately obtained a judgment by default. Wife filed the
proposed form of judgment, using a preprinted form. The trial
court entered the judgment on February 9, 2009.
10 of the dissolution judgment, "Real Property
Distribution, " states that wife has "an interest
in real property located at" the address of the ranch
property and that said property "shall be
distributed" as provided in Exhibit 2, a typewritten
attachment signed by wife. Exhibit 2 provides:
"[Wife] and [husband] were married July 27, 1991. We
were buying a house and property. We sold the property to
move to the family ranch. This is to be inherited by
[husband] and his brother Shawn Hurtley. [Husband's]
parents Dave and Judy Hurtley got a divorce in April of 1997.
Stated in their divorce decree [husband] and Shawn would
inherit the home place located * * * in Sisters Or. Dave
Hurtley has possession of the property until he dies or he
can sell the [292 Or.App. 512] property for fair market value
and split the money between the 2 boys after [debts] are
paid. Dave Hurtley has filed a Measure 37 claim on the 30
acre property. If the claim passes [husband] will receive a 5
acre piece with a home and barns etc. I am asking for the
sum of $200, 000.00. I gave up our home to move to the
family ranch. Now we are not going to be married anymore I
would still like the chance to maintain the kind of life
style that I and our children have known."
(Emphasis added.) Section 18 of the dissolution judgment
included a place for a money award related to property
division, which was left blank. According to wife, it was
left blank because she was not entitled to any money at that
time, but rather would only be entitled to money when the
contingency was met.
August 2015, wife filed a motion to show cause, seeking entry
of a money award based on the satisfaction of the contingency
in the dissolution judgment. She filed an affidavit in support
of her motion with an attached copy of a recorded 2012 deed
by which husband's father had transferred title to the
ranch property to husband. Wife requested that the court
enter a money award in her favor in the amount of $200, 000.
Husband opposed wife's motion.Husband argued that the
dissolution judgment did not contain a contingent money award
to wife or, alternatively, that such an award would have been
improper because the court "lacked subject matter
jurisdiction" over the ranch property. [292 Or.App. 513]
Husband did not offer any evidence ...