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In re Marriage of Hurtley

Court of Appeals of Oregon

June 20, 2018

In the Matter of the Marriage of Arlene J. HURTLEY, nka Arlene Haugen, Petitioner-Appellant, and Chad J. HURTLEY, Respondent-Respondent.

          Argued and submitted November 7, 2017.

          Deschutes County Circuit Court 08DS0742MA. Beth M. Bagley, Judge.

          Anthony V. Albertazzi argued the cause and filed the brief for appellant.

          No appearance for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case 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 limitations.

         Reversed and remanded.

         [292 Or.App. 511] AOYAGI, J.

         Wife 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.

         The relevant facts are minimal and undisputed.[1]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.

         Section 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.

         In 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.[2] 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.[3]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.[4] [292 Or.App. 513] Husband did not offer any evidence ...


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