Cannon v. Or. Dep't of Justice

• Decision Date: 15 November 2017
• Docket Number: A158676
• Citation: 288 Or.App. 793,407 P.3d 883
• Parties: 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.
• Court: Oregon Court of Appeals

288 Or.App. 793

407 P.3d 883

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.

A158676

Court of Appeals of Oregon.

Argued and submitted June 6, 2016.

November 15, 2017

Kevin T. Lafky, Salem, 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, Portland, 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.^*

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 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

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 or omission complained of."

Defendants argued that all of the alleged misconduct occurred during the investigation, prosecution, and defense of plaintiff in connection with the three murders, and that those acts were complete, at the latest, when plaintiff's trial ended and the case was submitted to the jury on February 25, 2000. Plaintiff's action was commenced more than 10 years later, on February 26, 2010.

Plaintiff responded that the period of ultimate repose did not begin to run until the date plaintiff obtained post-conviction relief, September 2, 2009, or, at the earliest, the date the jury reached its guilty verdict, February 28, 2000. He further argued that the period of ultimate repose was tolled because, until his release from prison, he had an active and continuous relationship of trust with defendants. In the alternative, plaintiff contended that application of the statute of ultimate repose would violate his right to a remedy under Article I, section 10, of the Oregon Constitution. The trial court granted defendants' motion and this appeal followed.⁴

On appeal, plaintiff reprises the arguments he made in the trial court. Plaintiff acknowledges that under Oregon case law, the period of ultimate repose in ORS 12.115(1) runs from the date of the act or omission complained of, regardless of when the damage resulted or when the act or omission was discovered. See Josephs v. Burns & Bear, 260 Or. 493, 501-02, 491 P.2d 203 (1971), overruled on other grounds by Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001) ; Catt v. Dept. of Human Services, 251 Or. App. 488, 508, 284 P.3d 532 (2012) ("Unlike the statute of limitations, the discovery rule does not toll the statute of ultimate repose, because it was intended ‘to provide an overall maximum upper limit on the time within which a tort action could be brought, regardless of the date of discovery or of any other circumstances.’ " (Quoting Josephs, 260 Or. at 498, 491 P.2d 203.)).

However, plaintiff argues that his case falls within the rule of Stevens v. Bispham, 316 Or. 221, 230-31, 851 P.2d 556 (1993), meaning that, in plaintiff's view, the statute of ultimate repose was tolled until his convictions were set aside on September 2, 2009, or, at the earliest, when the jury rendered its guilty verdicts on February 28, 2000. Until those dates, plaintiff contends, he could not have brought his claims.

In Stevens, the Supreme Court held that an incarcerated person's claim for legal malpractice against criminal defense trial counsel does not accrue until the person has been exonerated of the criminal offense. We discuss Stevens at length below in addressing plaintiff's fifth assignment of error, which concerns the trial court's application of the statute of limitations to dismiss the claim against plaintiff's appellate attorney. But Stevens does not assist plaintiff with respect to the statute of ultimate repose, because that case solely concerns when a claim for malpractice accrues for purposes of the statute of limitations. As the Supreme Court explained in Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or. 151, 162, 986 P.2d 536 (1999), a statute of limitations may be tolled in certain circumstances but, with few exceptions, a statute of ultimate repose may not be tolled. The statute of ultimate repose establishes a maximum time to file a claim, regardless of the date of discovery of an injury or other circumstances that may affect the expiration of the statute of limitations. It "provides a deadline for the initiation of an action whether or not the injury has been discovered or has even occurred." Sealey v. Hicks, 309 Or. 387, 394 n. 7, 788 P.2d 435 (1990) ; Urbick v. Suburban Medical Clinic, Inc., 141 Or. App. 452, 457, 918 P.2d 453 (1996) (" ‘It matters not when the claim has accrued, or even if it has accrued.’ " (Quoting Lesch v. DeWitt, 118 Or. App. 397, 399-400, 847 P.2d 888, vac'd on other grounds, 317 Or. 585, 858 P.2d 872 (1993) (Emphasis in original.))). Unless otherwise provided by statute, an ultimate repose period " ‘cannot be extended regardless of unfairness to the plaintiff.’ " Shasta View Irrigation Dist., 329 Or. at 162, 986 P.2d 536 (quoting DeLay v. Marathon LeTourneau Sales, 291 Or. 310, 315, 630 P.2d 836 (1981) ). When the ultimate repose period has expired, the claim is extinguished and no legally cognizable injury exists. Sealey, 309 Or. at 392, 788 P.2d 435.

Here, the statute of ultimate repose required plaintiff to bring an action within "10 years from the date of the act or omission complained of." ORS 12.115(1). Thus, in considering whether plaintiff's claims against DOJ, OSP, and OSU are barred, the question is when the acts or omissions complained of in those claims occurred. The question of when plaintiff's claims "accrued" is a statute-of-limitations question that is irrelevant to the statute-of-repose inquiry; therefore, Stevens and other cases pertinent to the tolling of a statute of limitations do not bear on the analysis.

The record on summary judgment requires the conclusion that the acts or omissions complained of by DOJ, OSP, and OSU all occurred before and during plaintiff's trial, which concluded on February 25, 2000, more than 10 years before plaintiff filed his complaint. Indeed, plaintiff makes no argument to the contrary.⁵ We therefore reject plaintiff's contention that the period of ultimate repose had not expired.

We further reject plaintiff's contention that the period of ultimate repose was tolled until his release from prison...