Davis v. State

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: DEVORE, J.
• Citation: Davis v. State, 267 Or.App. 264, 340 P.3d 713 (Or. App. 2014)
• Decision Date: 26 November 2014
• Docket Number: 10C22309,A150645.
• Parties: James Ray DAVIS, Plaintiff–Appellant, v. STATE of Oregon, Defendant–Respondent.

267 Or.App. 264

340 P.3d 713

James Ray DAVIS, Plaintiff–Appellant

v.STATE of Oregon, Defendant–Respondent.

10C22309

A150645.

Court of Appeals of Oregon.

Argued and Submitted Jan. 2, 2014.

Decided Nov. 26, 2014.

Kathryn Mary Pratt argued the cause for appellant. On the briefs was Steven J. Sherlag.

Karla H. Ferrall, Assistant Attorney General, argued the cause and filed the brief for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DUNCAN, Judge, and DeVORE, Judge.

Opinion

DEVORE, J.

Plaintiff sought damages first in federal court, then in state court, because the state prolonged his incarceration by improperly calculating his release date from prison.¹ The federal court dismissed claims under state law for lack of jurisdiction and denied claims under federal law on their merits. Plaintiff then filed this action in state court, renewing tort claims under state law. The state sought summary judgment premised on an application of the two-year statute of limitations in the Oregon Tort Claims Act (OTCA), ORS 30.275(9), and on a rejection of Oregon's “saving statute,” ORS 12.220. Plaintiff opposed the motion, relying on the added time that ORS 12.220 allows in which to refile a claim. The trial court granted defendant's motion and dismissed the complaint. Plaintiff appeals. “We review the grant of a motion to dismiss based on the expiration of a statute of limitations for errors of law.” Macnab v. State, 253 Or.App. 511, 514, 291 P.3d 758 (2012). Because we conclude that plaintiff's claims are not time barred, we reverse and remand.

Although not simple, this case reduces to two questions: (1) Insofar as ORS 30.275(9) renders statutes of “limitation” in ORS chapter 12 inapplicable to claims against the state, should the saving statute at ORS 12.220 be characterized as a statute of limitation, or as something else? And, (2) does the saving statute apply to this case so as to permit refiling of unresolved claims under state law, although the claims under federal law were decided on their merits?

I. BACKGROUND

The procedural history is uncontested. In November 1998, plaintiff was arrested on state and federal criminal charges. In January 2000, plaintiff pleaded guilty in state and federal courts, and each court separately sentenced him to 80 months of incarceration. The two sentences were to be served concurrently. He began serving time in state custody. Later, his federal sentence was amended to include an order to the Oregon Department of Corrections (ODOC) to release him to serve the federal sentence, with credit for time served while he was in state custody. He was transferred to federal custody. He completed serving his federal sentence on October 21, 2004, and was returned to state prison to complete the balance of his sentence.

ODOC employees initially projected plaintiff's release date as August 6, 2005, but, later, they recalculated his release date as September 4, 2006.² He protested that the prolonged date was wrong since it did not credit time served while he had awaited sentencing. Denied correction, he filed a petition for a writ of habeas corpus, and the petition was resolved in a settlement agreement. Pursuant to the agreement, plaintiff was released on May 1, 2006—268 days after his original release date and 127 days before the recalculated release date.

On April 27, 2007, plaintiff filed a civil complaint in the United States District Court of Oregon.³ He alleged that his release date had been miscalculated by denying him credit for time served prior to sentencing. He sought damages on civil rights claims under federal law and on three tort claims under Oregon law: false imprisonment, negligence, and negligent infliction of emotional distress. Plaintiff filed a motion for partial summary judgment as to the error in calculating his prison term, and defendant filed two, successive motions for summary judgment. Among other things, defendant claimed that the settlement agreement barred plaintiff's subsequent claims, while plaintiff contended that duress invalidated the settlement agreement.

In its orders, the federal court concluded that (1) ODOC improperly calculated plaintiff's release date; (2) the settlement agreement did not mean that his actual, compromised release date was proper; (3) the validity of the settlement agreement was an issue of fact for trial; (4) if the agreement is valid, then plaintiff's claims under 42 USC section 1983 would be barred; (5) plaintiff's state-law claims could not be litigated in federal court due to the Eleventh Amendment to the United States Constitution;⁴ (6) plaintiff's section 1983 claims failed on these facts as violations of the Eighth and Fourteenth Amendments; and (7) the employee-defendants were entitled to qualified immunity. On August 19, 2010, a judgment was entered dismissing plaintiff's federal case.

On October 21, 2010, plaintiff filed a case in Marion County Circuit Court, realleging his tort claims under state law.⁵ The state moved for summary judgment based on ORS 30.275(9), the two-year statute of limitations in the OTCA. With emphasis on its disputed language, the statute provides:

“[N]otwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”

ORS 30.275(9) (emphasis added). Plaintiff argued that his claims were not barred by the OTCA's two-year provision, because ORS 12.220 is not a statute of limitation, and, as a consequence, the saving statute should protect his tort claims. In relevant part, ORS 12.220 provides

“(1) * * * if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action * * * and the statute of limitations for the action expired, the plaintiff may commence a new action based on the same claim or claims against a defendant in the original action if the defendant had actual notice of the filing of the original action * * *.

“(2) If, pursuant to subsection (1) of this section, a new action is commenced * * * not later than 180 days after the judgment dismissing the original action is entered in the register of the court, the new action is not subject to dismissal by reason of not having been commenced within the time allowed by statute.”

The trial court focused on the “notwithstanding clause” of ORS 30.275(9) and viewed ORS 12.220 to be just another statute of limitations in ORS chapter 12. The court deemed the saving statute to be supplanted by the two-year limitation of the OTCA. The court concluded that, since the saving statute did not apply, plaintiff's claims were time barred. The circuit court entered a judgment dismissing plaintiff's refiled claims.

On appeal, plaintiff contends that the saving statute should not be seen as a statute of limitations but rather as a tolling statute, as a statute about commencement or relation-back, or as something other than a statute of limitation. The state asserts or reasserts two arguments. First, the state argues that, as a statute of limitation, ORS 12.220 is supplanted by ORS 30.275(9). The state sees, as indicative of a limitation, the 180–day period that ORS 12.220 requires for refiling. Second, the state argues that, even if ORS 12.220 could apply to state claims generally, the saving statute should not apply, because, in relevant part, the saving statute operates only when an “action is involuntarily dismissed without prejudice,” and, in this case, plaintiff's federal claims in the earlier “action” were adjudicated “on the merits.” (Emphasis added).

II. SAVING STATUTE

The first question is of broad import when asking whether the OTCA makes the saving statute inapplicable to all claims against government entities. The answer requires an interpretation of the term, statute of “limitation,” as used in the “notwithstanding clause” of ORS 30.275(9) and, in light of that interpretation, a characterization of ORS 12.220 as either a statute of limitation or as something else. The interpretative task has already been done. The task of characterization remains for our decision here.

In Baker v. City of Lakeside, 343 Or. 70, 83, 164 P.3d 259 (2007), the Supreme Court construed the “notwithstanding clause” of ORS 30.275(9) in order to determine whether a plaintiff may employ ORS 12.020(2) when commencing a claim against a city. The plaintiff's complaint had been timely filed, and the summons and complaint were served within 60 days. But two years had passed in the meantime. Although ORS 12.020(1) provides that an action is deemed commenced upon completion of filing of a complaint and service upon a defendant of summons and complaint, ORS 12.020(2) provides the common alternative. Under subsection (2), a plaintiff's action is deemed commenced upon the earlier date of the filing of a complaint if the subsequent service of summons and complaint on a defendant is achieved within 60 days of filing. In Baker, the city contended that the “notwithstanding clause” of ORS 30.275(9) rendered ORS chapter 12 wholly inapplicable, most especially the “relation back” provision for commencement of an action at ORS 12.020(2). In the city's view, the claim should have been time barred.

The court recited that ORS 30.275(9) provided, in part, “[n]otwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action,” a claim against a public entity must be commenced within two years. Baker, 343 Or. at 73, 164 P.3d 259 (quoting ORS 30.275(9) ). The court held that the phrase, “providing a limitation on the commencement of an action,” modifies both the terms “ORS chapter 12” an...