Niedermeyer v. Dusenbery
| Decision Date | 20 May 1976 |
| Citation | 549 P.2d 1111,275 Or. 83 |
| Parties | Bernard E. NIEDERMEYER, Jr., Appellant, v. Verne DUSENBERY et al., Respondents. . * |
| Court | Oregon Supreme Court |
Bruce J. Rothman, Portland, filed briefs for appellant.
John R. Faust, Jr., of Hardy, Buttler, McEwen, Weiss & Newman, Portland, filed a brief for respondents.
This is an action for legal malpractice. Plaintiff appeals from an order dismissing his complaint after the trial court sustained a demurrer thereto which was based upon the statute of limitations.
The facts are assumed to be those alleged in plaintiff's complaint. In August 1968 defendants represented plaintiff in the sale of plaintiff's interest in a corporation in which plaintiff received as consideration therefor assets of the corporation. Defendants are alleged to have negligently represented plaintiff in that they failed to secure the proper approval of the directors and stockholders of the company to the transfer of the assets of the corporation to plaintiff. In April 1971 the corporation commenced litigation seeking recover for assets of the corporation which had been transferred to plaintiff. Pursuant to such action, judgment was entered against plaintiff for $900,000 and plaintiff incurred $106,000 litigation expense in defense of the action. The present action for malpractice was commenced in August 1974.
The applicable statute of limitations is ORS 12.110(1) and provides for a two-year limitation. U.S. Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976). The issue is when the action accrues since that is the time the limitation period commences to run. ORS 12.010.
The legal problems are identical with those decided in U.S. Nat'l Bank v. Davies, supra, and the decision there is controlling here. We held that in a negligence case the statute of limitations could never commence to run until the occurrence of the harm. However, we also held that even though damage was inflicted and harm incurred when the plaintiff was forced to assume the expense of hiring counsel to defend the claim more than two years prior to the commencement of the plaintiff's action, the statute should not commence to run until such time as it appeared reasonably probable that the cost of litigation was caused by the defendants' negligence rather than by a misapprehension of the corporation as to its legal rights.
There are no allegations in plaintiff's complaint which...
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Shideler v. Dwyer
...18 A.L.R.3d 978 (1968), several states, besides California and New Mexico, have recognized the discovery rule. Niedermeyer v. Dusenberry, (1976) 275 Or. 83, 549 P.2d 1111; Cameron v. Montgomery, (1975) Iowa, 225 N.W.2d 154; Succession of Killingsworth, (1972) La.App., 270 So.2d 196; Hendric......
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City of Aurora, Colorado v. Bechtel Corp., 77-1858
...v. Lynch, 256 Cal.App. 361, 64 Cal.Rptr. 55 (1967); Atkins v. Crosland, 417 S.W.2d 150 (Tex.1967). Attorneys: Niedermeyer v. Dusenbery, 275 Or. 83, 549 P.2d 1111 (1976); McKee v. Riordan, 116 N.H. 729, 366 A.2d 472 (1976); Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131 (1974); Kohler v.......
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Comley v. Emanuel Lutheran Charity Bd., 417-542
...injury is arguably an element of the cause of action under some cases applying the statute of limitations, E. g., Niedermeyer v. Dusenbery, 275 Or. 83, 549 P.2d 1111 (1976); U. S. Nat'l Bank v. Davies, 274 Or. 663, 548 P.2d 966 (1976). The purpose of such an extension of limitation, however......
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Barnes v. A.H. Robins Co., Inc., 784S265
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