Withers v. Milbank

• Citation: 678 P.2d 770,67 Or.App. 475
• Decision Date: 21 March 1984
• Docket Number: No. A8212-07593,A8212-07593
• Parties: Robert L. WITHERS, Appellant, v. M. Chapin MILBANK, Respondent. ; CA A29162.
• Court: Court of Appeals of Oregon

Page 770

678 P.2d 770

67 Or.App. 475

Robert L. WITHERS, Appellant, v. M. Chapin MILBANK, Respondent.

No. A8212-07593; CA A29162.

Court of Appeals of Oregon.

Argued and Submitted Feb. 3, 1984.

Decided March 21, 1984.

John E. Magee, Portland, argued the cause for appellant. With him on the brief was Marvin S. Nepom, Portland.

Vicki Hopman Yates, Portland, argued the cause for respondent. With her on the brief was Landis, Aebi & Bailey, P.C., Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Plaintiff appeals the dismissal with prejudice of his legal malpractice action against defendant. We affirm.

In early 1972, while acting as plaintiff's attorney, defendant prepared an antenuptial agreement. The agreement was signed by plaintiff and his intended wife on April 29, 1972. The couple was married the following day. In September, 1979, plaintiff's wife initiated dissolution proceedings. A decree was entered in August, 1982, providing for certain payments to be made by plaintiff to his former wife and for a division of the parties' property.

Contrary to what plaintiff alleges was its intended purpose, the antenuptial agreement was drafted so that it only covered what would happen to the parties' assets in the event of death. It did not provide for the contingency of divorce. Because of that omission, plaintiff filed a legal malpractice action in December, 1982, alleging that defendant's negligent drafting of the antenuptial agreement had caused him damage in the amount of $290,000. Defendant moved to dismiss the complaint on the grounds that the action was barred by the statute of ultimate repose, ORS 12.115(1) or, in the alternative, that the action was barred by the statute of limitations. ORS 12.110(1). The trial judge granted the motion, dismissing plaintiff's complaint with prejudice. Plaintiff claims that the dismissal with prejudice was error.

We are unable to determine whether the trial judge's dismissal was based on ORS 12.110(1) ¹ or 12.115(1), but we find that it was required by the latter. ORS 12.115(1) 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."

This statute was enacted in response to the "discovery rule" articulated in Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). See Josephs v. Burns & Bear, 260 Or. 493, 491 P.2d 203 (1971). In drafting ORS 12.115(1), the legislature considered the problem of long-delayed tort litigation brought about by delayed discovery and endeavored to prescribe an ultimate cutoff date beyond which a specific act or omission is no longer actionable. Josephs v. Burns & Bear, supra. The cutoff was intended to occur "regardless of when the damage resulted or when the act or omission was discovered." 260 Or. at 500, 491 P.2d 203.

ORS 12.115(1) has been held to apply to a wide range of tort actions. See, e.g., Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974). However, until now, no case has addressed whether it is applicable to suits based on alleged legal malpractice. There is no reason to treat legal malpractice actions differently than other types of negligence.

Affirmed. ²

1 ORS 12.110(1) is the basic statute of limitations for negligence...