Ckh Family Limited Partnership v. Holt Homes, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2019
• Docket: 18-35154
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CKH FAMILY LIMITED PARTNERSHIP, No. 18-35154 a Texas limited partnership; et al., D.C. No. 3:17-cv-00441-SI Plaintiffs-Appellants,

v. MEMORANDUM*

HOLT HOMES, INC., an Oregon corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted May 15, 2019 Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

Plaintiffs CKH Family Limited Partnership, Waldemar Maya, and Van Shaw

sued defendants Greg Kubicek and his company Holt Homes, Inc., for various

violations of Oregon law. The alleged violations arise in part from Kubicek’s

failure to disclose a loan he made through Holt Homes in order to close a sale of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 3

investment properties while acting as plaintiffs’ agent. The district court granted

summary judgment to defendants on the ground that the case was time-barred

under Oregon’s two-year statute of limitations. See Or. Rev. Stat. § 12.110(1).

We affirm.

In Oregon, “the statute of limitations begins to run when the plaintiff knows

or in the exercise of reasonable care should have known facts which would make a

reasonable person aware of a substantial possibility that each of the three elements

(harm, causation, and tortious conduct) exists.” Gaston v. Parsons, 864 P.2d 1319,

1324 (Or. 1994). The application of this “discovery accrual rule is a factual issue

for the jury unless the only conclusion a reasonable jury could reach is that the

plaintiff knew or should have known the critical facts at a specified time and did

not file suit within the requisite time thereafter.” T.R. v. Boy Scouts of America,

181 P.3d 758, 765 (Or. 2008).

Plaintiffs argue that they knew or should have known about critical facts

related to the alleged violations only when defendants presented them with a

document disclosing the purportedly unlawful loan on June 22, 2015. But even

assuming that plaintiffs lacked the requisite notice in 2011, when they first brought

suit in Texas, we conclude that plaintiffs were put on such notice by May 5, 2014,

when defendants first provided them with a document of transactions including the

loan. Page 3 of 3

Plaintiffs argue that the 2014 disclosure did not provide adequate notice

because the loan was listed on page 18 of a 22-page document, and a list of

acquisition loans also provided in 2014 misleadingly did not include the loan. But

as the district court noted, the May 2014 document provides the same critical facts

included in the June 2015 document that plaintiffs acknowledge gave them

sufficient notice. The district court properly granted summary judgment to

defendants because the claims were time-barred after plaintiffs waited more than

two years following the 2014 disclosure to file their complaint.

Plaintiffs have not challenged the district court’s attorney’s fees order on any

basis other than that defendants were not prevailing parties. Because we have

affirmed the district court’s order granting defendants summary judgment, we

affirm the attorney’s fees order as well.

AFFIRMED.