Taylor v. Settecase

685 P.2d 470, 69 Or. App. 222
Court of Appeals of Oregon·Decided July 18, 1984·No. 125,774; CA A26518·Published·Cited by 3 cases

Opinion

WARDEN, J.

Plaintiff petitions for reconsideration of our earlier decision,1 in which we affirmed the trial court’s grant of a summary judgment in defendants’ favor. We allow the petition for reconsideration, withdraw our former opinion, reverse and remand.

In this action for damages, plaintiff alleged that he had orally contracted with defendants to perform certain architectural services.2 Defendants moved for summary judg[225]*225ment on the ground that the action had not been commenced within the two-year limitation period under ORS 12.110(1) and former ORS 12.135.3 On the basis that ORS 12.110(1) applies, the trial court granted the motion and entered judgment for defendants. Without reaching the issue of the applicable limitation period, we affirmed.

[226]*226In affirming, we reviewed defendant’s affidavit— which was not opposed by counter-affidavit, or by any other admissible evidence under ORCP 47C — that, we stated, specifically controverted each of the allegations in plaintiffs complaint:

“The affidavit establishes that defendants were orally employed to draw plans and specifications for remodeling plaintiffs building. It further establishes that the moving of the building, its construction or remodeling, and the design and installation of the heating system were all done by firms other than defendant. Plaintiffs complaint does not allege that defendant failed to properly draw plans and specifications for remodeling the building. With respect to the allegation in the complaint that defendant ‘fail[ed] to properly plan and specify appropriate heating and cooling units * * *,’ defendants’ affidavit establishes that plaintiff only requested defendant to procure ‘mechanical and heating engineers, Morrison, Funatake, Inouye, Andreus, Inc. who designed and oversaw the installation of the heating system.’ ” Taylor v. Settecase, supra, 66 Or App at 336, n 1.

We concluded that the defendants’ affidavit showed that there remained no material issue of fact.

In his petition for reconsideration, plaintiff urges that, although the affidavit establishes that the moving, construction and remodeling of the building were performed under separate contracts, defendants nevertheless had a duty of supervision. That duty, argues plaintiff, was not sufficiently controverted by the affidavit. On reconsideration, we conclude that we read the complaint too narrowly and, therefore, failed to consider whether the limitation period of ORS 12.110(1) applies to this action.4 We now consider which statute of limitation applies.

[227]*227Defendants contend that plaintiff s action is barred by the two-year limitation of either ORS 12.110 or 12.135(1), relying on “guidelines set forth in Securities Intermountain, Inc. v. Sunset Fuel Co., 289 Or 243, 611 P2d 1158 (1980).” Plaintiff contends that his claim is governed by ORS 12.080(3), which provides in relevant part:

“An action for waste or trespass upon or interference with or injury to any interest of another in real property * * *
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“shall be commenced within six years.”

In Beveridge v. King, 292 Or 771, 643 P2d 332 (1982) — an action commenced more than two but fewer than six years after the cause of action accrued — the plaintiffs claimed that the defendant had agreed in writing to furnish the labor and materials necessary for constructing a house. The complaint alleged that an implied term of the contract was that the defendant would construct the house in a “workmanlike manner” but that the defendant had failed to do so. The defendant contended that, because the plaintiffs did not allege a breach of any specific contract provision, the claim was barred by ORS 12.110(1).

In holding that ORS 12.110(1) did not bar the plaintiffs claim, the court stated:

“In order for the part of ORS 12.110(1) with which we are here concerned to control disposition of an action, two factors must be present: (1) the action must not be one ‘arising on contract’ and (2) the action must be ‘not especially enumerated in this chapter [12].’
* * * *
[228]*228“The cases upon which defendant relies, other than those dealing with ‘injury to the person,’ dealt with what ORS 12.110(1) calls ‘injury to the * * * rights of another.’ (Emphasis added.) ORS 12.080(3) deals with ‘injury to any interest of another in real property.’ (Emphasis added.) An action for damages for injury to any interest of plaintiffs in the real property which was the subject of this sale is ‘especially enumerated’ in ORS 12.080(3).
“Defendant does not take the position that his alleged misperformance injured property that still belonged to him, i.e., injured his own rights in the property; if he did, he could not rely upon ORS 12.110(1), which is concerned with injury to the rights of another. Necessarily, therefore, it is defendant’s position that his alleged wrongdoing concerned the rights of another in that property. The only other persons who had any material rights in the real property were the plaintiffs, the contract purchasers of the property. This is because of the doctrine of equitable conversion.” 292 Or at 777-78. (Emphasis in original.)

The court concluded:

“ORS 12.110(1) is not applicable either because the action does arise on contract[5] or because the injuries here were to the interests of ‘another’ in real property and the action to recover damages for those injuries is especially enumerated in ORS 12.080(3).” 292 Or at 778-79.

The injuries alleged in the present case do not differ materially from the injuries alleged in Beveridge.

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Taylor v. Settecase, 685 P.2d 470, 69 Or. App. 222 (Or. Ct. App. 1984).

685 P.2d 470 (Taylor v. Settecase) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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