Werschky v. Moore , 75 Or. App. 169 ( 1985 )

RICHARDSON, P. J.

This is a legal malpractice action, in which the trial court granted partial summary judgment for defendant on all but one of plaintiffs claims on the ground that they were barred by the two-year Statute of Limitations. ORS 12.110(1). After plaintiff repleaded, the court granted defendant’s motion to strike plaintiffs remaining claim that ostensibly alleged a breach of contract. The trial court apparently concluded that that claim sounded in tort and was also barred by the two-year statute. Plaintiff appeals, assigning error to both rulings.

Plaintiff argues that the granting of the partial summary judgment was error, because there was a question of fact as to whether he did discover or reasonably should have discovered his claim against defendant more than two years before the time he instituted this action. The only argument defendant makes to the contrary now and, apparently, the only argument he made below is that plaintiffs letter to the Oregon State Bar, complaining of defendant’s conduct, shows that plaintiff had information more than two years before he brought the action from which he knew or should have known that he had a claim. Our review of the letter does not persuade us that a reasonable factfinder would have to determine that plaintiff knew any salient fact about the quality and results of defendant’s representation at any time more than two years before the action was commenced.

The dissent’s conclusion appears to be based on statements in the letter that might compel the conclusion that, as a matter of law, plaintiff was aware of a possible cause of action against defendant for his participation in an intentional tort. However, we do not agree that the letter leaves no fact question as to whether plaintiff was aware when he wrote it of professional malpractice by defendant.

Defendant also appears to argue that, if the time when plaintiff acquired sufficient knowledge of his claim cannot be ascertained from the letter alone, it can be determined by reading the letter in conjunction with the version of plaintiffs complaint that was current when summary judgment was granted. Whether the letter is looked at alone or it is considered with the complaint, all defendant succeeds in showing is a set of permissible inferences which could support a finding that plaintiff knew or should have known that he had a claim against defendant more than two years before plaintiff sued him. However, such inferences are for the trier of fact to draw, and such a finding is for the trier of fact to make. See Peterson v. Mult. Co. Sch. Dist. No. 1, 64 Or App 81, 85-86, 668 P2d 385, rev den 295 Or 773 (1983), and authorities there cited. The trial court erred by granting the partial summary judgment.

Because the issue may arise on remand, we address plaintiffs second assignment of error. As it was pleaded at the time the trial court granted the motion to strike, plaintiffs purported claim for breach of contract “merely incorporate^] by reference or implication a general standard of skill and care to which defendant would be bound independent of the alleged contract.” Securities-Intermountain v. Sunset Fuel, 289 Or 243, 259, 611 P2d 1158 (1980). The trial court’s ruling was correct.

Reversed and remanded.