Guirma v. O'Brien

Under ORCP 21 A(9), a motion to dismiss on the ground that it was untimely under the statute of limitations for professional negligence cannot be granted if the jury could find that plaintiff did not know critical facts until less than two years before filing her action.

Guirma appealed the trial court's grant of O'Brien's motion to dismiss. Guirma alleged that O'Brien, an attorney who represented her in an adoption proceeding, committed malpractice by arranging to serve the birth mother with the adoption petition by publication - due to the "unknown whereabouts" of the child's birth mother. The trial court granted O'Brien's ORCP 21 A(9) motion to dismiss on the ground that the complaint was untimely under the statute of limitations, and Guirma appealed. Dismissal under ORCP 21 A(9) is appropriate only when a complaint shows on its face that the action was not timely filed. While Guirma may have known that her adoption was being challenged, there was a factual question as to whether she knew or, in the exercise of reasonable care, should have known of a substantial possibility that (1) she had suffered harm, (2) the harm was caused by O'Brien's acts or omissions, and (3) O'Brien's acts or omissions were tortious. The complaint alleged facts from which a jury could find that Guirma did not know the critical facts supporting her claim until less than two years before filing her action, therefore, the trial court erred in granting O'Brien's motion to dismiss. Reversed and remanded.