50 Trial Lawyer • Summer 2023 constituting harmless error, or as premature given that a remand is required to correct the errors identified by the court of appeals. Legal malpractice action accrues when the plaintiff knows, or should know, that the lawyer was negligent and the negligence caused some harm, even if the full extent of the harm is not yet known. Cockey v. Mead, 324 Or App 526 (2023); Joyce, J. The plaintiff was represented by Matt Whitman. Concerned about his adult disabled daughter’s safety while in the guardianship of her mother, the plaintiff hired the defendant lawyer to petition in probate court for the mother’s removal as guardian, his own appointment as guardian and his daughter’s placement in his home. Despite that plan, the defendant stipulated to the appointment of an independent guardian who decided to place the daughter in a group home. The plaintiff later hired a new attorney to petition the court to have the independent guardian replaced by the plaintiff. The court did not grant that relief and instead ordered the plaintiff to pay the independent guardian’s legal fees. In June 2019, the plaintiff sued the defendant for malpractice. The plaintiff admitted he knew by April 2017 that the defendant’s negligence had caused him harm in the form of legal expenses he had incurred to try to undo the malpractice. The court granted summary judgment to the defendant on the ground that the plaintiff’s claim was barred by the twoyear statute of limitations. The Court of Appeals affirmed, explaining how the discovery rule applies in legal malpractice actions. Where the outcome of litigation subsequent to an allegedly negligent act could establish that the defendant was not negligent in the first instance, the statute of limitations does not begin to run until the conclusion of that litigation. But where the plaintiff knows, or should know, that the defendant was negligent, and the subsequent litigation serves only to determine the extent of the harm, the statute of limitations begins to run from the time the plaintiff learns or should have learned that the defendant’s act was negligent and that the negligence caused some harm. In this case, the record left no issue of material fact about when the limitation period commenced. More than two years before the plaintiff filed his malpractice claim, he knew, or should have known, that the defendant was negligent and that that negligence had caused him some harm. Liability cap in ORS 30.272 applies only to damages, not attorney fees. Bush v. City of Prineville, 325 Or App 37 (2023); Pagán, J. The plaintiff was represented by Roxanne Farra. While the plaintiff was the City of Prineville’s police chief, he also served in the Oregon National Guard. The city had an investigation done of the plaintiff’s use of leave from his police duties to perform National Guard duties. Based on the results of that investigation, the city fired the plaintiff. The plaintiff sued the city for employment discrimination. The city made an offer of judgment, which the plaintiff accepted, for a specified amount of damages plus attorney fees. When the plaintiff sought attorney fees, the city objected on the grounds that the sum of the damages paid under its offer of judgment and the fees sought exceeded the limitation on liability in ORS 30.272, a provision of the Oregon Tort Claims Act (OTCA). The question was whether the word “liability” in that statute applies to damages only or also to attorney fees. The trial court granted the plaintiff’s fee request, and the Court of Appeals affirmed on that issue of statutory interpretation. The Court of Appeals reasoned that Sheets Continued from p 49
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