Ckh Family Limited Partnership, a Texas limited partnership; v. HOLT HOMES, INC., an Oregon corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CKH FAMILY LIMITED PARTNERSHIP,
a Texas limited partnership; et al.,
Plaintiffs-Appellants,
v.
HOLT HOMES, INC., an Oregon
corporation; et al.,
Defendants-Appellees.
No. 18-35154
D.C. No. 3:17-cv-00441-SI
MEMORANDUM*
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.
FILED
MAY 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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.

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