IN RE: Dennis Ray Fox (2026)

Petitioner Frank Gable spent decades in prison serving his sentence on a murder conviction that was eventually overturned. When the charges against him were dismissed, petitioner brought an action in federal court against two dozen individuals, including former police officers Emil Ernest Brandaw, Dennis Ray Fox, William John Pierce, and Mark Dumbeck Ranger. As relevant to this appeal, petitions were then filed to open estates and appoint personal representatives for the estates of those four men, each of whom had died while petitioner was in prison, so that the personal representatives could be named in the federal action. The probate court denied the petitions. It reasoned that, under ORS 12.190, any claims against a personal representative had to be brought within one year of the decedent's death, so there was no reason to appoint personal representatives when any claims against them would be untimely. Petitioner appeals, arguing that the probate court misconstrued ORS 12.190. As explained below, we agree and therefore reverse and remand for further proceedings.

BACKGROUND

In 1991, petitioner was convicted of the murder of Oregon Department of Corrections Director Michael Francke. Later, petitioner filed a habeas corpus petition in the United States District Court for the District of Oregon, asserting wrongful conviction. In 2019, the district court granted the petition in part, vacated petitioner's conviction, and ordered petitioner released unless the state elected to retry him within 90 days. Gable v. Williams, No 3:07-cv-00413-AC (D Or Apr 18, 2019), aff'd, 49 F4th 1315 (9th Cir 2022), cert den, ___ US ___, 143 S Ct 1796, 215 L Ed 2d 678 (2023). Then, in May 2023, the district court dismissed the criminal charges against petitioner with prejudice. Gable v. Williams, No 3:07-cv-00413-AC (D Or May 12, 2023). According to petitioner, the dismissal of the charges was a necessary predicate to his filing a 42 USC section 1983 action against the individuals who he alleges are responsible for his wrongful conviction.

On July 11, 2024, petitioner filed a section 1983 action in federal court against two dozen individuals. Petitioner later learned that some of the named defendants—including Brandaw, Fox, Pierce, and Ranger—were deceased. Petitioner contacted an attorney, Maite Uranga, who filed petitions in probate court in October 2024, seeking to open estates for the four decedents and to appoint Uranga as personal representative for their estates, so that the estates could be named as defendants in the federal action. According to the petitions, Brandaw died in 2015, Fox died in 1997, Pierce died in 2011, and Ranger died in 2021. The petitions were unopposed.

The probate court denied the petitions as untimely pursuant to ORS 12.190. Petitioner intervened and moved to reconsider. At a hearing on the motion, the court explained that, although it agreed that an action can be brought against a person after their death and that the right way to do it is to name the personal representative, the court understood ORS 12.190 to operate as a statute of limitations requiring all actions to be commenced within one year of the person's death. Petitioner disagreed with that reading of ORS 12.190 and filed a supplemental brief in support of his position. The court summarily denied reconsideration on January 29, 2025. It later entered general judgments denying the petitions. Petitioner appeals.

ANALYSIS

Petitioner contends that the probate court erred in denying the petitions. He argues that his federal action was filed within the applicable two-year statute of limitations for his claims, that the probate court misconstrued ORS 12.190 as a statute of limitations requiring all actions to be brought within one year of an alleged wrongdoer's death, that its construction in fact would make ORS 12.190 a statute of repose, and that any question about the timeliness of his federal claims is for the federal court to decide.

As a preliminary matter, we note that, under Oregon law, personal injury claims against an alleged wrongdoer survive the death of the wrongdoer. See ORS 30.080 (“Claims for relief arising out of injury to * * * a person, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person * * * shall have a claim for relief against the personal representatives of the wrongdoer as if the wrongdoer had survived, except for those damages provided for in ORS 30.020 (2)(e).”). Moreover, an injured person may move for appointment of a personal representative in aid of pursuing their claims. See ORS 30.090 (“If no probate of the estate of the wrongdoer has been instituted within 60 days from the death of the wrongdoer, the court, upon motion of the injured person, * * * shall appoint an administrator of the estate of the wrongdoer.”). That is important because, once an alleged wrongdoer has died, any claims must be pursued against the estate, rather than the decedent. Worthington v. Estate of Milton E. Davis, 250 Or App 755, 764, 282 P3d 895, rev den, 352 Or 565 (2012) (explaining that “the personal representative of a deceased person's estate is not merely the decedent by a different name,” that they “do not have coextensive legal identities any more than they have coextensive lives,” and that a plaintiff who sues a deceased person instead of the personal representative has “not merely misnamed the correct defendant” but “has chosen the wrong person to sue”); see also Smith v. Wells, 128 Or App 492, 499, 876 P2d 850 (1994) (“Without [ORS 30.090], the decedent's survivors could thwart the victim's legitimate claim against the estate by refusing to initiate probate until after the statute of limitations for the action had run.”).

In this case, the probate court recognized that petitioner's claims against the four police officers survived the officers’ deaths and that petitioner wanted personal representatives appointed for their estates precisely because he was trying to bring his claims against the correct parties. The court denied the petitions, however, because it read ORS 12.190 as requiring any action to be brought within one year of an alleged wrongdoer's death. Petitioner contends that the court misread ORS 12.190 and that, properly understood, ORS 12.190 is not a statute of limitations or statute of repose and does not make his claims untimely. In petitioner's view, ORS 12.190 sometimes extends the statute of limitations and never shortens the statute of limitations.

The question before us, then, turns on the correct construction of ORS 12.190. The correct meaning of a statute is a question of law. State v. Ramoz, 367 Or 670, 704, 483 P3d 615 (2021). Our “paramount goal” is to discern the enacting legislature's intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). We must endeavor to construe the statute correctly, regardless of the specific interpretations put forth by the parties. State v. Wimmer, 325 Or App 372, 376 n 1, 529 P3d 307, rev den, 371 Or 509 (2023).

We follow a three-step methodology in construing statutes. Gaines, 346 Or at 171-72. The first step is to examine the disputed text in context. Id. at 171. Text and context “must be given primary weight in the analysis,” because “[o]nly the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law.” Id. The second step is to consider any pertinent legislative history that the parties have identified or that we have found. Id. at 172 (“Legislative history may be used to confirm seemingly plain meaning and even to illuminate it” or to show that “superficially clear language actually is not so plain at all—that is, that there is a kind of latent ambiguity in the statute.”). The third step—which we take only if the legislative intent “remains unclear after examining text, context, and legislative history”—is to “resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.

Accordingly, we begin with the text, keeping in mind that, unless a word or phrase has a specialized meaning, we typically give “words of common usage” their “plain, natural, and ordinary meaning.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). ORS 12.190 provides in full:

“(1) If a person entitled to bring an action dies before the expiration of the time limited for its commencement, an action may be commenced by the personal representative of the person after the expiration of that time, and within one year after the death of the person.

“(2)(a) If a person against whom an action may be brought dies before the expiration of the time limited for its commencement, an action may be commenced against the personal representative of the person after the expiration of that time, and within one year after the death of the person.

“(b) Notwithstanding paragraph (a) of this subsection, if an action is commenced against a defendant who dies before the expiration of the time limited for commencement of the action or within 60 days after the action is commenced, a party may amend the complaint within 90 days after the action is commenced to substitute the personal representative of the defendant's estate for the deceased defendant. An amendment under this paragraph relates back to the date the complaint was filed.”

We understand the probate court to have relied on subparagraph (2)(a) in concluding that any action against a personal representative must be commenced within one year of the decedent's death.¹ We therefore focus our attention on that subparagraph.

ORS 12.190(2)(a) begins by limiting its application to situations in which “a person against whom an action may be brought dies before the expiration of the time limited for its commencement.” As a matter of plain language, we understand “a person against whom an action may be brought” to refer to a potential defendant in a civil action. The phrase “before the expiration of the time limited for its commencement” has a more specialized meaning, as explained in Mitchell v. Harris, 123 Or App 424, 859 P2d 1196 (1993). It does not refer to the period before the expiration of the statute of limitations itself but, instead, the period ending on the sixtieth day following the expiration of the statute of limitations.² Id. at 428-29. We refer to that as the SOL+60 period. Put succinctly, ORS 12.190(2)(a) applies when a potential defendant dies before the SOL+60 period ends. Id.

ORS 12.190(2)(a) goes on to provide that, in that situation, “an action may be commenced against the personal representative of the person after the expiration of that time, and within one year after the death of the person.” (Emphases added.) That language requires somewhat closer scrutiny to discern its meaning. On examination, we understand it to mean that an action may be commenced against the personal representative after the SOL+60 date—a point in time at which the action would normally be untimely—as long as it is within one year of the decedent's death.

Importantly, we do not understand ORS 12.190(2) (a) to provide that all actions against the personal representative must be commenced after the expiration of the SOL+60 period, such that all actions are subject to the one-year-from-death limitation. Commencing an action after the SOL+60 period expires is permissive. When a potential defendant dies before the SOL+60 period expires, an action “may” be commenced against the personal representative “after the expiration of [the SOL+60 period], and within one year after the death of the person.” ORS 12.190(2)(a). However, nothing in ORS 12.190(2)(a) precludes someone from commencing an action against the personal representative before the SOL+60 period expires. And, if someone commences an action against the personal representative before the SOL+60 period expires, we do not understand ORS 12.190(2)(a) to apply.

The probate court construed ORS 12.190(2)(a) to mean that, when a person dies during the SOL+60 period, potential plaintiffs have one year from the date of death to bring any action against the personal representative. That is, it read ORS 12.190(2)(a) as basically creating a one-year statute of limitations to commence any action against the estate, regardless of when the statute of limitations would normally run. Under that view, whether one day, three months, or five years remained before the statute of limitations would normally expire, ORS 12.190(2)(a) kicks in upon the decedent's death and resets all statutes of limitations to one year. So read, ORS 12.190(2)(a) would extend the limitations period in some cases, and, in others, it would shorten the limitations period and effectively serve as a statute of repose. See Marshall v. PricewaterhouseCoopers, LLC, 334 Or App 751, 754-55, 557 P3d 190 (2024) (statutes of limitations “limit the time a party has to initiate an action once a claim has accrued,” whereas statutes of repose “set maximum times to file a claim, regardless of the date of discovery of an injury or other circumstances that may affect the expiration of a statute of limitation” (internal quotation marks omitted)).

But that construction is contrary to the text of ORS 12.190(2)(a) as we understand it. ORS 12.190(2)(a) does not say that, if a potential defendant dies before the SOL+60 period has expired, any action against the personal representative must be commenced within one year of their death. It says that, if a potential defendant dies before the SOL+60 period expires, an action against the personal representative may be commenced after the SOL+60 period has expired and within one year of their death. Rather than replacing all existing statutes of limitations with a global one-year statute of limitations that starts running on the date of death, ORS 12.190(2)(a) simply provides a grace period to commence an action against the personal representative, for those parties who are unable to commence the action within the normal limitations period and need more time. Cf. Blaskower v. Steel, 23 Or 106, 108-09, 31 P 253 (1892) (describing a similarly worded statute as preserving “the right to bring an action * * * after the appointment of an executor or administrator, when the time limited would otherwise expire subsequent to the death of the debtor, and before the appointment of his personal representative”). Its practical effect is to extend the statute of limitations for up to one year for plaintiffs whose actions would otherwise be untimely due to being filed after the expiration of the SOL+60 period. It has no effect or application, however, as to actions that are timely commenced before the expiration of the SOL+60 period.³

Our reading of the text finds support in context. ORS 12.190(1) and ORS 12.190(2)(a) are parallel provisions that track each other word for word, except that the former addresses plaintiff-decedents and the latter addresses defendant-decedents. We have historically read ORS 12.190(1) in a manner consistent with our construction of ORS 12.190(2) (a) herein, although admittedly only in dicta as we have not had occasion to construe it in a case in which it applied. We have described ORS 12.190(1) as an “extension statute” that applies to actions commenced at a point in time when they would otherwise be untimely. See Davis v. State of Oregon, 267 Or App 264, 272-73, 272 n 6, 340 P3d 713 (2014), rev den, 357 Or 164 (2015) (describing ORS 12.190 as an “extension statute” that does “not itself serv[e] as a statute of limitation” and that “does not replace whatever statute of limitation, among the alternatives, that may pertain to a given category of claim” but “instead, under the right circumstances, * * * offers to extend the time in which to file the claim”); Bell v. Tri-Met, 247 Or App 666, 675 n 4, 271 P3d 138 (2012), aff'd, 353 Or 535, 301 P3d 901 (2013) (“Under ORS 12.190(1), * * * an action brought by a personal representative beyond the generally applicable limitation period is untimely unless commenced within a year of the decedent's death”).⁴

Even stronger contextual support is found in the history of ORS 12.190. The probate court appears to have interpreted ORS 12.190(2)(a) as a one-year statute of limitations in part due to its expressed concern that actions based on alleged wrongdoing by a person since deceased must be foreclosed at some point. But any such limitation does not lie in ORS 12.190, as examination of an earlier version of the statute makes clear. Before 1969, ORS 12.190 provided:

“If a person against whom an action may be brought dies before the expiration of the time limited for its commencement, and the cause of action survives, an action may be commenced against his personal representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration; but no suit or action for collection of any claim against the estate of a decedent may be maintained, when no letters testamentary or of administration shall have been issued before the expiration of six years after the death of the decedent.”

ORS 12.190 (1967), amended by Or Laws 1969, ch 591, § 268, and Or Laws 2021, ch 282, § 24 (emphasis added). The six-year provision was removed from ORS 12.190 in 1969. Or Laws 1969, ch 591, § 268. That makes two things clear. First, the one-year provision in ORS 12.190 was not intended to shorten the normal statute of limitations for an action or to serve as a one-year statute of repose for all claims against an estate. Second, any limitation on bringing claims against an estate now lies elsewhere than ORS 12.190.⁵

Based on the foregoing analysis, we conclude that ORS 12.190(2)(a) applies only when a person commences an action against the personal representative of a decedent's estate after the SOL+60 period has expired. When that occurs, ORS 12.190(2)(a) extends the statute of limitations to expire one year after the decedent's death. ORS 12.190(2) (a) never shortens the statute of limitations, however, such that a person must commence an action sooner than would otherwise be required. It simply does not apply to actions that are timely in their own right.⁶

If follows that the probate court misconstrued ORS 12.190(2)(a) when it read it to impose a general one-year time limit, ending one year after the decedent's death, in which to commence any action against the personal representative. We agree with petitioner that, where a statute of limitations would expire in the normal course more than one year after the decedent's death, ORS 12.190(2)(a) does not shorten or otherwise affect the statute of limitations. The plaintiff receives no benefit from ORS 12.190(2)(a) in that scenario, but also suffers no detriment.

Thus, in this case, petitioner is correct that he was not required to commence a federal action against the personal representative of each decedent's estate within one year of the decedent's death—something that would have been impossible if his claim had not yet accrued. Rather, he was free to commence the action anytime before the expiration of the SOL+60 period.

That does not fully resolve the matter, insofar as petitioner has yet to commence an action against the personal representatives of the decedents’ estates, as he necessarily cannot do so until personal representatives are appointed. Meanwhile, the SOL+60 period has expired while this case works its way through the state courts. According to petitioner, the applicable statute of limitations was two years and expired on May 3, 2025. Petitioner filed claims against the decedents in July 2024, but he obviously could not serve summons on the decedents so as to “commence” an action against them, and petitioner seems to acknowledge that the decedents were the wrong parties to name as defendants in any event. See Worthington, 250 Or App at 764 (explaining that, in naming the decedent as the defendant instead of his personal representative, the plaintiff sued the wrong party, rather than suing the right party by the wrong name).

Of course, had the petitions filed in October 2024 been granted, petitioner would have had ample time to file claims against the personal representatives in federal court, before the statute of limitations that he believes applies expired in May 2025. That fact potentially distinguishes this case from Wheeler v. Williams, 136 Or App 1, 5-6, 900 P2d 1076, rev den, 322 Or 362 (1995), in which the plaintiff filed a negligence action against a deceased person and “did not seek the appointment of a personal representative until July 1993,” more than two months after the statute of limitations expired. Further, petitioner has suggested that principles of federal law may prevent the application of state law in a way that thwarts him from obtaining relief in a section 1983 action in some circumstances. See Chaudhry v. City of Los Angeles, 751 F3d 1096, 1103 (9th Cir), cert den, 574 US 876 (2014) (where federal law is silent, state law will govern section 1983 actions, unless state law is inconsistent with the policies of section 1983).

We decline to take a position on whether petitioner has a viable procedural pathway to bring claims in federal court against the personal representatives of the decedents’ estates at this point in time. As we understand it, the probate court denied the petitions based entirely on its reading of ORS 12.190(2)(a) as a one-year statute of limitations running from the decedent's death. That basis for denying the petitions was legally incorrect, as we have explained. No other issue is actually before us on appeal, nor has any other issue been meaningfully briefed. And, certainly, no one has asked us to consider an alternative basis to affirm. We therefore end our analysis there, and we reverse and remand for further proceedings consistent with this opinion.

On remand, the probate court will need to decide whether to deny the petitions on some basis other than it did the first time or, conversely, grant them and appoint personal representatives. Petitioner argues that, as to any potential time bars, it would be better to let the federal court decide whether his claims against the personal representatives are timely. As stated in his motion for reconsideration: “If the federal court concludes that the claims are untimely, they will be dismissed. If not, petitioner will be able to pursue his claims into discovery. In either case, appointing personal representatives for the estates of Brandaw, Fox, Pierce, and Ranger simply allows the federal suit to go forward and resolve the issue one way or another.” Petitioner has not put forward any argument, however, that it is legally improper for the probate court to assess the viability of claims to be brought against a personal representative in deciding whether to appoint one. We therefore express no opinion on that issue. We reverse and remand for reconsideration of the petitions.

Reversed and remanded.

FOOTNOTES

1.   In some of the initial orders, the probate court referred to ORS 12.190(1). But that subsection applies only when a potential plaintiff dies, so we perceive that to have been a typo. We understand the probate court to have relied on subsection (2)(a) based on the substance of its explanation for its ruling on reconsideration.

2.   Under ORS 12.020, an action is “commenced” for statute-of-limitations purposes when the complaint has been filed and the summons served, and, if the summons is served within 60 days of filing, “the action against each person of whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed.” That definition of “commenced” is what led us to conclude in Mitchell that “the time limited for its commencement” in ORS 12.090 refers to the end of the SOL+60 period. See Mitchell, 123 Or App at 428-29.

3.   Various cases demonstrate how ORS 12.190(2)(a) extends the relevant statute of limitations when it applies. See, e.g., Wheeler v. Williams, 136 Or App 1, 5, 900 P2d 1076, rev den, 322 Or 362 (1995) (where a car accident occurred on April 3, 1991, and the decedent died on April 26, 1992, the statute of limitations for claims arising from the car accident normally would have expired on April 3, 1993, but was extended to April 26, 1993 by operation of ORS 12.190(2)); Smith, 128 Or App at 496 & n 3 (where a car accident occurred on November 14, 1989, and the decedent died on January 8, 1991, the statute of limitations was extended to January 8, 1992, by operation of ORS 12.190(2)); Mitchell, 123 Or App at 428-29 (where a car accident occurred on December 15, 1988, the statute of limitations normally would have expired on December 15, 1990, but the defendant died on January 24, 1991, within the SOL+60 period, so it was extended to January 24, 1992, by operation of ORS 12.190(2)).

4.   We note that ORS 12.190(1) does not apply to personal injury actions. Rather, ORS 30.075 governs personal injury actions brought by the personal representative of an estate, while ORS 12.190(1) governs other actions brought by the personal representative of an estate. Giulietti v. Oncology Associates of Oregon, 178 Or App 260, 265-66, 36 P3d 510 (2001). That holding rests on the fact that ORS 30.075 contains an express time limit for a personal representative to commence a personal injury action not begun before the decedent's death. Id. There is no comparable time limit in ORS 30.080, regarding claims against the personal representative of an alleged wrongdoer.

5.   We have not endeavored a complete review of the probate code but note that one possible source of time limitations is ORS 115.005.

6.   In construing ORS 12.190(2)(a), the court viewed Mendez v. Walker, 272 Or 602, 538 P2d 939 (1975), as particularly relevant. That case involved a negligence action arising from a car accident. Id. at 603. After the action was commenced, the defendant died, and the plaintiff waited more than a year to move to substitute the personal representative of the estate for the decedent. Id. The trial court dismissed the case based on the plaintiff having missed the deadline to substitute set forth in former ORS 13.080(2)(b) (1975), repealed by Or Laws 1979, ch 284, § 199, and the Supreme Court affirmed, analogizing that provision to a statute of limitations. Id. at 604, 607. We do not view Mendez as relevant here, both because it construed an entirely different statute that has since been repealed, and because that statute addressed only substitution when the defendant dies during the pendency of an action, which is not the situation addressed in ORS 12.190(2)(a). We understand the probate court to have viewed ORS 12.190(2)(a) as analogous to a statute of limitations in the same way that former ORS 13.080(2) (b) (1975) was deemed analogous to a statute of limitations in Mendez. We disagree with that view of ORS 12.090(2)(a) for the reasons explained in the text.

AOYAGI, P. J.