dissenting.
I respectfully dissent from the majority opinion with respect to plaintiffs claims for negligence and fraud against defendant realtors. The majority holds that the statute of limitations on the negligence and fraud claims commenced to run on May 19,1978.1 would hold that the statute of limitations on those claims commenced to run on June 23, 1980, the date of the second Court of Appeals decision. That date is within two years of the date plaintiff filed this action.
On June 23,1980, the Court of Appeals reversed the trial court’s summary judgment for plaintiff as the defendant in Jones’s specific performance suit against her, held plaintiff was bound by the earnest money agreement with Jones and granted Jones a summary judgment. Until that date, plaintiff s harm was “provisional,” even though she had discovered defendants’ negligence and fraud by May 19,1978. If she had continued to defend successfully against Jones’ suit, she would *515have had no obligation to Jones and would not have suffered harm as a result of defendants’ actions. I do not agree with the majority that “the actual harm” plaintiff suffered was determined by May 19,1978.
Plaintiff defended against Jones’ suit on the ground that the earnest money receipt was void, because the sale closing did not occur on May 1,1978. See Jones v. Jaquith, 46 Or App 671, 612 P2d 770, rev den 289 Or 677 (1980), former opinion 44 Or App 727, 606 P2d 1179 (1980). The trial court in Jones’ suit agreed with plaintiff here and granted her a summary judgment. Although plaintiffs defense against Jones’ suit was not clearly inconsistent with her claims against defendants for negligence and fraud, nonetheless, if plaintiff had sued defendants prior to June 23,1980, they would have argued in defense that the harm suffered by plaintiff was provisional. Defendants would have raised the substantial defense that plaintiff had not yet suffered harm as a result of their alleged negligence or fraud.
In U. S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976), the court held that the plaintiffs cause of action for malpractice did not accrue until the lawsuit against the plaintiffs decedent was settled, that prior to the settlement the plaintiffs cause of action against the attorney was only “provisional” and that it was not wise to encourage the filing of “provisional” actions. Had such an action been filed, the plaintiffs decedent would have defended against one suit, claiming that he had acted in conformity with law, while simultaneously maintaining an action against the defendants, claiming that because of his lawyer’s advice he had not acted in conformity with the law. The court stated that “[s]uch an inconsistent position would have given rise to impeachment of decedent in his defense of the action brought against him, which certainly is not desirable from either of the present parties’ point of view.” 274 Or at 670. The court then stated:
“This is one of those situations in which common sense dictates that a ‘later event’ (the appearance of decedent’s probable liability) should take place before the statute commences to run. * * *” 274 Or at 670.
It is not a common sense application of the statutes of limitation to require plaintiff to bring her action against defendants as early as the majority holds. The majority recognizes *516the artificiality of its position by stating that, if plaintiff had filed her action within the limitation period the majority finds applicable “and if the full extent of her damages were unknown, she could have requested a stay in order to await the outcome of the specific performance suit.” The majority does not attempt to describe the confusing legal situation which would have resulted. As in U. S. Nat’l Bank v. Davies, supra, this is a situation in which common sense dictates that a later event (the appearance of plaintiffs probable liability to Jones as a result of the decision of this court on June 23,1980) should take place before the statutes of limitation on the negligence and fraud claims commence to run.
Gillette, Warden and Rossman, JJ., join in this dissent.