Argued and submitted on July 11, 2013.
Construction Contractors Board 171009101
Thaddeus J. Hettle argued the cause for petitioner. With him on the briefs was Hettle & Associates.
Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent Construction Contractors Board. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
No appearance for respondent Homemasters, Inc.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Complainant filed a claim with the Construction Contractors Board (the board) against Homemasters, Inc. (respondent), alleging that respondent performed negligent and improper work in connection with examining windows in a home that complainant was preparing to purchase and providing an opinion about related damage. Complainant seeks judicial review of a final board order, which dismissed his complaint and concluded that complainant had failed to state a claim for relief for negligent or improper work pursuant to ORS 701.140 and OAR 812-004-0535(1)(b). We conclude that the board did not err in dismissing the claim and affirm.
We review the board's findings of fact for substantial evidence; that is, we must determine whether the record, viewed as a whole, would permit a reasonable person to make the factual findings that the board made. ORS 183.482(8)(c). We review the board's legal conclusions for errors of law and substantial reason. The latter requires us to determine whether the board's "findings of fact logically lead to its conclusions of law." Goin v. Employment Dept., 203 Or.App. 758, 763, 126 P.3d 734 (2006).
Because, as we explain below, we reject complainant's challenges to the board's factual findings, we state the facts consistently with the board's Final Order on Second Reconsideration (final order).
In April 2007, complainant was negotiating with Schlottman (seller) to purchase seller's house. Licensed residential inspector McLean inspected the house and wrote a report noting, in part:
"#5: Windows - Water Intrusion - Sills of windows in S.E. bedroom show swelling; sills of windows in den below this room also show swelling and one window shows water damaged paint on its die casing - Indications of water intrusion, possible rot damage, mold etc., in walls. Consult qualified specialty contractor to evaluate and remediate water intrusion as deemed appropriate."
Based on that report, complainant and seller entered into a "Buyer's Repair Addendum, " in which the parties agreed that seller would remove the moss on the roof and have a "[l]icensed and bonded contractor * * * identify and correct [the] source of [the] water intrusion per item 5 of inspection and identify and repair/replace and paint all water damaged areas."
Seller contacted respondent to clean the roof and gutters. When respondent's corporate president, Richard Lundstrom, visited the house to check on the work performed, seller requested that he look at two windows on the southeast corner of the house. Seller and seller's real estate agent, Raja, were present when Lundstrom inspected the windows from the interior of the house only. Lundstrom assisted seller in removing the window sills and sheetrock beneath one of the windows, and seller took pictures of the wood underneath the sills.
Lundstrom later wrote a letter to seller, dated April 25, 2007, on respondent's corporate letterhead, but Lundstrom had not seen a copy of either the Buyer's Repair Addendum or the initial inspection report before writing the letter. The letter, written at seller's request, reads:
"On April 25, 2007[, ] I removed the window sills in both the upstairs front bedroom and the main floor front room * * *. Neither window has water damage. The visual surface problem was contained to the * * * window sill and it would be my recommendation to replace the * * * bottom sill of both windows.
"There is absolutely no mold, dry rot[, ] or other damage."
At the request of complainant's realtor, Lundstrom later added the following paragraph to the letter:
"The visual problem with the sheetrock around the front window is of no concern. My recommendation would be to remove, retexture and reapply paint in the area."
Based on those recommendations, seller had the drywall repaired and the window sills replaced.
In May 2007, complainant purchased, and moved into, the house. In October 2007, after a heavy rain, complainant found water leaking into the upstairs window. In December 2007, he discovered water leaks around the downstairs window. Complainant then filed a complaint with the board against respondent, alleging that respondent performed improper and negligent work on his house, pursuant to OAR 812-004-0535(1), and seeking monetary damages. The board dismissed the complaint, concluding that respondent did not perform negligent or improper work. Complainant thereafter requested a hearing.
At the hearing, complainant testified that he had received the April 25, 2007, letter from seller, who had had the window sills replaced and interior carpentry work done based on the recommendations contained in the letter.
Complainant's realtor testified that, because seller's realtor, Raja, had told him that the April 25, 2007, letter satisfied the requirements of the Buyer's Repair Addendum, he believed that Lundstrom had inspected the windows per the terms of the addendum.
Raja stated that she was present when Lundstrom examined the windows and felt that Lundstrom's inspection satisfied the terms of the addendum. She also believed that seller had hired respondent, a licensed and bonded contractor, ...