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Mcdowell Welding & Pipefitting, Inc. v. United States Gypsum Co.

Court of Appeals of Oregon

January 23, 2014

McDOWELL WELDING & PIPEFITTING, INC., an Oregon corporation, Plaintiff-Appellant Cross-Respondent,
v.
UNITED STATES GYPSUM COMPANY, a Delaware corporation; and BE & K CONSTRUCTION CO., INC., an Alabama corporation, Defendants-Respondents Cross-Appellants, and PORT OF ST. HELENS, an Oregon municipal corporation, Defendant-Respondent, and ED COMPANY, dba Electrical Construction Co., Defendant

Argued and Submitted: January 4, 2013.

Page 580

Columbia County Circuit Court. 012126. Ted E. Grove, Judge.

Bruce H. Cahn argued the cause for appellant-cross-respondent. With him on the briefs were Aaron D. Goldstein and Ball Janik LLP.

Daniel K. Reising argued the cause for respondents-cross-appellants. With him on the briefs was Fucile & Reising LLP.

No appearance for respondent Port of St. Helens.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

Page 581

[260 Or.App. 591] ORTEGA, P. J.

Plaintiff, McDowell Welding & Pipefitting, Inc., appeals a supplemental judgment entered by the trial court following a remand from the Oregon Supreme Court for the trial court to determine the amount of prejudgment interest to which plaintiff was entitled. See McDowell Welding & Pipefitting v. U.S. Gypsum, 345 Or. 272, 290-91, 193 P.3d 9 (2008). On appeal, plaintiff contends that the trial court incorrectly ruled that plaintiff was entitled to only one day of prejudgment interest. Defendants BE & K Construction Co., Inc. (BE & K) and United States Gypsum Company (U.S. Gypsum) cross-appeal, asserting that the trial court erred in (1) awarding plaintiff prejudgment interest at the statutory rate; (2) not conditioning the payment of net settlement proceeds to plaintiff on execution of a settlement release; (3) reducing U.S. Gypsum's attorney fee award; and (4) reducing BE & K's attorney fee award. We reject without discussion defendants' contentions on cross-appeal and, on appeal, reverse and remand.

The general background facts, some of which are set forth in the Supreme Court's decision, are as follows. This case arose out of a construction project in Columbia County. U.S. Gypsum was constructing a new plant and hired BE & K as the general contractor on the project. 345 Or. at 275. " BE & K subcontracted with plaintiff to perform work on the project. During construction, defendants asked plaintiff to perform additional tasks, over and above plaintiff's contractual obligations, and defendants promised to pay plaintiff for doing so." Id. Plaintiff completed its work on the construction project, and a disagreement arose among the parties " over the amount that defendants owed for the additional work that plaintiff had performed." Id.

On February 22, 2001, defendants made an oral offer to settle the parties' dispute for $800,000 and plaintiff accepted that offer. " The parties also agreed that, to the extent that plaintiff owed money to its suppliers, defendants would issue joint checks to plaintiff and its suppliers out of the $800,000 payment." Id. at 287. As part of those discussions, defendants " asked plaintiff to provide them with the suppliers' names and the amount that plaintiff owed each [260 Or.App. 592] supplier so that defendants could prepare the joint checks." Id. One day after the parties reached that agreement, BE & K sent plaintiff a document, dated February 23, 2001, entitled " Modification to Subcontract Agreement" (Modification 29). Modification 29 provides as follows:

" Upon your acceptance hereof, this letter will constitute a Modification of the Subcontract previously entered into, dated August 7, 2000.
" In accordance with the provisions of Article III of the Subcontract Agreement, you are directed to:
" This is a final settlement to [plaintiff] on both contracts at the U.S. Gypsum plant site in Rainier, Oregon S0063 and S0075. S0063 covers the Auxiliary Package and S0075 covers the Pipe and Instrumentation Installation. This is a one time final settlement.
" Increase ...

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