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Sunset Presbyterian Church v. Brockamp & Jaeger, Inc.

Supreme Court of Oregon, En Banc

April 24, 2014

SUNSET PRESBYTERIAN CHURCH, an Oregon non-profit corporation, Respondent on Review,
v.
BROCKAMP & JAEGER, INC., an Oregon non-profit corporation, Petitioner on Review, and ANDERSON ROOFING, CO., an Oregon corporation; SHUPE ROOFING, INC., fka Epuhs, Inc., and/or Dial One Shupe Roofing, an Oregon corporation; POSITIVE CONSTRUCTION, INC., an inactive Oregon corporation; WOODBURN MASONRY, an Oregon corporation; SHARP & ASSOCIATES, INC., an Oregon corporation; and PORTLAND SHEET METAL WORKS, INC., an Oregon corporation, Defendants-Respondents, and DIVERS WINDOW & DOOR, INC., an inactive Oregon corporation, et al; and THE HARVER COMPANY, an Oregon corporation, Defendants. SUNSET PRESBYTERIAN CHURCH, an Oregon non-profit corporation, Respondent on Review,
v.
BROCKAMP & JAEGER, INC., an Oregon corporation; SHUPE ROOFING, INC., fka Epuhs, Inc., and/or Dial One Shupe Roofing, an Oregon corporation; POSITIVE CONSTRUCTION, INC., an inactive Oregon corporation; WOODBURN MASONRY, an Oregon corporation; SHARP & ASSOCIATES, INC., an Oregon corporation; and PORTLAND SHEET METAL WORKS, INC., an Oregon corporation, Defendants-Respondents, and ANDERSON ROOFING, CO., an Oregon corporation, Petitioner on Review, and DIVERS WINDOW & DOOR, INC., an inactive Oregon corporation, et al; and THE HARVER COMPANY, an Oregon corporation, Defendants

Argued and Submitted January 13, 2014.

CC C091601CV; CA A146006. On review from the Court of Appeals.[*]

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

Anne Cohen, Smith Freed & Eberhard P.C., Portland, argued the cause and filed the briefs for petitioner on review Brockamp & Jaeger, Inc. With her on the brief was Bruce R. Gilbert.

Michael T. Stone, Brisbee & Stockton, LLC, Hillsboro, argued the cause for petitioner on review Anderson Roofing Co., Inc.

Daniel T. Goldstein, Ball Janik, LLP, Portland, argued the cause and filed the briefs for respondent on review.

Michael J. Vial, Vial Fotheringham, LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

OPINION

Page 731

[355 Or. 289] WALTERS, J.

In this construction defect case, we interpret the meaning of the contractual term " date of substantial completion" and the statutory term " substantial completion" to decide whether defendants were entitled to summary judgment on the basis that plaintiff's tort claims were barred either by the statute of limitations or by the statute of ultimate repose. We conclude that defendants were not entitled to summary judgment, affirm the decision of the Court of Appeals, reverse the decision of the trial court, and remand to the trial court for further proceedings.

We take the following uncontested facts from the record on summary judgment. Plaintiff Sunset Presbyterian Church contracted with defendant Brockamp & Jaeger to act as its general contractor and build a new church facility. Plaintiff and defendant executed a standard form contract provided by the American Institute of Architects (AIA). Defendant then subcontracted with Anderson Roofing Company (defendant subcontractor) and other subcontractors to perform various specialized construction tasks.[1] Plaintiff did not enter into a contractual relationship with any of the subcontractors.

Construction began in 1998. On February 14, 1999, plaintiff held its first services in the church, and on March 14, 1999, held a dedication ceremony. In May 1999, defendant general contractor issued plaintiff a warranty that extended for one year from February 7, 1999, a date that defendant identified as the " substantial completion date." The county issued a certificate of final occupancy on May 28, 1999, but additional work continued during the summer of 1999, and it was not until

Page 732

November 19, 1999, that the architect issued approval for final ...


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