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Chalmers v. Concrete Bob, Inc.

Court of Appeals of Oregon

September 17, 2014

DEBORAH CHALMERS, Plaintiff-Appellant,
v.
CONCRETE BOB, INC., Defendant-Respondent

 Submitted May 15, 2014

 Lane County Circuit Court, 121112429. Valeri L. Love, Judge.

James C. Chaney filed the brief for appellant.

No appearance for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Schuman, Senior Judge.

OPINION

[265 Or.App. 552] TOOKEY, J.

Plaintiff homeowner appeals a general judgment in favor of defendant construction contractor following a bench trial on plaintiff's claim for breach of a contract to lay a concrete foundation for a garage and perform other concrete work. Plaintiff, who contended at trial that defendant's work was not performed in accordance with the contract or in a workmanlike manner, asserts that the trial court committed legal error in concluding that plaintiff failed to prove specific contractual terms and damages. " We review the interpretation of a contract as a matter of law, but where the trial court's

Page 1289

interpretation depends on factual determinations, we accept those determinations if supported by any competent evidence." Eden Gate, Inc. v. D& L Excavating & Trucking, Inc., 178 Or.App. 610, 617, 37 P.3d 233 (2002) (internal quotation marks omitted). Because we are unable to determine whether the trial court's interpretation of the contract depended on legal or factual determinations, we vacate the judgment on plaintiff's claim for breach of contract and remand for further proceedings.

The parties entered into a contract for defendant to perform concrete work on plaintiff's property, including a concrete foundation for a garage, flatwork, and steps to the existing house. Defendant's bid shows that the work was to be completed for $10,000 and that plaintiff paid defendant $5,000 in advance.

In her complaint, plaintiff averred that defendant's work was not performed in accordance with the contract or in a workmanlike manner. At trial, plaintiff submitted evidence that the construction plans called for a stem wall foundation to be placed five feet from the fence and that defendant had placed a monolithic (single pour) foundation 10 feet from the fence. In addition, plaintiff submitted an inspection report indicating that defendant's work failed to pass inspection, violated certain code provisions, and was deficient in several respects. Finally, plaintiff's expert testified that the total cost to demolish, haul, and repour the concrete was $22,500, and plaintiff submitted a bid to do [265 Or.App. 553] that work for $21,000.[1] However, plaintiff submitted no evidence regarding the cost to repair any particular deficiency.

Defendant filed an answer with counterclaims for breach of contract and unjust enrichment.[2] In its answer, defendant averred that it had performed the work in accordance with the contract and to plaintiff's specifications, specifically stating that the garage foundation " was placed in the location where Plaintiff wanted it and told [defendant's representative] to place it." At trial, defendant's representative testified that plaintiff called him to ask if he could get the bid lower than $12,000, that he had suggested a monolithic pour, and that plaintiff had accepted his bid as a monolithic pour. He did not agree that the foundation was supposed to be five feet from the property line; he testified that the set of plans that he received did not have the measurements on it. Defendant's representative also refuted certain aspects of the inspection report and testified that he was prevented from fixing some of the problems that were brought to his attention. Defendant submitted no evidence as to damages.

In a written opinion and order, the trial court ruled as follows:

" The Court finds that there was a contract between the Parties to have concrete work performed for Plaintiff by Defendant for a sum of $10,000. That work included concrete work for a garage foundation, flatwork and steps to the house. Beyond those facts, both Plaintiff and Defendant failed to establish any other specific terms of the contract by a preponderance of the evidence. In particular, the parties failed to establish that there was an agreement between the parties regarding a specific location for the foundation [265 Or.App. 554] or an agreement regarding the type of pour and foundation (stem wall and footing or slab on grade single pour). The evidence did establish that Defendant failed to perform certain work in a workmanlike manner, thus breaching ...

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