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Shell v. Schollander Cos., Inc.

Court of Appeals of Oregon

September 24, 2014

MELISSA SHELL, an individual, Plaintiff-Appellant,
v.
THE SCHOLLANDER COMPANIES, INC., dba Schollander Development Company, Defendant-Respondent. THE SCHOLLANDER COMPANIES, INC., dba Schollander Development Company, an Oregon corporation, Third Party Plaintiff,
v.
KUSTOM BUILT CONSTRUCTION, LLC, an Oregon limited liability company; HL STUCCO SYSTEMS, INC., an Oregon corporation; NEWSIDE, INC., an Oregon corporation; WESTURN CEDAR, INC., an Oregon corporation; and J & R GUTTER SERVICES, INC., an Oregon corporation, Third Party Defendants

Argued and Submitted September 18, 2013

Washington County Circuit Court C106480CV. Donald R. Letourneau, Judge.

Christopher C. Grady argued the cause for appellant. With him on the briefs were Kevin A. Eike and Aldrich Eike, P.C.

Paul E. Sheely argued the cause for respondent. With him on the brief was Stephen E. Archer.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 570

[265 Or.App. 626] SCHUMAN, S. J.

This is a construction defect case brought by a homeowner alleging that water intrusion damage resulted from the negligence of defendant, the general contractor who built the house and from whom plaintiff bought it. The trial court granted defendant's motion for summary judgment on the ground that plaintiff did not initiate this action within the 10-year statute of repose required by ORS 12.115, which begins to run from the time of " the act or omissions complained of." On appeal, plaintiff argues that the court erred in applying that statute; the correct statute, she maintains, is ORS 12.135, which begins to run at the time of " substantial completion," which, she maintains, occurred later than " the act or omission complained of." In the alternative, she argues that, even if ORS 12.115 is the applicable statute of repose, the court erred in granting summary judgment to defendant, because there are disputed issues of material fact regarding when, exactly, the " acts or omissions complained of" occurred. We affirm.

We will affirm the trial court's ruling granting defendant's motion for summary judgment if there is no genuine issue of material fact and defendant was entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based on the record before the court viewed in a manner most favorable to the nonmoving party, here plaintiff, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. Id.; See Jones v. General Motors Corporation, 325 Or. 404, 408, 939 P.2d 608 (1997). If there is no issue of material fact in dispute, we review the trial court's ruling for errors of law. Oregon Southwest, LLC v. Kvaternik, 214 Or.App. 404, 413, 164 P.3d 1226 (2007), rev den, 344 Or. 390, 181 P.3d 769 (2008).

Here, the relevant facts are undisputed (although, as we explain below, the parties disagree about the characterization of those facts and their legal significance). In 1999, defendant began constructing a house on property it owned in Washington County. At that time, defendant intended to sell the house but had not identified a prospective purchaser of the house and property. However, in May [265 Or.App. 627] 2000, before defendant finished the house, plaintiff decided to buy it. Before the end of that month, the parties signed a document captioned " Real Estate Sale Agreement," including several " addenda" requiring defendant to replace some already-installed floor coverings (tile and carpet) with ones chosen by plaintiff, to install certain closet doors, to plumb a utility room to accommodate a gas dryer, to conduct a " walk-thru" inspection, and to " remedy deficiencies prior to closing." On June 22, 2000, defendant recorded a Notice of Completion, and the county issued a Certificate of Occupancy seven days later. By that time, the outside shell of the house--that is, the portion of the house that plaintiff alleges was negligently constructed--was substantially completed. Defendant conducted the " walk-through" on July 5, 2000, and two days later, on July 7, agreed to make some minor repairs to the house's stucco. The purchase closed on July 12, 2000. Plaintiff served a Notice of Defect on defendant, pursuant to ORS 701.565, on June 25, 2010.

The dispute centers on which statute of repose applies to these facts. Plaintiff argues in favor of ORS 12.135:

" (1) An action against a person by a plaintiff who is not a public body, whether in contract, tort or otherwise, arising from the person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof * * * must be commenced before * * *:
" * * * *
" (b) Ten years after substantial completion or abandonment of the construction, alteration or repair of a ...

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