JOHN HYLAND CONST., INC., an Oregon corporation, Plaintiff-Appellant,
WILLIAMSEN & BLEID, INC., an Oregon corporation, Defendant-Respondent.
and submitted October 13, 2015
County Circuit Court 161304401; Josephine H. Mooney, Judge.
Randolph Turnbow argued the cause and fled the briefs for
W. Kelly argued the cause and fled the brief for respondent.
Tookey, Presiding Judge, and Hadlock, Chief Judge, and
Aoyagi, Judge. [*]
Summary: Plaintiff appeals a judgment in defendant's
favor on plaintiff's claim for breach of contract and
defendant's counterclaim for breach of contract,
purporting to raise four assignments of error. Held:
Because plaintiff did not identify any ruling of the trial
court that it sought to have reversed, or demonstrate that
the legal theories underlying its assignments of error were
ever cohesively presented to the trial court for decision, as
required by ORAP 5.45, there was no issue for the Court of
Appeals to resolve on the merits.
Or.App. 467] HADLOCK, C. J.
case involves a dispute between a general contractor
(plaintiff) and a subcontractor (defendant) on a construction
project for Lane Community College (LCC). Plaintiff filed an
action claiming that defendant breached the contract between
the parties (the subcontract) by not performing or completing
certain specified work in accordance with the
subcontract's requirements. In response, defendant
counterclaimed that plaintiff breached the subcontract by
failing to pay defendant the amounts due and owing under it
and by acting in bad faith. After a bench trial, the trial
court found in defendant's favor on both the claim and
counterclaim for breach of contract and entered a judgment
awarding defendant $51, 786 in damages on its counterclaim.
On appeal, plaintiff purports to raise four assignments of
error; however, as explained below, plaintiff does not
identify a ruling of the trial court that it seeks to have
reversed, nor does plaintiff's briefing demonstrate that
the legal theories underlying those assignments were ever
cohesively presented to the trial court for decision, as
required by the Oregon Rules of Appellate Procedure. Because
of those deficits, we do not consider plaintiff's
arguments. See Ailes v. Portland Meadows, Inc., 312
Or. 376, 384, 823 P.2d 956 (1991) (a plaintiff's failure
to either preserve or properly raise an argument on appeal
"normally will preclude its consideration on
appeal"). Accordingly, we affirm.
background purposes, we briefly describe the facts leading up
to this appeal. LCC selected plaintiff to be the general
contractor for a construction project that involved a major
renovation of two buildings and the construction of an
outdoor space (the Building 10/11/Breezeway Renovation). The
contract between LCC and plaintiff was a standard
form contract that provided, among other things, that
LCC's architect had the authority to "reject Work
that does not conform to the Contract Documents, " and
to "interpret and decide matters concerning performance
under, and requirements of, the Contract
Or.App. 468] Plaintiff, in turn, contracted with defendant, a
"paintings and coatings specialty subcontractor, "
to do the painting and coating work on the LCC project. That
subcontract included a requirement that "[defendant]
assume toward [plaintiff] all obligations and
responsibilities that [plaintiff] assumes toward [LCC] under
the Contract Documents, to the extent those obligations and
responsibilities apply to the Work." It also provided
that plaintiff was not obligated to make final payment to
defendant until (1) the work was "fully performed"
according to the subcontract and accepted by plaintiff and
LCC; (2) defendant was not in "default" under the
subcontract, and (3) plaintiff has received full payment from
LCC with respect to the work.
began its work in May of 2011, and it progressed smoothly for
several months. At some point during late summer and early
fall, however, the architect circulated several "punch
lists, " identifying work that needed to be corrected or
completed before the architect would certify that the project
was complete and LCC would make final payment to plaintiff.
Defendant performed work on the punch-list items, but
plaintiff and defendant disagreed about whether all of it was
completed, in a satisfactory manner, and whether some items
were within the scope of the subcontract. In addition, around
that time, it was also discovered that defendant had not yet
applied the intumescent coating that the subcontract
required. Defendant began that application in
December, during the school's holiday break, but
plaintiff and the architect became concerned that the coating
was being applied outside of the manufacturer's
recommended range of temperature, and defendant did not
complete it. Plaintiff eventually completed the work
using its own employees and a substitute painting
Or.App. 469] Plaintiff subsequently brought this action
against defendant, alleging that defendant had breached the
subcontract "by failing to perform all of [the] work in
accordance with the requirements of the subcontract" in
several particulars, including, as narrowed on appeal, by
refusing to remove overspray from certain surfaces, failing
to paint certain ducts and conduits, failing to properly
prepare and seal masonry surfaces, and failing to properly
prepare and apply intumescent coatings and "refusing to
complete" that work. As a result, plaintiff alleged, it
was entitled to damages of $57, 365.74 for the cost of
repairing and completing defendant's work, less
"application of all appropriate credits."
response, defendant counterclaimed for breach of contract
against plaintiff, alleging that plaintiff breached the
parties' subcontract by failing to pay progress payments
owed to defendant when they were due, failing to pay the
total amount due under the subcontract and change orders, and
acting in bad faith. Defendant sought $51, 655 in damages for
parties waived jury and tried their case to the court,
telling the court that it was "a punch list case."
After five days of trial, which included a visit to the work
site, the court ruled in defendant's favor on both the
claim and counterclaim. Announcing its decision from the
bench, the court first concluded that plaintiff had failed to
prove that defendant breached the subcontract in any of the
particulars alleged by plaintiff. The court stated that it
was relying on its assessment of the credibility of the
parties' respective witnesses; the court explained that
it found plaintiff's witnesses to be generally not
credible and, on the other hand, that it believed
defendant's witnesses' testimony regarding the work
that defendant had done. Thus, the court apparently
considered the dispute to depend on resolution of a [287
Or.App. 470] factual matter-specifically, did defendant fail
to complete the work of the subcontract in the manner alleged
by plaintiff's complaint? The court's answer to that
question apparently turned, at least in part, on a finding
that the evidence that defendant put on about its performance
under the contract was more credible than the evidence that
plaintiff put on about defendant's lack of performance.
The court also concluded that plaintiff had not proved
the court concluded that defendant had proved its
counterclaim for breach of the subcontract by plaintiff,
finding that "plaintiff did in fact fail to pay payments
that were due and owing to the defendant for work covered by
the contract itself." It declined, however, to find that
defendant was entitled to payment for "extra
work"-that is work outside the scope of the
contract-that defendant had also claimed.
court subsequently entered judgment in defendant's favor
on plaintiff's claim for breach of contract and on
defendant's counterclaim for breach of contract, and it
awarded defendant damages of $51, 786 on its counterclaim.
Plaintiff appeals that judgment.
turning to plaintiff's specific arguments, we review the
prerequisites for obtaining appellate review of an asserted
trial-court error. We do so because, as explained below,
those prerequisites have not been met in this case.
Moreover-and most importantly-the deficiencies (in preserving
claims of error and in identifying purportedly erroneous
rulings on appeal) are such that no issue is properly before
us for resolution on the merits.
party appealing a trial court's judgment, the first
challenge-and requirement-is to "identify" in each
assignment of error "precisely the legal, procedural,
factual, or other ruling that is being challenged." ORAP
5.45(3). In [287 Or.App. 471] addition to identifying a
specific ruling that is challenged, each assignment of error
must "specify the stage in the proceedings when the
question or issue presented by the assignment of error was
raised in the lower court, the method or manner of raising
it, and the way in which it was resolved or passed on by the
lower court, " ORAP ...