and submitted March 22, 2018
Clackamas County Circuit Court LV15060155; Susie L. Norby,
W. Kelly argued the cause and fled the briefs for
P. Krages II argued the cause and fled the briefs for
Lagesen, Presiding Judge, and DeVore, Judge, and Garrett,
appeal, general judgment affirmed. On cross-appeal,
supplemental judgment reversed and remanded as to attorney
fees; otherwise affirmed.
Summary: Defendant, a homeowner, appeals from a general
judgment awarding a contractor, Cedartech, Inc., $7, 045 on
its contract claim for non-payment, less a setoff for
defendant of $1, 200. Defendant raises four assignments of
error relating to Cedartech's claim, defendant's
setoff, and an evidentiary ruling. Cedartech cross-appeals
from a supplemental judgment that denied an award of attorney
fees and denied an arbitrator's fee as an item of costs.
Held: On appeal, the trial court did not err.
Sufficient evidence supported its conclusion that Cedartech
substantially performed the contract and that defendant
prevented completion of roof repairs. A larger setoff was not
required as a matter of law. Regarding the court's
refusal to admit video evidence, defendant failed to make the
offer of proof necessary to preserve any error. On
cross-appeal, the court erred. Because the parties'
contract provided that a prevailing party "shall
be" entitled to recover attorney fees, the trial court
lacked discretion to deny attorney fees entirely to
Or. 253] DeVORE, J.
appeal arises from a conflict between a homeowner and a
contractor regarding a roof project. Defendant, the
homeowner, appeals from a general judgment awarding the
contractor, Cedartech, Inc., $7, 045 on its contract claim
for nonpayment, less a setoff for defendant of $1, 200.
Defendant raises four assignments of error relating to
plaintiff's claim, defendant's setoff, and an
evidentiary ruling. Cedartech cross-appeals from a
supplemental judgment that denied an award of attorney fees
and denied an arbitrator's fee as an item of costs. We
affirm the general judgment. We reverse and remand the
supplemental judgment as to attorney fees but affirm as to
introductory facts are undisputed. We recount disputed facts
later when discussing the assignments of error. Defendant
owns a historic home that has a cedar shingle roof. Defendant
contacted Cedartech to have the roof cleaned and to check two
spots for leaks. On October 6, 2014, the parties entered into
a written contract. Using checked boxes in a left column, the
contract provided that Cedartech will
"Clean roof of debris, leaves and needles, prior to
"Apply Cedarsilver to entire roof area.
"Other," a handwritten note adds, "Has leaks
in (2) spots [check] to see if something obvious!" In a
right column, other handwritten notes add:
"Clean flat roofs (metal)
"May need additional repairs after cleaning
"Some ladder work
"Shingle steep pitch ridge cap
"2-3 re on cottage "Cottage included!"
Or. 254] The contract concluded with a provision that, in the
event of suit or action, the prevailing party shall be
entitled to recover its reasonable attorney fees.
October 29, 2014, Cedartech began work and returned on six
other days to work. Midway through the project, the parties
agreed in a conversation that Cedartech would install two
bundles of shingles at a cost of $800 in an effort to repair
the two leaks. On December 2, 2014, Cedartech installed the
shingles and sent an invoice to defendant with charges of $3,
445 for roof cleaning and treatment, $2, 800 for other labor,
and $800 for the leak repairs.
parties were displeased with each other's performance.
Defendant asserted that Cedartech's work was flawed and
that she would not pay the bill. After several unsuccessful
requests for payment, Cedartech sued defendant for breach of
contract for nonpayment and sought attorney fees. Among other
things, Cedartech alleged that it completed the agreed roof
work and that defendant had failed to pay $7, 045. Defendant
responded, and, with several affirmative defenses, alleged
that Cedartech materially breached the contract by, among
other things, failing to repair the leaks and failing to
perform work in a workmanlike manner. Defendant also pleaded
setoff and a claim of negligence. She asserted that, as a
result of Cedartech's breaches, Cedartech had no right to
recover and that she was entitled to a setoff of $18, 000 for
substitute performance costs that she incurred to repair
damage caused by Cedartech's breaches.
case proceeded in court-annexed arbitration. The arbitrator
concluded that defendant owed Cedartech $6, 645, but the
arbitrator awaited filing the award with the court until the
parties submitted a cost bill and attorney fee petition. The
court's arbitration deadline passed without entry of an
arbitrator's award, and ...