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Cedartech, Inc. v. Strader

Court of Appeals of Oregon

August 8, 2018

CEDARTECH, INC., Plaintiff-Respondent Cross-Appellant,
v.
Kathy STRADER, Defendant-Appellant Cross-Respondent.

          Argued and submitted March 22, 2018

          Clackamas County Circuit Court LV15060155; Susie L. Norby, Judge.

          George W. Kelly argued the cause and fled the briefs for appellant-cross-respondent.

          Bert P. Krages II argued the cause and fled the briefs for respondent-cross-appellant.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         On appeal, general judgment affirmed. On cross-appeal, supplemental judgment reversed and remanded as to attorney fees; otherwise affirmed.

         Case 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 Cedartech.

         [293 Or. 253] DeVORE, J.

         This 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 costs.

         I. FACTS

         The 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 spraying.
"Apply Cedarsilver to entire roof area.
"Clean gutters.
"Clean skylights.
"Other."

         Alongside "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!"

         [293 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.

         On 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.

         The 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.

         The 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 ...


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