Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Troutdale v. Palace Construction Corp.

Court of Appeals of Oregon

September 6, 2018

CITY OF TROUTDALE, a municipal corporation of the State of Oregon within Multnomah County, Plaintiff-Appellant,
v.
PALACE CONSTRUCTION CORPORATION, an Oregon corporation and Insurance Company of the West, a California corporation, Defendants-Respondents.

          Argued and submitted August 29, 2017

          Multnomah County Circuit Court 15CV04914 Henry C. Breithaupt, Judge pro tempore.

          Donald H. Grim argued the cause for appellant. On the brief were Ridgway K. Foley, Jr., Charles R. Markley, and Greene & Markley, P.C. On the reply brief were Steven F. Cade, Ridgway K. Foley, Jr., Charles R. Markley, and Williams Kastner Greene & Markley.

          Lawrence A. Wagner argued the cause for respondent Insurance Company of the West. Also on the brief were Mario R. Nicholas, and Stewart Sokol & Larkin LLC.

          No appearance for respondent Palace Construction Corporation.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Plaintiff, the City of Troutdale, appeals the trial court's judgment in favor of defendant Insurance Company of the West (ICW) in this action to enforce a bond contract. The City and ICW each moved for summary judgment based on its own interpretation of the contract. ICW also moved for summary judgment based on several of ICW's affirmative defenses. The trial court granted

         [293 Or.App. 786] ICW's motions and denied the City's motion. On appeal, the City assigns error to both rulings and, in its opening brief, argues that the court erred in its interpretation of the contract. The City does not address ICW's affirmative defenses in its opening brief. Held: Because the trial court granted summary judgment to ICW on multiple grounds, and because the City did not challenge all of those grounds in its opening brief, the judgment must be affirmed.

         [293 Or.App. 787] AOYAGI, J.

         This is an action on a performance bond. In 2007, in connection with a proposed subdivision development, defendant Insurance Company of the West (ICW) entered into a bond contract with Palace Construction Corporation (Palace). Essentially, ICW guaranteed Palace's completion of any public improvements to which Palace and the City of Troutdale had agreed, up to the bond amount. Palace never began construction, and the real property was eventually sold. The city then brought this action against ICW to enforce the bond. ICW responded with numerous arguments and affirmative defenses, including that Palace starting construction was a condition of the bond. On cross-motions for summary judgment, the trial court granted summary judgment in favor of ICW, denied summary judgment to the city, and entered a judgment for ICW. The city appeals. We affirm.

         Because we affirm the judgment on procedural grounds, as explained below, it is unnecessary to describe the facts underlying the parties' dispute in great detail. The undisputed basic facts are as follows. In 2007, Palace submitted a land use application to the city. Palace proposed to subdivide certain real property into 41 lots, to be known as "Howard Estates," and to build a townhouse on each lot. The city's planning commission approved the application with conditions. Consistent with one of those conditions, Palace obtained a performance bond from ICW in 2007. The bond obligates ICW to the city in the amount of $483, 928.50, unless Palace performs its "agreement or agreements" with the city to "complete the improvements specified in said agreement or agreements." The city and ICW disagree about the nature of the referenced "agreement or agreements" and about the exact conditions that trigger the bond.

         Palace never started construction. In 2008, Palace put the Howard Estates project on "indefinite hold," then obtained a series of extensions from the city, the last of which expired in 2012. In 2013, one of Palace's lenders repossessed the real property, and an individual named Rystadt bought it at auction. The city granted Rystadt power of attorney to collect on the ICW bond, and, acting as the city's agent, he [293 Or.App. 788] filed this contract action against ICW.[1] ICW subsequently moved for summary judgment based on its interpretation of the bond contract, the city cross-moved for summary judgment based on its own interpretation of the bond contract, and ICW filed a second motion for summary judgment based on six affirmative defenses that it had raised in its answer. After hearing, the trial court granted both of ICW's motions and denied the city's motion. The court dismissed the city's claims with prejudice and declared, among other things, that the bond was of no further force and effect and that the city has no right to collect on it or enforce it against ICW.

         The city appeals, assigning error both to the trial court's denial of the city's motion for summary judgment and to the trial court's grant of summary judgment in favor of ICW. In doing so, however, the city does not challenge all of the bases on which the trial court granted summary judgment to ICW. When the trial court grants summary judgment to a party on multiple alternative grounds, the nonmoving party generally must challenge all of those grounds successfully on appeal in order to obtain reversal. State v. Stoudamire, 198 Or.App. 399, 403, 108 P.3d 615 (2005) ("It is axiomatic that, when a trial court bases a decision on multiple grounds, an appellant may prevail on appeal only after demonstrating that all of the bases for the court's decision were erroneous." (Emphasis in original.)). We "must affirm" when appellants "fail to challenge the alternative basis of the trial court's ruling." Roop v. Parker Northwest Paving Co., 194 Or.App. 219, 236, 94 P.3d 885 (2004), rev den, 338 Or. 374 (2005).

         Here, ICW moved for summary judgment on multiple grounds. In addition to the contract interpretation arguments advanced in its first motion for summary judgment, ICW argued in its second motion for summary judgment that it was entitled to judgment as a matter of law on six affirmative defenses. The trial court expressly granted that motion in its written order. The court listed all of the pending motions in the order, including ICWs motion for summary judgment against the city, dated October 30, 2015, [293 Or.App. 789] which the court identified as "ICW's Motion for Summary Judgment," and ICW's second motion for summary judgment "on six additional affirmative defenses," dated January 22, 2016, which the court identified as "ICW's Second Motion for Summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.