CITY OF TROUTDALE, a municipal corporation of the State of Oregon within Multnomah County, Plaintiff-Appellant,
PALACE CONSTRUCTION CORPORATION, an Oregon corporation and Insurance Company of the West, a California corporation, Defendants-Respondents.
and submitted August 29, 2017
Multnomah County Circuit Court 15CV04914 Henry C. Breithaupt,
Judge pro tempore.
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.
appearance for respondent Palace Construction Corporation.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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
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.
Or.App. 787] AOYAGI, J.
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 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.
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. 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.
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).
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 ...