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Bethlehem Construction, Inc. v. Portland General Electric Co.

Court of Appeals of Oregon

June 26, 2019

BETHLEHEM CONSTRUCTION, INC., a Washington corporation, Plaintiff-Respondent,
v.
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, Defendant-Appellant, and LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants.

          Argued and submitted February 5, 2018

          Morrow County Circuit Court 16CV089; Eva J. Temple, Judge.

          Edwin C. Perry argued the cause for appellant. Also on the brief were Scott G. Seidman and Tonkon Torp LLP. With them on the reply brief was Megan K. Houlihan.

          Richard T. Wetmore argued the cause for respondent. Also on the brief was Dunn & Black, P.S.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [298 Or.App. 349] Case Summary:

         In this case involving a construction lien, Portland General Electric Company (PGE) appeals from a limited judgment in favor of Bethlehem Construction, Inc., which the trial court entered after granting summary judgment for Bethlehem on its lien foreclosure claim. PGE contends that the trial court erred in granting summary judgment to Bethlehem and denying it to PGE because the lien was not timely fled. Held: The December work was performed under the same contract as the April work, and it was not trivial. Consequently, Bethlehem recorded its lien within 75 days of the time when it ceased to "provide labor, rent equipment or furnish materials." ORS 87.035(1).

         Affirmed.

         [298 Or.App. 350] POWERS, J.

         In this case involving a construction lien, Portland General Electric Company (PGE) appeals from a limited judgment in favor of Bethlehem Construction, Inc., which the trial court entered after granting summary judgment for Bethlehem on its lien foreclosure claim.[1] PGE contends that the trial court erred in granting summary judgment to Bethlehem and denying it to PGE because the lien was not recorded within 75 days after Bethlehem "ceased to provide labor, rent equipment or furnish materials," as required by ORS 87.035(1). We conclude that the trial court did not err and, accordingly, affirm.

         The facts are undisputed. PGE contracted with Abeinsa Abener Teyma General Partnership (Abeinsa) for construction of a power plant in Boardman, Oregon, known as the Carty Generating Station. Abeinsa subcontracted with Bethlehem by entering into a purchase order in which Bethlehem agreed to produce and deliver precast concrete panels to be used as part of the generation building. The contract price was $122, 851. Bethlehem produced and delivered the panels, completing the work required by the purchase order in April 2015 and submitting its final billing to Abeinsa.

         In December 2015, Abeinsa contacted Bethlehem by email with a request for additional work. Another contractor had drilled through a prestressed strand in one of the concrete panels, and Abeinsa requested an engineering opinion on whether the damage compromised the panel's ability to bear the necessary load. The parties agreed to a change order to the original contract; the cost for the additional work was $578.13. The next day, December 15, 2015, Bethlehem provided the engineering opinion.

         PGE terminated its contract with Abeinsa on December 18, 2015. On January 11, 2016, Bethlehem recorded its lien, which covers both the original contract for the fabrication of the concrete panels and the change order for the [298 Or.App. 351] engineering analysis. Abeinsa did not pay Bethlehem the final payment due under the original contract or the amount due under the change order.

         In February 2016, PGE, now acting as its own general contractor, contacted Bethlehem for an engineering opinion about a design change affecting the concrete panels. PGE and Bethlehem agreed to a second change order, Bethlehem provided the engineering ...


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