Brown v. Ruhl

717 P.2d 162, 78 Or. App. 333
CourtCourt of Appeals of Oregon
DecidedApril 9, 1986
Docket28777; CA A33407
StatusPublished
Cited by1 cases

This text of 717 P.2d 162 (Brown v. Ruhl) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Ruhl, 717 P.2d 162, 78 Or. App. 333 (Or. Ct. App. 1986).

Opinion

RICHARDSON, P. J.

Defendant McKenzie appeals from a decree foreclosing plaintiffs’ construction lien. We reverse.

Plaintiffs operate a rental equipment company. In April and May, 1983, they rented equipment to defendant Ruhl, who had contracted with McKenzie to paint McKenzie’s barn. Ruhl did not pay plaintiffs. On July 7,1983, they filed a lien on McKenzie’s barn under ORS 87.010 and subsequently brought this action to foreclose the lien. McKenzie appeals the decree of foreclosure. Ruhl did not appeal the default judgment entered against him.

McKenzie argues that plaintiffs were required under ORS 87.021(1) to provide him with the notice of their right to claim a lien and that, because they failed to do so, their lien is unenforceable under ORS 87.021(3). Plaintiffs respond that, under ORS 87.021(4), they were excused from the statutory notice requirement, because they provided rental equipment for a commercial improvement. They concede that they did not perform labor or provide labor and materials, as ORS 87.021(4) required at the time, but they argue that the legislature intended that persons who provide rental equipment for the construction of commercial improvements also be excluded from the notice requirement.

The construction lien statutes in effect at the time in question provided, as pertinent:1

ORS 87.010(1):

“Any person performing labor upon, transporting or furnishing any material to be used in, or renting equipment used in the construction of any improvement shall have a lien upon [336]*336the improvement for the labor, transportation or material furnished or equipment rented at the instance of the owner of the improvement or his construction agent.”

ORS 87.021:

“(1) Except when material or labor described in ORS 87.010(1) to (3), (5) and (6) is furnished at the request of the owner, a person furnishing any materials or labor described in ORS 87.010(1) to (3), (5) and (6) for which a lien may be claimed under ORS 87.010 shall give a notice of the right to lien to the owner of the site. The notice of the right to lien may be given at any time during the progress of the improvement, but the notice only protects the right to claim a lien on those materials and that labor provided after a date which is 10 days before the notice is delivered or mailed. * * *
“(2) The notice required by subsection (1) of this section shall be substantially in the form set forth in ORS 87.023.
“(3) A lien claimed under ORS 87.010(1) to (3), (5) or (6) shall not be enforced unless the notice required by subsection (1) of this section is given.
“(4) A person who performs labor upon a commercial improvement or provides labor and material for a commercial improvement need not give the notice required by subsection (1) of this section in order to acquire a lien under ORS 87.010. As used in this subsection:
“(a) ‘Commercial improvement’ means any structure or building not used or intended to be used as a residential building, or other improvements to a site on which such a structure or building is to be located.
“(b) ‘Residential building’ means a building or structure that is or will be occupied by the owner as the owner’s primary residence and that contains not more than four units capable of being used as residences or homes by persons maintaining households therein.”

Assuming that McKenzie’s barn was a “commercial improvement” under ORS 87.021(4)(a),2 we nevertheless hold that plaintiffs were required to provide notice of their right to claim a lien. Our primary duty in construing a statute is to [337]*337discern the legislature’s intent. ORS 174.020;3 Whipple v. Howser, 291 Or 475, 479, 632 P2d 782 (1981). The strongest evidence of the legislature’s intent is the language of the statute. Whipple v. Howser, supra. The wording of the pertinent parts of the lien statute is ambiguous, and the provisions are somewhat inconsistent. As noted, ORS 87.021(1) requires a notice of the right to lien by a person furnishing any “materials or labor described in ORS 87.010(1) to (3), (5) and (6) for which a lien may be claimed under ORS 87.010.” The threshold question is whether the terms “materials and labor described in ORS 87.010(1) to (3), (5) and (6)” include rental equipment thereby requiring a notice before a lien can be enforced. Plaintiffs argue that the terms do not include rental equipment and that a notice is required only if a person provides materials and labor. In the alternative, they argue that if “materials and labor” includes rental equipment, then they are exempted from giving a notice by ORS 87.021(4).

It is a basic principle of statutory construction that every word of a statute is to be given meaning, if possible. Tracy v. Employment Division, 29 Or App 851, 565 P2d 403 (1977). If the terms “material or labor described in ORS 87.010(1) to (3), (5) and (6)” are construed not to include rental equipment, the reference to “material or labor described in ORS 87.010

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Related

Alley v. Erbach
747 P.2d 360 (Court of Appeals of Oregon, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
717 P.2d 162, 78 Or. App. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-ruhl-orctapp-1986.