Cedartech, Inc. v. Strader

428 P.3d 961, 293 Or. App. 252
CourtCourt of Appeals of Oregon
DecidedAugust 8, 2018
DocketA163975
StatusPublished
Cited by9 cases

This text of 428 P.3d 961 (Cedartech, Inc. v. Strader) 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
Cedartech, Inc. v. Strader, 428 P.3d 961, 293 Or. App. 252 (Or. Ct. App. 2018).

Opinion

DeVORE, J.

*253This 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 *964"Shingle steep pitch ridge cap
"2-3 rc on cottage
"Cottage included!"

*254The 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 work-manlike 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 the trial court, on its own motion, entered an order removing the matter from arbitration.

The case proceeded to a bench trial. The parties agreed that they had entered into a contract for Cedartech to provide maintenance services to defendant and that defendant had agreed to pay "upon completion." The parties *255also agreed that Cedartech had provided maintenance services and that defendant had not paid for those services. Defendant contended that she was relieved of her payment obligation because Cedartech first breached their contract by failing to complete the project and by failing to provide services that met industry standards.

In a letter opinion, the trial court concluded that a "preponderance of the evidence proved that Cedartech completed the material terms of the parties' written contract." The court specifically found that defendant "prevented Cedartech from returning to resolve any of her concerns" and that she "refused to pay as agreed because Cedartech did not satisfactorily repair the roof leaks." However, the court continued, "satisfactory leak repair was not a term of the parties' explicit written agreement." The court explained that the parties had entered into a written contract to check for leaks, among other things, and a separate oral contract to repair the leaks for $800. The trial court rejected defendant's argument that there was one contract that was supplemented by an oral agreement to repair two leaks to her satisfaction. The court determined that defendant "did not meet her burden of proof on the theory that the written contract was expanded." The court concluded that the billed sum of $7,045 for Cedartech's services was reasonable and awarded that amount for its claim for breach of contract.

The trial court rejected most of defendant's counterclaim for setoff, which had sought $18,000. The court concluded that a "preponderance of the evidence proved that Cedartech did complete the parties' written contract" and that any water damage that may have occurred from the roof leaks was not directly attributable to Cedartech. The court found that Cedartech attempted to repair the leaks but "was blocked from entry to the house to determine the precise location and nature of the leaks." Even so, the court found that Cedartech failed to fix the leaks *965and had added charges for shingles used in the attempt. The court also found that Cedartech inadvertently damaged an electrical cord with a nail, but that the timing and extent of any consequential damage related to that accident was too speculative to support a full award of all the costs to repair that defendant claimed. The court awarded defendant a setoff of *256$800 for the attempted leak repair and $400 for the accidental damage to the electrical wire.1

The trial court entered a general judgment awarding Cedartech $7,045 on its breach of contract claim while allowing defendant a setoff in the amount of $1,200. The court also entered a supplemental judgment denying Cedartech an award of attorney fees or recovery of an arbitrator's fee. The court awarded Cedartech other costs in the amount of $518.85.

Defendant appeals from the general judgment, raising four assignments of error. Cedartech cross-appeals from the supplemental judgment, raising three assignments of error. We address each assignment in turn.

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Cite This Page — Counsel Stack

Bluebook (online)
428 P.3d 961, 293 Or. App. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cedartech-inc-v-strader-orctapp-2018.