Peplinski v. Construction Contractors Board

52 P.3d 1129, 183 Or. App. 419, 2002 Ore. App. LEXIS 1371
CourtCourt of Appeals of Oregon
DecidedAugust 28, 2002
Docket76433-105; A111218
StatusPublished

This text of 52 P.3d 1129 (Peplinski v. Construction Contractors Board) 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
Peplinski v. Construction Contractors Board, 52 P.3d 1129, 183 Or. App. 419, 2002 Ore. App. LEXIS 1371 (Or. Ct. App. 2002).

Opinion

LANDAU, J.

Petitioner filed a claim with the Construction Contractors Board (board) against B & G Excavation, Inc. (respondent). The board dismissed the claim, concluding that it had not been timely filed. In the alternative, the board concluded that petitioner had entered into a release that precluded the claim as a matter of law. We conclude that the board erred in dismissing the claim and therefore reverse and remand for reconsideration.

The relevant facts are not in dispute. Petitioner purchased a manufactured home to be placed near her existing residence. On December 11, 1997, she hired respondent to prepare the site. The contract required respondent to excavate and pour footings and install tie-downs, excavate and install a four-inch sewer line from the foundation to an existing on-site sewer line, excavate and install one-inch PVC water pipe from the foundation to existing water lines, and install a soakage trench. Petitioner agreed to pay $5,000 down and $2,050 upon completion of the work.

Respondent worked on the project for approximately two weeks. Among other things, respondent poured the concrete for the foundation and installed pipes for the required water service. In the course of the work, respondent damaged the foundation with its equipment, which precipitated a dispute between the parties.

On January 8, 1998, petitioner wrote respondent and demanded that it complete the work as required. Respondent did not return to work. On January 15, 1998, petitioner sent a second letter to respondent declaring that respondent had breached their agreement and that “you are hereby released from your duties under your contract” and that “you will not be receiving further payment on this contract.” The letter explained that petitioner took that action “due to your breach of the contract and your negligent workmanship.” The letter detailed the costs that petitioner had already incurred or expected to incur to remedy respondent’s defective performance. It declared that she would pay respondent nothing more and that respondent should remove its equipment and refrain from pursuing a lien against her [422]*422property. Respondent removed its equipment from petitioner’s property and did no further work. Petitioner and her husband completed the site preparation and the manufactured home was set at the site on April 1,1998.

On January 25,1999, petitioner, pro se, filed a claim with the board against respondent. The claim alleged, in part:

“1. Contractor crushed foundation
“2. Contractor did not provide plumbing to code
“3. Defective foundation has caused cracked sheet rock & front window this winter
“4. Contractor breached contract forcing us to seek legal help to prevent his threatened lien action, & require his removal from project
“5. He finally moved equipment 2 weeks later & left pile of rock in public right of way that we had to move
“6. We had to contract for & complete balance of work ourselves.”

The board dismissed the claim on two alternate grounds. First, the board concluded that the claim had been untimely filed. According to the board, under ORS 701.145(3)(d) (1997),1 claims involving a failure to complete work must be received not later than one year after the date the parties entered into their contract. In this case, the board noted, although the claim itself alleges “that respondent performed improper and negligent work,” a review of the parties’ correspondence revealed that petitioner “terminated the contract primarily due to respondent’s failure to complete work she asserts was included in the provisions of the parties’ contract.” The claim having been received nearly two years after the parties entered into the contract, the board concluded that the claim was time barred. Second, the board concluded that, in any event, the January 15, 1998, letter “unequivocally * * * offers to release respondent from the contract in consideration of respondent’s agreement to seek no further [423]*423payment for work performed,” an offer that the board found respondent accepted by its conduct in refraining from seeking further payment.

On review, petitioner first argues that the board erred in concluding that her claim is time barred. To the contrary, she argues, her claim plainly sets out a series of complaints, each of which concerns the negligent performance of work, not a failure to complete work. ORS 701.145(3)(d) therefore does not apply. Instead, she argues, ORS 701.145(3)(a), which requires that claims be submitted within one year of taking occupancy of the new residence, applies. Under that statute, she concludes, her claim was timely. The board contends that its characterization of the nature of the claim is a finding of fact, which we examine for substantial evidence in the record as a whole. The board argues that, because at least some of the specific complaints arguably involve respondent’s failure to complete work, we must uphold its finding of fact.

ORS 701.145 provides, in part:

“(3) The board shall not process a claim * * * unless the claim is filed in a timely manner as follows:
“(a) If the owner of a new structure files the claim, the board must receive the claim not later than one year after the date the structure was first occupied or two years after completion, whichever comes first.
* * * *
“(d) Regardless of whether the claim involves a new or existing structure, if the owner files the claim because the contractor failed to substantially complete the work, the board must receive the claim not later than one year after the date the contractor ceased work on the structure.”

It is uncontested that petitioner owns a new structure and that she filed her claim within one year of its initial occupancy. Indeed, the board concedes that, if ORS 701.145(3)(a) applies, the claim was timely filed. The sole question before us, therefore, is whether the claim was filed “because the contractor failed to substantially complete the work.”

Whether an assertion that a claim has been filed “because the contractor failed to substantially complete the [424]*424work” amounts to a finding of fact or a conclusion of law is an interesting question, but one that we need not reach. Even if it is a finding of fact, the board erred in determining that such a finding supports the conclusion that the claim is time barred.

First, we note that the board’s focus was misplaced. The statute refers to the basis of the claim itself. The board based its decision on the reasons for petitioner’s decision to terminate the contract. The reasons for filing the claim may overlap with those for terminating the underlying contract, and they may even be the same in some cases.

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Cite This Page — Counsel Stack

Bluebook (online)
52 P.3d 1129, 183 Or. App. 419, 2002 Ore. App. LEXIS 1371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peplinski-v-construction-contractors-board-orctapp-2002.