Shell v. Schollander Companies

336 P.3d 569, 265 Or. App. 624, 2014 Ore. App. LEXIS 1314
CourtCourt of Appeals of Oregon
DecidedSeptember 24, 2014
DocketC106480CV; A150509
StatusPublished
Cited by4 cases

This text of 336 P.3d 569 (Shell v. Schollander Companies) 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
Shell v. Schollander Companies, 336 P.3d 569, 265 Or. App. 624, 2014 Ore. App. LEXIS 1314 (Or. Ct. App. 2014).

Opinion

SCHUMAN, S. J.

This is a construction defect case brought by a homeowner alleging that water intrusion damage resulted from the negligence of defendant, the general contractor who built the house and from whom plaintiff bought it. The trial court granted defendant’s motion for summary judgment on the ground that plaintiff did not initiate this action within the 10-year statute of repose required by ORS 12.115, which begins to run from the time of “the act or omission complained of.” On appeal, plaintiff argues that the court erred in applying that statute; the correct statute, she maintains, is ORS 12.135, which begins to run at the time of “substantial completion,” which, she maintains, occurred later than “the act or omission complained of.” In the alternative, she argues that, even if ORS 12.115 is the applicable statute of repose, the court erred in granting summary judgment to defendant, because there are disputed issues of material fact regarding when, exactly, the “act or omission complained of” occurred. We affirm.

We will affirm the trial court’s ruling granting defendant’s motion for summary judgment if there is no genuine issue of material fact and defendant was entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based on the record before the court viewed in a manner most favorable to the non-moving party, here plaintiff, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. Id.; See Jones v. General Motors Corporation, 325 Or 404, 408, 939 P2d 608 (1997). If there is no issue of material fact in dispute, we review the trial court’s ruling for errors of law. Oregon Southwest, LLC v. Kvaternik, 214 Or App 404, 413, 164 P3d 1226 (2007), rev den, 344 Or 390 (2008).

Here, the relevant facts are undisputed (although, as we explain below, the parties disagree about the characterization of those facts and their legal significance). In 1999, defendant began constructing a house on property it owned in Washington County. At that time, defendant intended to sell the house but had not identified a prospective purchaser of the house and property. However, in May [627]*6272000, before defendant finished the house, plaintiff decided to buy it. Before the end of that month, the parties signed a document captioned “Real Estate Sale Agreement,” including several “addenda” requiring defendant to replace some already-installed floor coverings (tile and carpet) with ones chosen by plaintiff, to install certain closet doors, to plumb a utility room to accommodate a gas dryer, to conduct a “walk-thru” inspection, and to “remedy deficiencies prior to closing.” On June 22, 2000, defendant recorded a Notice of Completion, and the county issued a Certificate of Occupancy seven days later. By that time, the outside shell of the house — that is, the portion of the house that plaintiff alleges was negligently constructed — was substantially completed. Defendant conducted the “walk-through” on July 5, 2000, and two days later, on July 7, agreed to make some minor repairs to the house’s stucco. The purchase closed on July 12, 2000. Plaintiff served a Notice of Defect on defendant, pursuant to ORS 701.565, on June 25, 2010.

The dispute centers on which statute of repose applies to these facts. Plaintiff argues in favor of ORS 12.135:

“(1) An action against a person by a plaintiff who is not a public body, whether in contract, tort or otherwise, arising from the person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof * * * must be commenced before * * *:
“(b) Ten years after substantial completion or abandonment of the construction, alteration or repair of a residential structure * * *.
“(4) For purposes of this section:
“(b) ‘Substantial completion’ means the date when the contractee accepts in writing the construction, alteration or repair of the improvement to real property or any designated portion thereof as having reached that state of completion when it may be used or occupied for its intended purpose or, if there is no such written acceptance, the date [628]*628of acceptance of the completed construction, alteration or repair of such improvement by the contractee.”

(Emphasis added.) According to plaintiff, “substantial completion” occurred, at the earliest, on June 26, 2000, when she accepted a written warranty from defendant covering construction defects.1 The action was “commenced,” she argues, on June 25, 2010, when she sent a Notice of Defect to defendant; the action, she concludes, was therefore within the limitation period by at least one day.

Defendant, however, argues that the trial court correctly identified ORS 12.115(1) as the applicable statute of repose. That statute provides, “In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.” (Emphasis added.) According to defendant, the “act or omission complained of’ was (allegedly) the negligent construction of the outside shell or envelope of the house, and that action necessarily occurred before the notice of completion, that is, before June 22, 2000. The action was commenced, at the earliest, more than 10 years later, when plaintiff sent defendant a Notice of Defect on June 25, 2010.2 [629]*629As noted above, the trial court agreed with defendant and granted its motion for summary judgment.3

On appeal, the parties initially focus on Lozano v. Schlesinger, 191 Or App 400, 84 P3d 816 (2004). In that case, the defendant built a home for himself and lived in it for three years. At that point, he put it on the market and sold it to a third party, who lived in it for five years. The third party then sold it to the plaintiff, who subsequently found what he believed to be construction defects. Id. at 402. The plaintiff then initiated an action against the defendant, who argued that the action was time barred by ORS 12.135. The trial court agreed with the defendant and granted his motion for summary judgment. Id. at 402-03. We reversed, holding that ORS 12.135 did not apply; we reasoned that, under subparagraph (4)(b), that statute applied only if there is a “contractee,” who accepts in writing a completed construction contract, and the plaintiff did not qualify as such a person. Id. at 405.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marshall v. PricewaterhouseCoopers, LLP
505 P.3d 40 (Court of Appeals of Oregon, 2021)
Shell v. Schollander Companies, Inc.
369 P.3d 1101 (Oregon Supreme Court, 2016)
Yeatts v. Polygon Northwest Co.
341 P.3d 864 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
336 P.3d 569, 265 Or. App. 624, 2014 Ore. App. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shell-v-schollander-companies-orctapp-2014.