Shelter Products, Inc. v. Steelwood Construction, Inc.

307 P.3d 449, 257 Or. App. 382
CourtCourt of Appeals of Oregon
DecidedJuly 3, 2013
Docket10C20285; A148959
StatusPublished
Cited by9 cases

This text of 307 P.3d 449 (Shelter Products, Inc. v. Steelwood Construction, Inc.) 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
Shelter Products, Inc. v. Steelwood Construction, Inc., 307 P.3d 449, 257 Or. App. 382 (Or. Ct. App. 2013).

Opinion

SERCOMBE, J.

This case involves a dispute between a general contractor, Catamount Constructors, Inc. (Catamount), and one of its subcontractors, Steelwood Construction, Inc. (Steelwood).1 Catamount contracted with Steelwood to perform work and provide certain materials for the construction of the Salem Home Depot regional distribution center (the project). However, after Steelwood provided the materials in question and began work on the project, Catamount terminated its agreement with Steelwood “for convenience.” Steelwood filed a construction lien on the project and, as part of this action, alleged claims for, among other things, breach of contract and construction lien foreclosure.2 Thereafter, Steelwood sought summary judgment against Catamount and, after a hearing, the trial court granted the motion and entered a limited judgment against Catamount.3 On appeal, Catamount raises five assignments of error, asserting that the trial court erred in granting summary judgment in favor of Steelwood. For the reasons explained below, we affirm the grant of summary judgment.

When reviewing a trial court’s grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party — in this case, Catamount. Vaughn v. First Transit, Inc., 346 Or 128, 132, 206 P3d 181 (2009).

[385]*385Catamount, as noted, was the general contractor on the project and hired Steelwood as a subcontractor. Catamount and Steelwood entered into a purchase order, a subcontract, and a joint check agreement. Pursuant to the purchase order, which was signed “in conjunction with the Subcontract for a complete Steel erection and panelized roof system,” Steelwood was to provide materials for which Catamount was to pay a total of $300,000. Under the subcontract, Steelwood was to complete the installation of structural steel and the roofing system for the project. The agreement, which the parties signed on March 24, 2010, provided a schedule pursuant to which work was to begin by May 2010 and be completed in July. The subcontract specified that time was of the essence. Among other things, the subcontract provided that Catamount could terminate the agreement for convenience:

“18. Termination for Convenience. The Contractor may, upon seven (7) days written notice to the Subcontractor, without cause and without prejudice to any other right or remedy, terminate this Subcontract, in whole or in part, for its convenience. Upon receipt of any such notice, Subcontractor shall, unless the notice directs otherwise, immediately discontinue the work on that date and to the extent specified in the notice, place no further orders or subcontracts for materials, equipment, services, or facilities, except as may be necessary for completion of such portion of the work as is not discontinued; promptly make every reasonable effort to procure cancellation upon terms satisfactory to Contractor of all orders and subcontracts to the extent they relate to the performance of the discontinued portion of the work and shall thereafter do only such work as may be necessary to preserve and protect work already in progress and to protect materials, plant and equipment' on the site or in transit thereto. The obligations of the Subcontractor shall continue as to portions of the work already performed and as to bona fide obligations assumed by Subcontractor prior to the date of termination. Subcontractor shall be entitled to be paid the full cost of all work properly done by Subcontractor to the date of termination not previously paid for, less sums already received by Subcontractor on account of the portion of the work performed. Should the Contractor’s termination of the Subcontract under this [386]*386paragraph be deemed improper or wrongful, then such termination shall be deemed automatically to have occurred pursuant to Contractor’s rights under paragraph 17.”

(Boldface omitted.) The agreement also provided that Catamount could make payment to Steelwood through joint checks made payable “to the joint order of [Steelwood and its] sub subcontractors, suppliers or others ***.” The joint check agreement, executed by representatives of Catamount, Steelwood, and Shelter Products (one of Steelwood’s suppliers on the project) on the same day as the subcontract,4 provided that Catamount would “endeavor to make monthly payments jointly to [Shelter Products] and [Steelwood] for all amounts owing to [Shelter Products] during the course of the Project * * *.”

All of the materials required under the purchase order were delivered to the work site and, thereafter, Steelwood invoiced Catamount for those materials. Catamount did not pay the invoice at that time. After Steelwood began work on the project, on Wednesday, June 16, 2010, Catamount’s project manager sent Steelwood a letter outlining concerns about the progress of work on the project. In particular, he set out several issues: (1) there would be additional costs if the work was not complete within the agreed time period; (2) daily housekeeping at the work site was inadequate and Catamount planned to begin cleaning up after Steelwood and billing Steelwood for that; (3) certain work was deficient — certain braces and nailing were incomplete and some nails, bolts, and plates were missing; and (4) “[production is not where committed to in [the] contract.” The project manager stated that “[o]n Monday morning we will evaluate where you are and how to best assist you in meeting your contractual obligations.” However, on Saturday, June 19, 2010, Catamount terminated the contract for convenience pursuant to paragraph 18 of the subcontract. Accordingly, on Monday, June 21, Steelwood vacated the work site.

After it terminated Steelwood for convenience, Catamount refused to pay Steelwood’s invoice for materials delivered under the purchase order. It also declined to pay [387]*387Steelwood for work performed under the subcontract prior to termination. Thereafter, Steelwood recorded a construction lien for $369,679.30. Several of Steelwood’s suppliers for the project — Shelter Products, White Cap Construction Supply, and Ahern Rentals — also filed construction liens on the property, and Catamount posted bonds on those liens.

Catamount, for its part, cleaned debris left by Steelwood on the project site and entered into a subcontract with a new company, Panelized Structures, to complete the work Steelwood was to have done. According to Catamount, it incurred $75,440 in conjunction with the clean up and to repair Steelwood’s work:

“That amount is comprised of $61,668 which Catamount paid to Panelized Structures to repair and clean up Steelwood’s defective work; $276.00 Catamount incurred for clean-up of the Project site that it performed; $150.00 Catamount spent to hire a locksmith to enter a storage unit which Steelwood had left locked; and $13,350.00 which Catamount incurred in additional labor and travel costs in coordinating and supervising the above-described repairs and clean-up.”5

[388]*388However, after terminating the contract with Steelwood, Catamount did not provide Steelwood with notice that its work was defective or needed repair, nor did it give Steelwood an opportunity to enter the work site with respect to any defects in the work it performed.

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Cite This Page — Counsel Stack

Bluebook (online)
307 P.3d 449, 257 Or. App. 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelter-products-inc-v-steelwood-construction-inc-orctapp-2013.