Wood Park Terrace Apartments Ltd. Partnership v. Tri-Vest, LLC

297 P.3d 494, 254 Or. App. 690, 2013 WL 356899, 2013 Ore. App. LEXIS 117
CourtCourt of Appeals of Oregon
DecidedJanuary 30, 2013
Docket10C11852; A148755
StatusPublished
Cited by4 cases

This text of 297 P.3d 494 (Wood Park Terrace Apartments Ltd. Partnership v. Tri-Vest, LLC) 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
Wood Park Terrace Apartments Ltd. Partnership v. Tri-Vest, LLC, 297 P.3d 494, 254 Or. App. 690, 2013 WL 356899, 2013 Ore. App. LEXIS 117 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

Plaintiff appeals a judgment for defendant, assigning error to the trial court’s grant of defendant’s summary judgment motion, which was based on the court’s conclusion that plaintiff’s action for negligence, negligence per se, and nuisance was time barred. We conclude that the trial court correctly granted summary judgment to defendant and, accordingly, affirm.

Plaintiff owns the Wood Park Terrace Apartments, an affordable housing community for families in Marion County. Defendant is the general contractor with which plaintiff contracted to construct that apartment complex. Construction began in August 1999, and plaintiff, defendant, and the project architect signed a certificate of substantial completion for the apartment complex on April 3, 2000.

In 2008, plaintiff discovered what it characterizes as “systemic catastrophic building envelope deficiencies” allegedly due to defendant’s defective construction. Plaintiff filed suit for negligence, negligence per se, and nuisance on February 17, 2010.

Defendant moved for summary judgment, arguing that, under an accrual clause in the parties’ contract, plaintiff’s action was deemed to have accrued, and the statute of limitations had started to run, on April 3, 2000, the date on which, as all parties agree, the project was substantially complete. Accordingly, defendant argued, plaintiff’s action was untimely under the six-year limitation period set forth in ORS 12.080(3).1 The trial court granted defendant’s motion and entered a general judgment dismissing plaintiff’s complaint. Plaintiff appeals.

On appeal, plaintiff assigns error to the trial court’s conclusion that the accrual clause in the parties’ contract [693]*693applied to plaintiffs negligence claims.2 We review a trial court’s interpretation of a contract for errors of law. See Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997) (prescribing method of contract interpretation). We first examine the text of the disputed provision, in the context of the contract document as a whole, to determine whether the provision is ambiguous.3 Id. If it is not, our analysis ends. Id. Accordingly, we turn to the text of the accrual clause.

The accrual clause is contained in paragraph 13.7.1.1 of the parties’ contract. It provides:

“As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion [.]”

Nothing in the text of that clause suggests that the parties intended that negligence claims be excluded from its provisions. To the contrary, the clause expressly applies to “any applicable statute of limitations” for “any alleged cause of action.” (Emphases added.) Moreover, the clause does not include any limiting language like, for example, a provision restricting the clause’s applicability to actions arising in contract. Cf. Sunset Presbyterian Church v. Brockamp & Jaeger, 254 Or App 24, 29, 295 P3d 62 (2012) (applying an identical accrual clause in the parties’ contract to the plaintiff’s claims for negligence and negligence per se).

Nevertheless, plaintiff contends that, when read in context of the whole contract, the accrual clause must be read to apply only to contract claims. In support of its argument, plaintiff relies on subsection 13.4.1 of the contract — a “remedy-reservation clause” — which provides:

[694]*694“Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.”

Plaintiff argues that, if interpreted to apply to negligence claims, the accrual clause would operate to limit the availability of an extra-contractual remedy, that is, a remedy “otherwise *** available by law,” which the remedy-reservation clause says the contract cannot limit. To avoid that purported conflict between the two contract provisions and give full effect to both, plaintiff argues, the accrual clause must be construed to apply only to contract claims. See Williams v. RJ Reynolds Tobacco Company, 351 Or 368, 379, 271 P3d 103 (2011) (“The court must, if possible, construe the contract so as to give effect to all of its provisions.”). Plaintiff also contends that, if the accrual clause were interpreted to apply to negligence claims, it would function as an insufficiently explicit waiver of that tort remedy.4

Addressing those two arguments in the order presented, we first conclude that plaintiff’s remedy-reservation clause argument depends on an overly broad reading of that clause’s reference to “duties, obligations, rights and remedies otherwise imposed or available by law.” Plaintiff’s interpretation of that clause to preclude any contractual limit on the parties’ ability to bring a negligence claim cannot be reconciled with other contract provisions — including the accrual clause — that explicitly restrict the circumstances under which “any” claim may be brought. To harmonize those provisions, we construe the phrase “duties, obligations, rights and remedies otherwise imposed or available by law” to preserve only those rights and remedies not otherwise displaced or limited by the terms of the contract. Our interpretation gives effect to the plain language of both the remedy-reservation clause and the accrual clause, and is supported by the long-held understanding that parties are free to contractually modify extra-contractual claims and the timeframes in which to bring them. Ristau v. Wescold, Inc., 318 Or 383, 388, 868 [695]*695P2d 1331 (1994) (upholding the parties’ general release agreement as it applied to a statutory claim for fraud in the inducement); Hatkoff v. Portland Adventist Medical Center, 252 Or App 210, 222, 287 P3d 1113 (2012) (“[P]arties are free to contractually limit the timeframe in which to bring a claim, and that limit will be enforced unless unreasonable.”). In short, the remedy-reservation clause does not limit the accrual provisions to only contract claims, as plaintiff contends. Instead, the two clauses work in harmony to preserve the parties’ right to bring tort claims, subject to the parties’ contractual agreement that any negligence claim will be deemed to have accrued at substantial completion.

We also disagree with plaintiff’s second contention, i.e., that interpreting the accrual remedy to apply to negligence claims would amount to a determination that plaintiff had waived its right to bring that type of action. Under Oregon law, a waiver is the “intentional relinquishment of a known right.” Guardian Management, LLC v. Zamiello, 194 Or App 524, 529,95 P3d 1139 (2004) (internal quotation omitted). Consequently, contracts will not be construed to waive certain remedies absent a clear and unequivocal expression of that waiver. Estey v. MacKenzie Engineering Inc., 324 Or 372, 376, 927 P2d 86 (1996).

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

Related

Charter v. Kearney (In re Colen)
516 B.R. 618 (D. Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
297 P.3d 494, 254 Or. App. 690, 2013 WL 356899, 2013 Ore. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-park-terrace-apartments-ltd-partnership-v-tri-vest-llc-orctapp-2013.