John Hyland Const., Inc. v. Williamsen & Bleid, Inc.

Decision Date30 August 2017
Docket NumberA157122.
Citation402 P.3d 719,287 Or.App. 466
Parties JOHN HYLAND CONST., INC., an Oregon corporation, Plaintiff-Appellant, v. WILLIAMSEN & BLEID, INC., an Oregon corporation, Defendant-Respondent.
CourtOregon Court of Appeals

Wm. Randolph Turnbow argued the cause and filed the briefs for appellant.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent.

Before Tookey, Presiding Judge, and Hadlock, Chief Judge, and Aoyagi, Judge.*

HADLOCK, C. J.

This case involves a dispute between a general contractor (plaintiff) and a subcontractor (defendant) on a construction project for Lane Community College (LCC). Plaintiff filed an action claiming that defendant breached the contract between the parties (the subcontract) by not performing or completing certain specified work in accordance with the subcontract's requirements. In response, defendant counterclaimed that plaintiff breached the subcontract by failing to pay defendant the amounts due and owing under it and by acting in bad faith. After a bench trial, the trial court found in defendant's favor on both the claim and counterclaim for breach of contract and entered a judgment awarding defendant $51,786 in damages on its counterclaim. On appeal, plaintiff purports to raise four assignments of error; however, as explained below, plaintiff does not identify a ruling of the trial court that it seeks to have reversed, nor does plaintiff's briefing demonstrate that the legal theories underlying those assignments were ever cohesively presented to the trial court for decision, as required by the Oregon Rules of Appellate Procedure. Because of those deficits, we do not consider plaintiff's arguments. See Ailes v. Portland Meadows, Inc. , 312 Or. 376, 384, 823 P.2d 956 (1991) (a plaintiff's failure to either preserve or properly raise an argument on appeal "normally will preclude its consideration on appeal"). Accordingly, we affirm.

For background purposes, we briefly describe the facts leading up to this appeal. LCC selected plaintiff to be the general contractor for a construction project that involved a major renovation of two buildings and the construction of an outdoor space (the Building 10/11/Breezeway Renovation). The contract between LCC and plaintiff was a standard AIA1 form contract that provided, among other things, that LCC's architect had the authority to "reject Work that does not conform to the Contract Documents," and to "interpret and decide matters concerning performance under, and requirements of, the Contract Documents."2

Plaintiff, in turn, contracted with defendant, a "paintings and coatings specialty subcontractor," to do the painting and coating work on the LCC project. That subcontract included a requirement that "[defendant] assume [ ] toward [plaintiff] all obligations and responsibilities that [plaintiff] assumes toward [LCC] under the Contract Documents, to the extent those obligations and responsibilities apply to the Work." It also provided that plaintiff was not obligated to make final payment to defendant until (1) the work was "fully performed" according to the subcontract and accepted by plaintiff and LCC; (2) defendant was not in "default" under the subcontract, and (3) plaintiff has received full payment from LCC with respect to the work.

Defendant began its work in May of 2011, and it progressed smoothly for several months. At some point during late summer and early fall, however, the architect circulated several "punch lists," identifying work that needed to be corrected or completed before the architect would certify that the project was complete and LCC would make final payment to plaintiff. Defendant performed work on the punch-list items, but plaintiff and defendant disagreed about whether all of it was completed, in a satisfactory manner, and whether some items were within the scope of the subcontract. In addition, around that time, it was also discovered that defendant had not yet applied the intumescent coating that the subcontract required.3 Defendant began that application in December, during the school's holiday break, but plaintiff and the architect became concerned that the coating was being applied outside of the manufacturer's recommended range of temperature, and defendant did not complete it.4 Plaintiff eventually completed the work using its own employees and a substitute painting subcontractor.

Plaintiff subsequently brought this action against defendant, alleging that defendant had breached the subcontract "by failing to perform all of [the] work in accordance with the requirements of the subcontract" in several particulars, including, as narrowed on appeal, by refusing to remove overspray from certain surfaces, failing to paint certain ducts and conduits, failing to properly prepare and seal masonry surfaces, and failing to properly prepare and apply intumescent coatings and "refusing to complete" that work. As a result, plaintiff alleged, it was entitled to damages of $57,365.74 for the cost of repairing and completing defendant's work, less "application of all appropriate credits."

In response, defendant counterclaimed for breach of contract against plaintiff, alleging that plaintiff breached the parties' subcontract by failing to pay progress payments owed to defendant when they were due, failing to pay the total amount due under the subcontract and change orders, and acting in bad faith.5 Defendant sought $51,655 in damages for that counterclaim.

The parties waived jury and tried their case to the court, telling the court that it was "a punch list case." After five days of trial, which included a visit to the work site, the court ruled in defendant's favor on both the claim and counterclaim. Announcing its decision from the bench, the court first concluded that plaintiff had failed to prove that defendant breached the subcontract in any of the particulars alleged by plaintiff. The court stated that it was relying on its assessment of the credibility of the parties' respective witnesses; the court explained that it found plaintiff's witnesses to be generally not credible and, on the other hand, that it believed defendant's witnesses' testimony regarding the work that defendant had done. Thus, the court apparently considered the dispute to depend on resolution of a factual matter—specifically, did defendant fail to complete the work of the subcontract in the manner alleged by plaintiff's complaint? The court's answer to that question apparently turned, at least in part, on a finding that the evidence that defendant put on about its performance under the contract was more credible than the evidence that plaintiff put on about defendant's lack of performance. The court also concluded that plaintiff had not proved damages.

Next, the court concluded that defendant had proved its counterclaim for breach of the subcontract by plaintiff, finding that "plaintiff did in fact fail to pay payments that were due and owing to the defendant for work covered by the contract itself." It declined, however, to find that defendant was entitled to payment for "extra work"—that is work outside the scope of the contract—that defendant had also claimed.

The court subsequently entered judgment in defendant's favor on plaintiff's claim for breach of contract and on defendant's counterclaim for breach of contract, and it awarded defendant damages of $51,786 on its counterclaim. Plaintiff appeals that judgment.6

Before turning to plaintiff's specific arguments, we review the prerequisites for obtaining appellate review of an asserted trial-court error. We do so because, as explained below, those prerequisites have not been met in this case. Moreover—and most importantly—the deficiencies (in preserving claims of error and in identifying purportedly erroneous rulings on appeal) are such that no issue is properly before us for resolution on the merits.

For a party appealing a trial court's judgment, the first challenge—and requirement—is to "identify" in each assignment of error "precisely the legal, procedural, factual, or other ruling that is being challenged." ORAP 5.45(3). In addition to identifying a specific ruling that is challenged, each assignment of error must "specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court," ORAP 5.45(4)(a)(i), and set out pertinent quotations of the record where the issue was raised and the ruling was made, ORAP 5.45(4)(a)(ii).

That requirement—that the appellant precisely identify the ruling that is being challenged—is not a mere matter of form, or simply a hoop to be jumped through on the way to briefing the merits of an appeal. In our system of justice, the purpose of an appeal is not to give the appellant an opportunity to pursue a new theory that it did not rely on below. Rather, "the function of appellate review" is "to correct errors of the trial court." Falk v. Amsberry , 290 Or. 839, 843, 626 P.2d 362 (1981). The appellant must identify a specific ruling before we are able to determine whether that ruling was erroneous and requires correction. See Faverty v. McDonald's Restaurants , 133 Or.App. 514, 527-28, 892 P.2d 703 (1995), rev. dismissed , 326 Or. 530, 971 P.2d 407 (1998) ("Our function is to determine whether the trial court made an error of law about issues actually raised below and properly assigned as error on appeal.").

Thus, the appellant's proper assignment of error enables this court to determine, among other things, the precise nature of the trial court's ruling and the basis for it, the standard of review that we apply when reviewing that kind of ruling, and (as discussed below) whether the arguments that form the basis for the appellant's challenge to that ruling were adequately preserved. See Migis v. Auto z one, Inc. , 282 Or.App. 774, 805, 387...

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    ...not to give the appellant an opportunity to pursue a new theory that it did not rely on below." John Hyland Const., Inc. v. Williamsen & Bleid, Inc. , 287 Or. App. 466, 471, 402 P.3d 719 (2017). An exception to that general observation—and one that appears more frequently as of late—is revi......
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