Mark Wendt Homes, Inc. v. Wilcher

• Decision Date: 19 February 2003
• Citation: 63 P.3d 1271,186 Or. App. 416
• Parties: MARK WENDT HOMES, INC., an Oregon corporation, Respondent, v. Eddie L. WILCHER, Appellant, and C & K Market, Inc., 401(K) Profit Sharing Plan and Trust, Defendant.
• Court: Oregon Court of Appeals

63 P.3d 1271

186 Or. App. 416

MARK WENDT HOMES, INC., an Oregon corporation, Respondent, v. Eddie L. WILCHER, Appellant, and C & K Market, Inc., 401(K) Profit Sharing Plan and Trust, Defendant.

98-00119-CV; A112681.

Court of Appeals of Oregon.

Argued and Submitted January 13, 2003.

Decided February 19, 2003.

Douglas J. Richmond, Medford, argued the cause for appellant. With him on the briefs were Erik J. Glatte and Kellington, Krack, Richmond, Blackhurst & Sutton, LLP.

Andrew C. Brandsness, Klamath Falls, argued the cause for respondent. With him on the brief was Brandsness, Brandsness & Rudd, P.C.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

LANDAU, P.J.

Plaintiff, a contractor, filed this action to foreclose on a construction lien based on defendant's failure to pay for plaintiff's construction of a fireplace.¹ Plaintiff contended that the oral contract was a "cost-plus" contract and that it was entitled to its material costs plus a margin of 5 percent, for a total of $13,610. Defendant argued that the cost-plus contract was not to exceed $8,000 and that, in any event, plaintiff breached the contract by failing to perform it adequately. At the conclusion of plaintiff's case, defendant moved for a judgment of dismissal pursuant to ORCP 54 B(2). The trial court denied the motion. At the conclusion of the trial, the court found that plaintiff had performed negligently in some respects but otherwise was entitled to relief in the amount of $11,600, plus interest.

On appeal, defendant assigns error to the denial of his motion for a judgment of dismissal. According to defendant, on de novo review, we must conclude that the parties agreed that the price could not exceed $8,000. Plaintiff responds that we do not review the denial of a motion for a judgment of dismissal de novo but for any credible evidence and that the record contains credible evidence that the parties agreed to a cost-plus contract without an $8,000 cap.

Motions for judgment of dismissal are to be "sparingly granted." Castro and Castro, 51 Or.App. 707, 713, 626 P.2d 950 (1981). Only when a plaintiff has failed to make out a prima facie case is it appropriate to grant such a motion. Ranger Ins. Co. v. Globe Seed & Feed Co., Inc., 125 Or.App. 321, 327, 865 P.2d 451 (1993), rev. den., 318 Or. 458, 871 P.2d 122 (1994). We do not review the facts de novo. We review the whole record to determine whether the plaintiff introduced "credible evidence" on the essential elements of the claim. Dunkin v. Dunkin, 162 Or.App. 500, 507, 986 P.2d 706, rev. den., 329 Or. 553, 994 P.2d 130 (1999) (quoting Castro, 51 Or.App. at 713, 626 P.2d 950).

In this case, the only disputed element is the contract amount. At trial, plaintiff's division manager, who negotiated the contract, testified that

"it was going to be a cost plus, since I had this small window of time. And we'd agreed, I mean, I just told him I hoped I could do it for the $8,000, in fact I hope[d] I could do it for less than that.

"* * * * *

"But he was under the, you know, he was saying that he wanted me to do the job, I told him I'd like to build his fireplace in order, and we just kind of agreed at that time that we would do it, and it was a budget price to shoot at was $8,000. But we really didn't know what we were building then, I mean there'd be no way at that particular time to estimate it. Because you didn't know the size, you didn't really know what you were going to build. You just knew there was going to be a fireplace."

When pressed on the $8,000 figure, the witness testified that, "I don't think it [was] a hard cold agreement, it was a more or less a budget number that we were...