Robinson v. Builders Bd. of Oregon

• Decision Date: 10 February 1975
• Citation: 20 Or.App. 340,531 P.2d 752,75 Adv.Sh. 517
• Parties: Agnes P. ROBINSON, Petitioner, v. BUILDERS BOARD OF the State of OREGON et al., Respondents.
• Court: Oregon Court of Appeals

Page 752

531 P.2d 752

20 Or.App. 340

Agnes P. ROBINSON, Petitioner, v. BUILDERS BOARD OF the State of OREGON et al., Respondents.

Court of Appeals of Oregon.

Argued and Submitted Jan. 15, 1975.

Decided Feb. 10, 1975.

Paul J. DeBast, Beaverton, argued the cause for petitioner. With him on the brief were Thompson, Adams & Lund, Beaverton.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondents Builders Bd. and Florence Doerfler. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

No appearance by respondents Aztec Builders, Inc., and American Fidelity Fire Ins. Co.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Petitioner Agnes P. Robinson appeals from a final order of the Builders Board on her claim against builder Aztec and its bond. ORS ch. 701. The claim was in the amount of a judgment for $1,638.68; the Board validated only $570.55 of that total. The judgment of the Washington County Circuit Court was:

'1. Defendant's negligent and improper work constitutes a breach of the contract between plaintiff and defendant;

'2. Plaintiff is entitled to judgment against defendant.

'IT IS THEREFORE ORDERED AND DECREED that judgment be entered in favor of plaintiff and against Aztec Builders Incorporated, defendant, for the sum of $988.38, together with the further sum of $600 on account of plaintiff's attorney fees herein, and for plaintiff's costs and disbursements incurred herein taxed at $50.30, and that execution issue therefor.'

A builder is defined by the Act, and it includes Aztec. Builders are required by the Act to file a surety bond with the Board. ORS 701.085. Aztec had contracted to build a duplex for petitioner, and had breached the contract in several respects. Petitioner first tried to file a claim, for loss on account of the breach, with the Board which notified petitioner the claim must be reduced to judgment. Petitioner then proceeded with action in Washington County Circuit Court, obtained the judgment and filed it with the Board pursuant to ORS 701.145.

The order the Board made on the claim was pursuant to ORS 701.150:

'Claims shall be satisfied from the bond * * * in the following priority:

'* * *

'(b) Claims for breach of contract by the owner of the structure.

'* * *.'

ORS 701.085 requires, as a condition of the bond which Aztec filed:

'* * * (T)hat the applicant will, with regard to work subject to this chapter, pay:

'* * *

'(3) All amounts that may be adjudged against the builder by reason of negligent or improper work or breach of contract in performing any work subject to this chapter.'

Work of a builder subject to ORS ch. 701 is '* * * work in connection with the construction, alteration, repair, improvement, moving or demolition of a structure.' ORS 701.005(2). The applicable obligation of the surety bond is couched in the exact words of ORS 701.085(3), above.

The Board decided that those parts of Aztec's contract with petitioner which provided for installation of appliances in the structure and landscaping around it are not included in the language quoted above from ORS 701.005(2) and hence are not assessable against the bond; and that the attorney fees and costs allowed in the judgment also are not assessable against the bond.

Petitioner contended that the language quoted above from ORS 701.085(3) includes all such items.

There is no question but that the contract for construction of the duplex was a contract to build a 'structure' under the Act.

ORS ch. 701 is a remedial statute, made for the protection of the building business and of people dealing with builders...