Vill. at N. Pointe Condos. Ass'n v. Bloedel Constr. Co.

• Decision Date: 18 May 2016
• Docket Number: A151032.,082260
• Citation: 374 P.3d 978,278 Or.App. 354
• Parties: The VILLAGE AT NORTH POINTE CONDOMINIUMS ASSOCIATION, aka The Association of Unit Owners of the Village at North Pointe Condominiums, an Oregon corporation, Plaintiff–Appellant, Cross–Respondent, v. BLOEDEL CONSTRUCTION CO., an Oregon corporation; and Rodger L. Bloedel, an individual, Defendants–Respondents Cross–Appellants, and Big Sky Construction Company, an Oregon corporation, Defendant–Respondent Cross–Respondent. Bloedel Construction Co., an Oregon corporation, Third–Party Plaintiff Cross–Appellant, v. Belanger General Contracting, Inc., an Oregon corporation; Brad Putnam, an individual, dba Oceanside Enterprises ; KNP Builders, LLC, an Oregon limited liability company; Dominic Micherone, II, an individual; Rich Manning Concrete, Inc., an Oregon corporation; Walker Roofing, Inc., an Oregon corporation; Jagow & Sons Roofing & Siding Co., Inc., an Oregon corporation; Stephen Waldroup Construction, Inc., an Oregon corporation, dba Ultra Quiet Floors; Ernest O. Roberts, dba E & R Contractors, an Oregon general partnership; and Rich Manning, dba Rich Manning Concrete, Inc., Third–Party Defendants–Respondents Cross–Respondents, and Mastercraft Restoration & Maintenance, LLC, an Oregon limited liability company; Third–Party Defendant.
• Court: Oregon Court of Appeals

278 Or.App. 354

374 P.3d 978

The VILLAGE AT NORTH POINTE CONDOMINIUMS ASSOCIATION, aka The Association of Unit Owners of the Village at North Pointe Condominiums, an Oregon corporation, Plaintiff–Appellant, Cross–Respondent

v.BLOEDEL CONSTRUCTION CO., an Oregon corporation; and Rodger L. Bloedel, an individual, Defendants–Respondents Cross–AppellantsandBig Sky Construction Company, an Oregon corporation, Defendant–Respondent Cross–Respondent.

Bloedel Construction Co., an Oregon corporation, Third–Party Plaintiff Cross–Appellant

v.Belanger General Contracting, Inc., an Oregon corporation; Brad Putnam, an individual, dba Oceanside Enterprises ; KNP Builders, LLC, an Oregon limited liability company; Dominic Micherone, II, an individual; Rich Manning Concrete, Inc., an Oregon corporation; Walker Roofing, Inc., an Oregon corporation; Jagow & Sons Roofing & Siding Co., Inc., an Oregon corporation; Stephen Waldroup Construction, Inc., an Oregon corporation, dba Ultra Quiet Floors; Ernest O. Roberts, dba E & R Contractors, an Oregon general partnership; and Rich Manning, dba Rich Manning Concrete, Inc., Third–Party Defendants–Respondents Cross–RespondentsandMastercraft Restoration & Maintenance, LLC, an Oregon limited liability company; Third–Party Defendant.

082260

A151032.

Court of Appeals of Oregon.

Argued and Submitted June 15, 2015.

Decided May 18, 2016.

A. Richard Vial, Lake Oswego, argued the cause for appellant-cross-respondent. With him on the briefs were Christopher M. Tingey, Michael D. Montag, and Vial Fotheringham LLP.

Janet M. Schroer, Portland, argued the cause for respondents-cross-appellants Rodger Bloedel and Bloedel Construction Co. With her on the joint answering brief were Ruth C. Rocker and Hart Wagner LLP; Jonathan Henderson and Davis Rothwell Earle & Xochihua and Bruce R. Gilbert and Smith Freed & Eberhard PC for respondent Big Sky Construction Company. On the opening and reply briefs on cross-appeal were Janet M. Schroer, Ruth C. Rocker, and Hart Wagner LLP.

Thomas M. Christ, Portland, argued the cause for respondents-cross-respondents Belanger General Contracting, Inc., and Jagow & Sons Roofing & Siding Co., Inc. With him on the briefs were Julie A. Smith and Cosgrave Vergeer Kester LLP.

Jonathan Henderson and Davis Rothwell Earle & Xochihua, P.C. filed the brief for respondent-cross-respondent Big Sky Construction Company.

No appearance for respondent-cross-respondent KNP Builders.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.^*

EGAN, J.

In this construction defect case, plaintiff, The Village at North Pointe Condominiums Association, appeals from a general judgment and supplemental judgments following a jury verdict for defendant contractors, Bloedel Construction Co., Rodger Bloedel, and Big Sky Construction Company, and third-party defendant subcontractors, Belanger General Contracting, Inc., and Jagow & Sons Roofing & Siding Co., Inc.¹ Plaintiff asserts five assignments of error on appeal. We reject plaintiffs second and third assignments of error without written discussion. In its first assignment of error, plaintiff challenges the trial court's refusal to remove one of the jurors “at three points during the proceedings.” With the exception of the trial court's denial of plaintiff's motion to remove the objectionable juror during voir dire for cause, plaintiff does not precisely identify which rulings it challenges, as required by ORAP 5.45(3), thus, we address only that identified ruling. As to that ruling, we conclude that plaintiff did not preserve before the trial court the contention that it raises on appeal. In its fourth assignment of error, plaintiff challenges the trial court's attorney fee award to Bloedel Construction. We conclude that plaintiff's argument has merit in one respect—the trial court should have apportioned fees incurred on insurance coverage issues, which were not recoverable by Bloedel Construction, from the fees incurred on the litigated claims, which were recoverable because they shared common issues with the fee-generating breach-of-contract claim. Finally, in its fifth assignment of error, plaintiff challenges the trial court's award of costs to Belanger and Jagow against plaintiff. We conclude that the trial court erred in relying on ORS 20.096 as authority for the cost awards, but could have exercised its discretion under ORCP 68 B to make those awards. Because we affirm the general judgment, we do not address the precautionary cross-appeal brought by Bloedel Construction and Bloedel. Accordingly, we affirm the general judgment, reverse and remand the attorney fee award in the supplemental judgment entered for Bloedel Construction and Bloedel for apportionment in accordance with this opinion, and vacate and remand the supplemental judgments entered for Belanger and Jagow for reconsideration under ORCP 68 B.

The facts pertaining to the assignments of error on appeal that we address are procedural or undisputed. Plaintiff is a homeowners' association established to manage a 52–unit condominium building located in Depoe Bay, Oregon. Bloedel and Bloedel Construction developed and built the condominiums. Bloedel Construction and Big Sky acted as the condominium's declarants, and Bloedel served as the association's president until turning over control to the homeowners in 2003.

In 2008, plaintiff filed a complaint against Bloedel, Bloedel Construction, and Big Sky, asserting several claims for relief related to alleged construction defects in the condominiums that caused water intrusion. Bloedel Construction, in turn, brought third-party claims based on indemnity and contribution against the subcontractors who worked on the project and a cross-claim against Big Sky as one of the subcontractors.

At trial, plaintiff advanced five claims for relief: (1) negligence against all three defendants, (2) negligent misrepresentation against all three defendants, (3) unreasonable interference with use and enjoyment against all three defendants, (4) breach of fiduciary duties against all three defendants, and (5) breach of the condominium unit sales contracts against Bloedel Construction. After a lengthy trial, the jury returned a verdict for defendants on all of plaintiffs claims. As a result, the court entered a general judgment for defendants on plaintiffs claims and for the subcontractors on Bloedel Construction's third-party claims.

Following entry of the general judgment, as prevailing parties, Bloedel Construction sought to recover its attorney fees and costs, and the other defendants and third-party defendants sought to recover their costs. As relevant on appeal, in three supplemental judgments, the trial court taxed those fees and costs against plaintiff, as follows: (1) Bloedel Construction's attorney fees in the amount of $481,000 and Bloedel Construction's and Bloedel's costs in the amount of $6,957.40; (2) Belanger's costs in the amount of $2,319.49; and (3) Jagow's costs in the amount of $2,269.49.

Plaintiff appeals the general judgment and the three supplemental judgments. We write to address plaintiffs challenge to the trial court's refusal to remove one of the jurors, the amount of attorney fees awarded to Bloedel Construction, and the award of costs to Belanger and Jagow.

I. JUROR REMOVAL

During voir dire and trial, plaintiff sought to remove one of the jurors—Frey—from the jury. The trial court denied each of those efforts. On appeal, in a single assignment of error, plaintiff assigns as error the trial court's failure “to remove juror Frey at three points during the proceedings and thereby den[ying] plaintiff a fair trial before an impartial jury.” Before reviewing the facts and arguments related to plaintiff's assignment, we first address defendants' challenge that plaintiff's assignment is unreviewable on appeal because it does not comply with the requirements of ORAP 5.45.

It is fundamental that, to obtain appellate review, “[e]ach assignment of error shall be separately stated” and “[e]ach assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.” ORAP 5.45(2), (3) ; see also ORAP 5.45(1) ( “Assignments of error are required in all opening briefs of appellants and cross-appellants.”). We will not consider a claim of error if it is not assigned as error in the opening brief as required by ORAP 5.45(1). An assignment of error does not comply with ORAP 5.45(3) if “it assigns error to what is essentially a legal conclusion and not a specific ruling.” Rutter v. Neuman, 188 Or.App. 128, 132, 71 P.3d 76 (2003).

Compliance with ORAP 5.45 is not a matter of mere form; it is crucial to our ability to review trial court rulings for error and to determine whether the appellant's claims of error were preserved below. See, e.g., Landauer v. Landauer, 221 Or.App. 19, 23–24, 188 P.3d 406 (2008) (“The grouping of a trial court's rulings under a single assignment of error hinders evaluation of each individual ruling on its merits and is a practice that should not be followed.”); Association of Unit Owners v. Dunning, 187 Or.App. 595, 605, 69 P.3d 788 (2003) (“The association's assignment falls far short of that [ORAP 5.45(3) ] requirement, leaving us to attempt to divine—by comparing the arguments on appeal with the arguments advanced in support of and opposition to each of the motions in the trial court—what the association is most likely getting at.”). A failure to comply with ORAP 5.45 generally renders the claim of error unreviewable on appeal. See, e.g., Strawn v. Farmers Ins. Co., 228 Or.App. 454, 475, 209 P.3d 357 (2009), aff'd in part and rev'd in part on other grounds, 350 Or. 336, 258 P.3d 1199, adh'd, to on recons., 350 Or. 521, 256 P.3d 100 (2011), cert. den., ––– U.S. ––––, 132 S.Ct. 1142, 181 L.Ed.2d 1017 (2012) (declining to reach claims of error because the noncompliance with ORAP 5.45 rendered the court unable to determine what rulings were being challenged and whether the...