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

• Decision Date: 28 September 2016
• Docket Number: A151032
• Citation: 383 P.3d 409,281 Or.App. 322
• Court: Oregon Court of Appeals
• 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.

281 Or.App. 322

383 P.3d 409

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,andBig 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,andMastercraft Restoration & Maintenance, LLC, an Oregon limited liability company; Third–Party Defendant.

A151032

Court of Appeals of Oregon.

Submitted June 1, 2016.

September 28, 2016

A. Richard Vial, Christopher M. Tingey, Michael D. Montag, and Vial Fotheringham LLP, for petition.

Thomas M. Christ and Cosgrave Vergeer Kester LLP, for response.

Janet M. Schroer and Hart Wagner, LLP, for petition.

Christopher M. Tingey and Vial Fotheringham LLP, for petition.

Thomas M. Christ and Cosgrave Vergeer Kester LLP, for response.

Janet M. Schroer and Hart Wagner LLP, for response.

Janet M. Schroer and Hart Wagner LLP, for petition and reply.

A. Richard Vial, Christopher M. Tingey, Michael D. Montag, and Vial Fotheringham LLP, for response.

Thomas M. Christ and Cosgrave Vergeer Kester LLP, for petition.

A. Richard Vial, Christopher M. Tingey, Michael D. Montag, and Vial Fotheringham LLP, for response.

Janet M. Schroer and Hart Wagner LLP, for petition.

Jonathan Henderson and Davis Rothwell Earle & Xochihua, P.C., for petition.

A. Richard Vial, Christopher M. Tingey, Michael D. Montag, and Vial Fotheringham LLP, for response.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

EGAN, J.

Defendants Bloedel Construction Co. and Rodger Bloedel (collectively, the Bloedel defendants) seek reconsideration of our decision in Village at North Pointe Condo. Assn. v. Bloedel Constr. , 278 Or.App. 354, 374 P.3d 978 (2016) (Village ), contending that plaintiff should not have been designated as the prevailing party on appeal and contending that their cross-appeal should have been dismissed as moot with no prevailing party.¹ Plaintiff also seeks reconsideration of our opinion, the merits of which we reject without discussion. For the reasons that follow, we allow reconsideration based on the Bloedel defendants' petition and adhere to our former opinion, but we conclude that we erred in our designation of the prevailing parties and in our disposition of the cross-appeal. Accordingly, we designate respondents Bloedel Construction Co., Rodger Bloedel, Big Sky Construction Company, Belanger General Contracting, Inc., and Jagow & Sons Roofing & Siding Co., Inc., as the prevailing parties on appeal and dismiss the cross-appeal as moot with no prevailing party.

Bloedel Construction and plaintiff also filed competing petitions for attorney fees, and all of the parties to the appeal filed statements of costs and disbursements. Based on our disposition on reconsideration, and as explained below, we award attorney fees to Bloedel Construction payable by plaintiff in the amount of $100,732.50; award costs and a prevailing-party fee to the Bloedel defendants payable by plaintiff in the amount of $529.60; award costs to Big Sky Construction Company payable by plaintiff in the amount of $373.00; award costs and a prevailing-party fee to Belanger and Jagow in the amount of $405.00 payable by plaintiff, to abide the outcome on remand. We also deny plaintiff's petition for attorney fees and statement of costs and disbursements.

Plaintiff, a homeowners' association of a 52–unit condominium building, brought a construction defect action against Bloedel Construction, Rodger Bloedel, and Big Sky, asserting claims for negligence, negligent misrepresentation, unreasonable interference with use and enjoyment, and breach of fiduciary duties. Plaintiff brought an additional claim for breach of the condominium unit sales contracts against only Bloedel Construction. The Bloedel defendants, in turn, brought third-party claims against various subcontractors, which included, among others, Big Sky, Belanger, and Jagow. The jury returned a verdict for defendants on all of plaintiff's claims, and the trial court entered a general judgment for defendants on plaintiff's claims and for the subcontractors on the third-party claims. Village , 278 Or.App. at 358, 374 P.3d 978. In three supplemental judgments, the trial court also taxed against plaintiff Bloedel Construction's attorney fees, the Bloedel defendants' costs, Belanger's costs, and Jagow's costs. Id. at 358–59, 374 P.3d 978.

Plaintiff challenged the general judgment and the three supplemental judgments on appeal. The Bloedel defendants brought a precautionary cross-appeal to be addressed only if we reversed the general judgment. In Village, we rejected each of plaintiff's challenges to the general judgment, and, thus, we did not address the precautionary cross-appeal. Id. at 357, 374 P.3d 978. In the tagline, we “affirmed” both the general judgment and the cross-appeal. Based on our affirming on cross-appeal, we designated “cross-respondents” as the prevailing parties on cross-appeal.

We also addressed plaintiff's challenges to the supplemental judgments. With respect to Bloedel Construction's attorney fee award, we concluded that one aspect of plaintiff's argument had merit, in that “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.” Id . We also vacated and remanded for reconsideration the trial court's award of costs to Belanger and Jagow against plaintiff because “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.” Id. We designated plaintiff as the prevailing party on appeal.

In their petition for reconsideration, the Bloedel defendants argue that we erred in designating plaintiff as the prevailing party on appeal because plaintiff prevailed on only a small part of their appeal with regard to a small portion of the overall attorney fees awarded to Bloedel Construction. They argue that the more significant holdings in Village were our affirming the general judgment and rejecting plaintiff's attack on the attorney fee award based on its argument that most of the claims in the case were not common to the fee-generating breach-of-contract claim.

In opposing plaintiff's cost award, Belanger and Jagow similarly argue that plaintiff also should not have been designated as the prevailing party on appeal with regard to the portion of the appeal that pertained to them. They argue that they should be allowed their costs payable by plaintiff, conditional upon their prevailing on remand in the trial court. Because in Village we vacated and remanded the supplemental judgments for the trial court to reconsider under ORCP 68 B, they argue that it is possible, and likely, that on remand plaintiff will ultimately lose its appeal challenging the cost awards to Belanger and Jagow.

As explained below, we allow the Bloedel defendants' petition for reconsideration and conclude that we did err in designating plaintiff as the prevailing party on appeal. We also agree with Belanger and Jagow that we erred in designating plaintiff as the prevailing party on appeal with respect to the appeal of the supplemental judgments that pertained to them.

Our determination of the prevailing party on appeal for purposes of attorney fees is governed by ORS 20.077. Under that statute, “the prevailing party is the party who receives a favorable judgment * * * on the claim.” ORS 20.077(2). That statute further provides that

“[n]otwithstanding subsection (2) of this section, upon appeal of a judgment in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment.”

ORS 20.077(3). Our determination of the prevailing party on appeal for purposes of allowing costs is governed by ORAP 13.05. That provision similarly provides that “the appellant * * * is the prevailing party only if the court reverses or substantially modifies the judgment or order from which the appeal or judicial review was taken. Otherwise, the respondent * * * is the prevailing party.” ORAP 13.05(3).

In this case, there is no dispute that the Bloedel defendants, Big Sky, Belanger, and Jagow, are the parties who received a favorable general judgment on the claims brought against them, and received favorable supplemental judgments awarding attorney fees and costs payable by plaintiff. Further, there is no dispute that, even after appeal, on remand Bloedel Construction remains entitled to a favorable judgment for a substantial amount of attorney fees, and that the trial court has the discretion to again award Belanger and Jagow a favorable judgment for their costs. Plaintiff, as a result of its appeal, only obtained (1) a reversal on a relatively small portion of Bloedel Construction's attorney fee award...