Butler Block, LLC v. Tri-County Metropolitan Transportation District
242 Or. App. 395
Or. Ct. App.2011Background
- Butler Block, LLC and TriMet entered into a detailed Disposition and Development Agreement in November 2004 for a transit-oriented project on a Portland site.
- Key conditions precedent required Butler Block to secure construction financing and TriMet to receive satisfactory financial information to convey the site.
- The agreement allowed extensions under section 6.04 for delays caused by causes beyond the parties' control, including financing and market conditions.
- The January 2007 third amendment extended closing by nine months to February 10, 2008 due to a neighborhood-design appeal.
- In November 2007, Butler Block sought an 18-month extension under section 6.04, citing market and financing constraints; TriMet declined to treat 6.04 as enabling that extension but agreed to discuss extensions.
- After negotiations, Butler Block claimed it obtained financing from MDPD and attempted to close on February 29, 2008, but TriMet denied extending the closing, and Butler Block filed suit in April 2008 seeking breach and related declarations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Butler Block was entitled to an extension under 6.04 for market/financing delays. | Butler Block: 6.04 unambiguously extends performance for financing/market delays. | TriMet: 6.04 does not compel extensions for financing delays; extensions require negotiation and other contractual conditions. | No, not decisive; even if entitled, not an anticipatory repudiation. |
| Whether TriMet's conduct constituted anticipatory repudiation by refusing to grant an extension under 6.04. | TriMet’s refusals, statements, and federal action show an unequivocal intent not to perform. | TriMet’s conduct was not a definite, unconditional repudiation; negotiations continued and actions did not definitively refuse performance. | TriMet did not anticipatorily repudiate; no anticipatory breach as a matter of law. |
Key Cases Cited
- Swick v. Mueller, 193 Or. 668 (Or. 1951) (anticipatory repudiation requires a definite, unconditional refusal to perform)
- Sollars v. City of Milwaukie, 222 Or. App. 384 (Or. App. 2008) (objective manifestations control over subjective understanding)
- Mohr v. Lear, 239 Or. 41 (Or. 1964) (Mohr test for absolute, unequivocal repudiation)