428 P.3d 961
Or. Ct. App.2018Background
- Homeowner (defendant) contracted with Cedartech (plaintiff) on 10/6/2014 for cedar-shingle roof maintenance: cleaning, applying Cedarsilver, gutter and skylight cleaning, and to check two leak spots; contract included prevailing-party attorney fees clause.
- Parties orally agreed mid-project that Cedartech would install two bundles of shingles for $800 to attempt leak repairs; Cedartech performed multiple visits and billed $7,045 total; homeowner refused to pay, alleging defective work and uncompleted leak repairs.
- Case went to court-annexed arbitration; arbitrator found for Cedartech but did not file an award; court removed the case from arbitration and the matter proceeded to bench trial.
- Trial court found by preponderance that Cedartech substantially performed the written contract, that homeowner prevented completion of leak repairs by denying entry to the interior, and awarded Cedartech $7,045 less a $1,200 setoff ($800 for shingles, $400 for damaged electrical wire).
- Trial court denied Cedartech attorney fees and declined to award the $500 arbitrator fee as costs; Cedartech appealed the fee rulings, homeowner appealed the judgment and evidentiary rulings.
Issues
| Issue | Cedartech's Argument | Homeowner's Argument | Held |
|---|---|---|---|
| Whether Cedartech substantially performed the contract | Performed the contracted maintenance work and attempted leak repairs; any incomplete leak repair was not Cedartech's fault | Leak repair was part of the contract (or amended contract); failure to repair defeats substantial performance and relieves payment obligation | Court affirmed: substantial performance proven; critical factual finding that homeowner prevented completion of leak repairs supported the ruling |
| Whether leak-repair agreement was part of the written contract or a separate oral agreement | Even if separate, Cedartech performed maintenance and attempted repairs; prevented from finishing leaks | Oral agreement amended contract so failed leak repairs bar recovery | Court declined to resolve single vs. multiple-contract question as dispositive fact was homeowner’s obstruction; affirmed Cedartech recovery |
| Whether homeowner was entitled to larger offset for replacement repairs and damages | Offset of ~$18,000 claimed for substitute performance and consequential damage | Cedartech argued damages/amounts not proved with particularity | Court affirmed limited $1,200 offset (supported $800 shingles + $400 wire); homeowner failed to prove larger, specific damages |
| Admissibility and prejudice of homeowner expert video | Video would show defects and was material to expert testimony | Cedartech objected that it received video late; trial court excluded; homeowner did not make offer of proof | Court affirmed exclusion as not shown prejudicial on appeal because homeowner failed to make an offer of proof for appellate review |
Key Cases Cited
- Anderson v. Allison, 256 Or. 116, 471 P.2d 772 (recognizing party who prevents performance cannot rely on other's failure to perform)
- Fostveit v. Poplin, 255 Or. App. 751, 301 P.3d 915 (substantial-performance review after bench trial)
- American Petrofina v. D & L Oil Supply, 283 Or. 183, 583 P.2d 521 (substantial performance is a question of fact)
- Markwart v. Fry, 60 Or. App. 431, 653 P.2d 1307 (contractor recovery despite alleged deficiencies where substantial performance shown)
- Affeld v. State, 307 Or. 125, 764 P.2d 220 (importance of offer of proof when evidence is excluded)
- Barber v. Green, 248 Or. App. 404, 273 P.3d 294 (when contract mandates prevailing-party fees, court must award fees and consider statutory factors only to set amount)