338 P.3d 755
Or. Ct. App.2014Background
- This appeal relates to the same construction litigation as Riverview Condo. Assn. v. Cypress Ventures, involving Brookfield’s third-party claims for contribution and indemnity against subcontractors.
- Trial court dismissed underlying claims as barred by the statute of repose; subcontractors moved for summary judgment, and the court granted it in favor of the subcontractors.
- Brookfield appealed to preserve its third-party claims if the underlying judgment against Brookfield were reversed on appeal.
- This court reversed and remanded in Riverview, leaving the predicate for dismissalunenforceable and requiring reversal and remand of the third-party judgment.
- Subcontractors challenged ripeness, arguing that indemnity and contribution claims accrue only after payment; they also challenged ORCP 22 as unconstitutional.
- The court rejected the ripeness and ORCP 22 challenges, reversing and remanding the judgment as to Brookfield’s third-party claims against Zaikin, Anfilofieff, and Modern Tech; other dispositions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brookfield’s third-party claims are ripe. | Brookfield | Subcontractors argue claims are unripe until underlying liability is determined and paid. | Ripeness found; claims deemed present controversy. |
| Whether ORCP 22 allows unripe third-party claims and is constitutional. | Brookfield | ORCP 22 permits accelerated adjudication of contingent claims; no constitutional problem. | ORCP 22 constitutional; does not render claims nonjusticiable. |
| Whether the subcontractors’ jurisdictional challenge is valid. | Brookfield | Subcontractors contend lack of ripe controversy precludes jurisdiction. | Rejected; third-party claims justiciable and remanded. |
Key Cases Cited
- Riverview Condo. Assn. v. Cypress Ventures, 266 Or App 574 (2014) (contact with Brookfield; remand on underlying claims triggers remand on third-party claims)
- McIntire v. Forbes, 322 Or 426 (1996) (ripeness requires present facts, not contingent future events)
- Yancy v. Shatzer, 337 Or 345 (2004) (ripeness encompasses present vs. future contingencies)
- Menasha Forest Products Corp. v. Curry County Title, 234 Or App 115 (2010) (ripeness as degree; present vs. hypothetical events)
- Kahn v. Weldin, 60 Or App 365 (1982) (purpose of ORCP 22 to promote expeditious adjudication of contingent claims)
- Marton v. Ater Construction Co., LLC, 256 Or App 554 (2013) (ORCP 22 C(1) timeliness does not alter elements of third-party claims)
- Rains v. Stayton Builders Mart, Inc., 264 Or App 636 (2014) (ripe understood; actual payment not required before indemnity claim)