Shell v. Schollander Companies, Inc.
358 Or. 552
| Or. | 2016Background
- Plaintiff (Shell) purchased an existing spec house from defendant (Schollander) via a May 30, 2000 purchase-and-sale agreement; closing occurred July 12, 2000 after defendant made some agreed interior changes.
- Years later Shell sued for negligence, alleging defective exterior components (windows, siding, WRB, flashing).
- Defendant moved for summary judgment, producing evidence the acts/omissions alleged occurred before Shell signed the purchase agreement (more than 10 years before suit) and asserted ORS 12.115(1) (10-year repose from date of act/omission) as a bar.
- Shell argued ORS 12.135(1)(b) (10-year repose measured from substantial completion of construction) applied because a reasonable juror could find substantial completion occurred at closing, within 10 years of suit.
- Trial court granted summary judgment for defendant, Court of Appeals affirmed; Supreme Court allowed review and affirmed, holding ORS 12.135(1)(b) applies only to claims deriving from contracts to construct, alter, or repair improvements and ORS 12.115(1) governed Shell’s negligence claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which statute of repose governs negligence claims for defects in an existing home sold under a purchase-and-sale agreement: ORS 12.135(1)(b) (10 years from substantial completion) or ORS 12.115(1) (10 years from act/omission)? | ORS 12.135(1)(b) is the more specific statute and applies because substantial completion could be the sale/closing date, making the suit timely. | ORS 12.115(1) applies because the alleged negligent acts occurred before the purchase agreement and ORS 12.135(1)(b) only governs claims deriving from construction/alteration/repair contracts. | ORS 12.135(1)(b) applies only to claims that derive from contracts to construct, alter, or repair improvements; Shell’s negligence claims did not arise from such a contract, so ORS 12.115(1) governs and bars the suit. |
Key Cases Cited
- Cocchiara v. Lithia Motors, Inc., 353 Or 282 (standard for viewing facts on summary judgment)
- Lozano v. Schlesinger, 191 Or App 400 (construction of ORS 12.135 and contractor–contractee relationship)
- Vsetecka v. Safeway Stores, Inc., 337 Or 502 (statutory interpretation across subsections)
- PIH Beaverton, LLC v. Super One, Inc., 355 Or 267 (interpretation of "substantial completion" and contract-based acceptance)
- Securities-Intermountain v. Sunset Fuel, 289 Or 243 (legislative history regarding HB 1259 and repose timing)