Village at North Pointe Condominiums Ass'n v. Bloedel Construction Co.
278 Or. App. 354
Lincoln Cty. Cir. Ct., O.R.2016Background
- Homeowners association (The Village at North Pointe) sued developers/contractors (Bloedel, Bloedel Construction, Big Sky) in 2008 for construction defects causing water intrusion; indemnity/contribution third-party claims were brought by Bloedel Construction against subcontractors (Belanger, Jagow).
- Plaintiff advanced five theories (negligence, negligent misrepresentation, nuisance/unreasonable interference, breach of fiduciary duty, and breach of three unit-sale contracts against Bloedel Construction); jury returned verdict for defendants on all claims.
- Trial court entered general judgment for defendants and supplemental judgments taxing fees/costs: Bloedel Construction awarded $481,000 in attorney fees plus costs; Belanger and Jagow awarded modest costs against plaintiff.
- Plaintiff appealed, raising juror-removal, fee apportionment/reasonableness, and third-party defendants’ cost awards; appellate court affirmed general judgment but addressed preservation and statutory/ discretionary bases for fees and costs.
- Appellate holdings: (1) juror-removal claim not preserved (except the voir dire challenge, which was affirmed); (2) attorney-fee award affirmed in amount but reversed/remanded to apportion out fees related solely to insurance-coverage work; (3) cost awards to Belanger and Jagow vacated and remanded because trial court relied on incorrect statute (ORS 20.096) and must reconsider under ORCP 68(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror removal of Frey | Frey’s relationship with bailiff created an objective bias requiring removal; denial violated right to impartial jury | No preserved legal basis was presented below for the argument that relationship alone required removal; peremptory challenges remained | Claim largely unpreserved; court affirmed denial of for-cause challenge raised at voir dire and declined to consider expanded constitutional theory on appeal |
| Fee apportionment between fee-generating (contract) and non-fee claims | Trial court should have segregated fees for non-fee claims and for work done for co-defendant (Bloedel) and insurers | Claims and proof overlapped; issues were common so apportionment not required; some fees were incurred for insurance coverage matters | Court found litigated claims shared common issues, so no apportionment required, but remanded to segregate and exclude fees solely attributable to insurance-coverage work |
| Reasonableness and method of calculating attorney fees | Trial court should have examined/balked specific billing entries and sustained objections to redactions; cannot rely on aggregate or modified lodestar | Court may use expert testimony, billing statements, and ORS 20.075 factors; no fixed calculation method mandated | Trial court’s method and award ($481,000) not an abuse of discretion; billing detail was sufficient for the court’s approach |
| Third-party defendants’ recovery of costs against plaintiff | No statutory or rule authority to tax prevailing third-party defendants’ costs against plaintiff who did not sue them directly | ORCP 68(B) grants trial-court discretion to allow costs and decide against whom to tax them; comparative-fault statutes allow judgments against third-party defendants | Trial court erred relying on ORS 20.096; but ORCP 68(B) could authorize taxing third-party defendants’ costs to plaintiff; awards vacated and remanded for proper discretionary reconsideration under ORCP 68(B) |
Key Cases Cited
- State v. Montez, 309 Or. 564 (trial court’s juror-qualification decision entitled to great weight)
- Bennett v. Baugh, 164 Or. App. 243 (apportionment exception where claims share common issues)
- R & C Ranch, LLC v. Kunde, 177 Or. App. 304 (review of apportionment for abuse of discretion)
- Vertopoulos v. Siskiyou Silicates, Inc., 177 Or. App. 597 (apportionment between jointly represented defendants addressed as discretionary reasonableness)
- Sherwood Park Business Center, LLC v. Taggart, 267 Or. App. 217 (interpretation of ORS 20.096 does not create fee liability for parties never alleged to be contract signatories)