Opinion
A177168
05-03-2023
KIZER EXCAVATING CO., an Oregon corporation, Plaintiff-Appellant Cross-Respondent, v. STOUT BUILDING CONTRACTORS, LLC, a Utah limited liability company, Defendant-Respondent Cross-Appellant.
Paul B. Barton, Alexander Graven, and Olsen Barton LLC, for petition. Holly E. Pettit, Peter J. Viteznik, Portland, and Kilmer, Voorhees & Laurick, PC, for response.
Paul B. Barton, Alexander Graven, and Olsen Barton LLC, for petition.
Holly E. Pettit, Peter J. Viteznik, Portland, and Kilmer, Voorhees & Laurick, PC, for response.
Before Egan, Presiding Judge, and Kamins, Judge, and Hadlock, Judge pro tempore.
EGAN, P. J.
Plaintiff Kizer Excavating Co., an excavation subcontractor on a commercial construction project in Dallas, Oregon, seeks reconsideration of our opinion holding that the trial court erred in determining that plaintiff could recover damages on its quantum meruit claim, and holding that defendant Stout Building Contractors, LLC, the general contractor, is entitled to judgment and attorney fees on plaintiff's breach of contract claim. Kizer Excavating v. Stout Building Contractors , 324 Or.App. 211, 525 P.3d 883 (2023). We write to allow reconsideration to correct our misstatement at 324 Or App at 219 n 2, 525 P.3d 883, that plaintiff did not dispute that defendant's challenge in its first assignment of error on cross-appeal was preserved. Plaintiff did, in fact, argue that the argument made in the first assignment of error was not preserved. As we previously noted at 324 Or App at 219 n 2, 525 P.3d 883, given the way the case was tried, we conclude that the argument made in the first assignment of error was preserved. As corrected, the footnote now reads:
"We view defendant's argument as the equivalent of a contention that the court mis-instructed itself on the law in concluding that the denial of the change order rendered the additional excavation extracontractual. Given the manner in which the case was litigated, we conclude that defendant's challenge is preserved."
Reconsideration allowed; opinion modified and adhered to as modified.