BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
CONSTRUCTION CONTRACTORS BOARD
IN THE MATTER OF: ) PROPOSED and FINAL ORDER
)
DEBRA JOHNS and RICHARD JOHNS, )
Claimants )
)
vs. )
)
TAYLOR JOHNS dba JCI CONSTRUCTION, )
Respondent ) Claim No. 146084-109
HISTORY OF THE CASE
On September 30, 2005, the claimants filed a claim pursuant to ORS Chapter 701 alleging that the
respondent breached the parties’ contract for the construction of a single family residence located at:
285 SW 59th Street, Redmond, Oregon. The respondent was licensed at the time the work was performed.
On June 15, 2006, the Construction Contractors Board (CCB) conducted an on-site investigation; the
claimants participated but the respondent failed to appear.
On August 25, 2006, the CCB issued a Proposed and Final Order of Dismissal. The claimants
timely appealed the order. On September 27, 2006, the CCB referred the matter to the Office of
Administrative Hearings (OAH) to conduct a contested case hearing.
A Notice of Hearing dated September 27, 2006 was served on the parties by the Office of
Administrative Hearings in accordance with ORS 701.080 wherein a contested case hearing was
scheduled for December 20, 2006 in Salem, Oregon. Administrative Law Judge (ALJ) Vance Bybee
was assigned to hear the case.
On December 20, 2006, ALJ Bybee opened the record of the contested case hearing. The
claimants appeared pro se; the respondent failed to appear. During the hearing, the claimants raised
some issues that resulted in the Administrative Law Judge continuing the hearing to March 1, 2007 to
allow the claimants to consult with the CCB regarding the processing of their claim.
On March 1, 2006, ALJ Bybee continued the hearing. At that time, the pro se claimants again
appeared in person; the respondent failed to appear.
ISSUES
1. Whether CCB claim no. 146084-109 should be dismissed because the claimants’ damages are
less than the amount due to the respondent from the claimants under the terms of the parties’ contract
(OAR 812-004-0550); and if not,
2. Whether the respondent is liable to the claimants for damages of $46,814.71 or any lesser
amount (ORS 701.140).
EVIDENTIARY RULING
The record of the hearing is comprised of Exhibits 1 – 154 and C-155 – C-209 and the
claimants’ testimony. The record of the hearing closed on March 1, 2006.
FINDINGS OF FACT
1. The claimants entered into a contract for the construction of a single family residence located at:
285 SW 59th Street, Redmond, Oregon. In return for the construction of the residence, the claimants agreed
to pay the respondent $255,998; the claimants paid the respondent a total of $227,531. The claimants owe
the respondent $28,466 to complete the contract. (Testimony of the claimants.)
2. The respondent failed to pay several subcontractors. Consequently the subcontractors
placed liens on the claimants’ property. The claimants paid $21,371 to have the liens removed.
(Testimony of the claimants.)
3. The respondent did not pay for the heat system he installed. Upon threat of filing a lien by the
supplier, the claimants paid for the heat system to avoid another lien. The claimants paid $4,345 to the
supplier. (Testimony of the claimants.)
4. The respondent did not pay for the interior trim to be installed; the claimants paid the
subcontractor $1,420 for materials and $3,650 for the installation of the interior trim. (Testimony of
the claimants.)
5. The respondent did not pay for the fireplace to be installed; the claimants paid the mason $4,018
for materials and installation of the fireplace. (Testimony of the claimants.)
6. The respondent did no pay for the cabinetry to be installed; the claimants paid the cabinet maker
$1,997 for the installation. (Testimony of the claimants.)
6. The respondent did not provide any kitchen appliances. The contract provided for a $2,500
allowance for appliances. (Testimony of the claimants.)
7. The respondent did not provide any flooring materials. The contract provided for a $4,000
allowance for flooring materials. (Testimony of the claimants.)
8. Without notice, the respondent abandoned the claimants’ construction project. At the time the
respondent abandoned the project, the following items were incomplete: vacuum system ($1,124), front
and back porches ($1,465), septic system ($4,593), rough plumbing ($5,035), finish plumbing ($1,817),
interior mirrors and glass ($994), gutters ($396), garage doors ($3,700), interior and exterior paint ($4,330)
finish electric ($3,381), driveway (3,000). The claimants paid other contractors a total of $29,835 to
complete the construction the respondent left incomplete. (Testimony of the claimants.)
CONCLUSIONS OF LAW
1. The respondent is liable to the claimants in an amount that exceeds the amount due to the
respondent from the claimants under the terms of the parties’ contract; therefore, CCB claim
no. 146084-109 is valid and shall be adjudicated (OAR 812-004-0550); and,
2. The respondent is liable to the claimants for $44,670 in damages. (ORS 701.140).
In the Matter of Johns v. Johns, Claim No. 146084-109 Page 2 of 5
OPINION
Burden of Proof
ORS 183.450(2) provides, in part, “The burden of presenting evidence to support a position in a
contested case rests on the proponent of the fact or position.” The claimants filed a claim against the
respondent and maintain that their claim is valid. Therefore, the burden is on the claimants to establish that
they have a valid claim against the respondent. See Garton v. Real Estate Commissioner,
127 Or App 340, 342 (1994). Moreover, the claimants also have the burden to prove that they have
suffered damages, that the damages were caused by the respondent, and the reasonable cost to cure the
damages. OAR 812-004-0535; OAR 812-009-0100. In a contested case proceeding, the standard by
which a party must prove the facts asserted is by a “preponderance of the evidence.” ORS 183.450(5);
Gallant v. Bd. of Medical Examiners, 159 Or App 175, 180 (1999). Regarding the establishment of the
burden of proof, it is noted that at all stages of the administrative process, the respondent failed to appear
and participate; therefore, the claimants’ evidence is uncontroverted.
Dismissal
The CCB proposed that the claimants’ claim against the respondent be dismissed, finding that
the amount of monetary damages sustained by the claimants was less than the amount due to the
respondent from the claimants under the terms of the parties’ contract. The CCB’s proposed dismissal
is in error. The amount unpaid on the parties’ contract is $28,466. The amount of damages suffered by
the claimants, as discussed infra, is $73,136. Inasmuch as the claimants’ damages exceed the amount that
remains unpaid on the parties’ contract, the claimants’ claim is valid.
Damages
Offset
In return for the construction of a single family residence located at: 285 SW 59th Street, Redmond,
Oregon, the claimants agreed to pay the respondent $255,998. The claimants paid the respondent a total of
$227,531. Therefore, the claimants still owe the respondent $28,466. Therefore, any damages for which
the respondent is found liable shall be offset by $28,466.
Liens
The respondent failed to pay several subcontractors. Consequently the subcontractors placed
liens on the claimants’ property. The claimants paid $21,371 to have the liens removed. Therefore,
the claimants are entitled to damages totaling $21,371.
Additional Unpaid Contractors
The respondent failed to pay for the labor and/or materials to have the following work
performed: heating system installation, interior trim installation, fireplace construction, and cabinetry
installation. The claimants paid $15,430 to have the work completed. The respondent is liable to the
claimants in that amount.
In the Matter of Johns v. Johns, Claim No. 146084-109 Page 3 of 5
Materials
The contract between the claimants and the respondent provided for a $2,500 allowance for
kitchen appliances and $4,000 for flooring materials. The respondent did not supply either the
appliances or the floor coverings. The claimants purchased appliances and floor coverings for their
new residence. Therefore, the respondent is liable to the claimants in the amount of $6,500 for
materials he did not supply.
Contract Completion
Without notice, the respondent abandoned the claimants’ job-site. Thereafter, the claimants
were forced to hire other contractors to complete the work the respondent had contracted to perform.
The claimants paid other contractors a total of $29,835 to have the work completed. Therefore, the
respondent is liable to the claimants in that amount.
Total Damages
The claimants paid a total of $73,136 to supply materials, correct work, and complete
construction on the residence that the respondent had agreed to construct for the claimants. Inasmuch
as the claimants still owe the respondent $28,466, that amount is deducted as an offset from the total
damages the claimants are entitled to recover. Therefore, the respondent shall pay the claimants a total
of $44,670 in monetary damages ($73,136 - $28,466).
Processing Fee
Pursuant to ORS 701.147(7),(8) and OAR 812-004-0250(2)(c), the claimants are eligible to
recover the $50 claim processing fee.
ORDER
It is hereby ordered that:
1. The respondent is liable to the claimants in an amount that exceeds the amount due to the
respondent from the claimants under the terms of the parties’ contract; therefore, CCB claim
no. 146084-109 shall be processed (OAR 812-004-0550); and,
2. The respondent shall pay the claimants $44,720 ($44,670 [damages] + $50 [claim
processing fee]). (ORS 701.140).
Dated this 20th day of March, 2007
_________________________________
Vance Bybee, Administrative Law Judge
Office of Administrative Hearings
In the Matter of Johns v. Johns, Claim No. 146084-109 Page 4 of 5
NOTICE OF REVIEW AND APPEAL RIGHTS
As provided in ORS 183.460, any party that disagrees with this Proposed and Final Order may file
written exceptions, including argument. If you choose to file exceptions, carefully follow the instructions
enclosed with this order. Mail your exceptions to the Construction Contractors Board (CCB) at the address
provided below. CCB must receive written exceptions on or before the 21st day after this order was mailed
to the parties. If CCB does not receive your written exceptions on or before the 21st day after this order
was so mailed, your exceptions will not be considered.
If exceptions are timely received, CCB will send the opposing party a copy of the written
exceptions. At the same time, CCB will send both parties information and guidelines for participating in
the exceptions process. Thereafter, the Construction Contractors Board Appeal Committee (Appeal
Committee) will consider the exceptions at an Appeal Committee meeting. This will not be a new
hearing. The Appeal Committee will only review the original hearing record and this order. The Appeal
Committee will not consider evidence that was not a part of the original hearing record.
If CCB does not timely receive exceptions, this order will automatically become final on the 21st
day following the date of issuance of this order, unless CCB requests the ALJ to review and consider
revising the order. OAR 812-009-0160. If this order becomes final, you are entitled to request judicial
review pursuant to the provisions of ORS 183.482, by filing a petition for judicial review with the Court of
Appeals within 60 days from the date that this order becomes final. Mail any exceptions or a copy of any
petition for judicial review to:
Construction Contractors Board
Attn: Claims Resolution Section
700 Summer Street NE Suite 300
PO Box 14140
Salem, OR 97309-5052
In the Matter of Johns v. Johns, Claim No. 146084-109 Page 5 of 5