Notice of Review and Appeal Rights - Get as DOC

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                              STATE OF OREGON
                                    for the

In the Matter of the Complaint of:

MAX LIEBREICH                                                  File No: 133010-101
                                                           ARBITRATION AWARD


                                     HISTORY OF THE CASE

       Complainant Max Liebreich filed this complaint with the Construction Contractors Board
(CCB) on January 9, 2009, alleging that respondent Marcus Eugene Gorton, dba Marcus Gorton
Tile & Marble, performed negligent or improper work or breached a contract to perform
construction work at 210 Sunset, Eugene, Oregon. Complainant filed a Statement of Monetary
Damages for $10,563.20.

      On September 22, 2009, CCB referred this complaint for binding arbitration to the Office
of Administrative Hearings (OAH) pursuant to ORS 701.148 and 701.149 and Oregon
Administrative Rules (OAR) 812-004-0590. Neither party requested a contested case hearing.

        On November 4, 2009, the OAH served a Notice of Arbitration Hearing on the parties,
setting the matter for arbitration on January 6, 2010, and including a copy of the administrative
rules contained in OAR chapter 812, division 10.

      The arbitration proceeded as scheduled in Eugene, Oregon, before Arbitrator James W.
Han. Max Liebreich appeared and testified. Marcus Eugene Gorton appeared and testified.
Manuel Morgado testified for respondent.

        The record consists of Exhibits 1 through 100 and C1 through C12, which were admitted
into evidence at the hearing without objection.


        Complainant hired respondent under a written contract to install a granite kitchen
countertop and backsplash for $3,090 plus the cost of the granite. Respondent also orally agreed
to install two bathroom countertops for $400 each plus the cost of sink cut-outs and installation.
Respondent billed complainant $165 and $150 for the sink cut-outs. The total cost of the kitchen
and bathroom work was $4,205 ($3090 + $800 + $165 + $150). Complainant has not paid
respondent any of these amounts.

Liebreich v. Gorton, CCB File No. 1330101-101
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      A sink was not included in the contract price but respondent agreed to install a sink if
complainant provided one. Complainant provided a cast iron sink that respondent installed.

        Complainant selected and paid $4,300 for two granite slabs. The slabs were delivered to
respondent's shop where respondent and his worker joined the slabs into one piece. Respondent
and his workers then installed the countertop. They did not install a backsplash.

       The countertop had three cracks within an eight foot by four-foot section near the sink.
During the installation, complainant saw a crack on the countertop's front edge. Later that
evening, complainant saw two cracks that appeared to have been newly filled. Respondent told
complainant he would redo the slab installation if complainant would pay half the cost of a new

        At the left side of the countertop is a half-inch gap between the slab and the wall but the
right side is butted against the wall without a gap. Complainant told respondent that he intended
to install edging material that would cover the area where the countertop met the wall.
Complainant did not establish that the gap or lack of a gap was improper.

       Complainant submitted a contractor's estimates to install a replacement countertop for
$6,314 and a backsplash for $2,647. Respondent did not dispute the estimates but asserted that
the countertop could be repaired rather than replaced. Even so, complainant was entitled to a
countertop in new condition that did not need repairs. Complainant will be awarded these
amounts to replace the countertop and install a backsplash.

        Complainant also submitted a contractor's estimate to remove the granite countertop and
plywood sub-countertop, install a new plywood sub-countertop, and install supports for the
kitchen sink for $905. Complainant did not establish that a new plywood sub-countertop is
required; he did not rebut respondent's evidence that the granite is attached to the plywood by
adhesive and can be separated without damage. Neither complainant nor respondent submitted
evidence of the cost to remove the existing countertop without installing new plywood. An
arbitrator may order such remedies as the arbitrator considers just and appropriate under the
circumstances of the arbitration proceeding. ORS 36.695(3). Exercising my equitable authority,
I will award complainant $300 for the cost to remove the existing countertop.

       Complainant also claimed $697.20 for a replacement sink in case the sink would be
damaged when removed. Complainant's contractor's estimate stated, "Removal of kitchen sink
from granite without damage i[s] not part of this bid." However, complainant presented no
persuasive evidence that the sink is likely to be damaged on removal. Therefore, no award will
be made for the cost of a replacement sink.

        Based on the foregoing, and in accordance with ORS chapter 701 and OAR chapter 812,
division 10, I conclude that respondent's improper work damaged complainant in the amount of
$9,261 ($6,314 + $2,647 + $300). Respondent is entitled to an offset of $4,205 for the unpaid
amount of the written and oral contracts, resulting in the total of $5,056. Complainant will be
awarded this amount.
        Complainant is also entitled to recover the $50 processing fee. Therefore, I hereby enter
the following:

Liebreich v. Gorton, CCB File No. 1330101-101
Page 2 of 3

        Respondent shall pay complainant $5,056 plus the $50 processing fee, for a total of

Dated this 9th day of February 2010.

                                                  James W. Han, Arbitrator

Liebreich v. Gorton, CCB File No. 1330101-101
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