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BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
CONSTRUCTION CONTRACTORS BOARD
In the Matter of the Complaint of:
LANDSCULPTURE LLC,
Complaint No: 179500-101
Complainant
vs.
PROPOSED AND FINAL ORDER
UMPQUA CUSTOM HOMES INC.,
Respondent
HISTORY OF THE CASE
On January 7, 2009, the complainant timely filed this subcontractor complaint pursuant to
ORS 701.140, 701.143 and 701.145, alleging that respondent failed to pay complainant for
landscaping work it performed at 4435 SE Riesly, a small commercial project in Portland. The
respondent was licensed at the time the work was performed. Complainant was licensed with the
Landscape Contractors Board. The Construction Contractors Board (CCB) reviewed the matter and
concluded that “The only way to determine whether Mr. Stoelk actually entered into the contract as
a representative of the respondent corporation is to hold a hearing where sworn testimony can be
taken from both sides.” At the request of the CCB, complainant then filed a Statement of Damages
(Exhibit 20) seeking a total of $4,250.00.
On March 23, 2009, the CCB referred this matter to the Office of Administrative Hearings
to conduct binding arbitration of the matter, pursuant to ORS 701.148(1), and subject to the
provisions of ORS 701.148(4). Respondent timely filed a request for the matter to be heard as a
contested case under ORS Chapter 183. On June 8, 2009, Administrative Law Judge (ALJ) David
Marcus was assigned to hear the case.
On May 11, 2009, complainant filed a Motion for Summary Determination, seeking
dismissal of this complaint for lack of evidence that there was a direct contractual relationship
between the parties. A copy of the Motion was served on complainant. Complainant did not file
any response to the Motion. Following assignment of this matter to the undersigned ALJ, attempts
to set a teleconference with the parties prior to the scheduled hearing were unsuccessful, and ruling
on respondent’s Motion was deferred to the time of hearing.
The hearing in this matter was conducted on June 24, 2009, in Salem, Oregon. Notice of
Hearing was served on the parties by the Office of Administrative Hearings, in accordance with
ORS 701.117. The complainant failed to appear for the hearing. The respondent appeared through
its sole corporate shareholder, Richard Todd.
Landsculpture LLC v. Umpqua Custom Homes Inc., CCB complaint no. 179500-101 Page 1 of 4
ISSUE
Whether complainant had a direct contractual relationship with respondent for the unpaid
work asserted in this matter by complainant.
EVIDENTIARY RULING
Exhibits 1 through 67 were all admitted into evidence without objection. The hearing was
concluded and the record was closed on June 24, 2009.
FINDINGS OF FACT
1. On or about August 11, 2008, complainant entered into an agreement to perform
landscaping work for Steve Stoelk at 4435 SE Riesly in Portland. The total contract price was
$14,000.00. Complainant received payments totaling $10,000.00, but none of those payments were
made by respondent. Complainant later billed an additional $250.00 for debris removal at the site.
Complainant has received no further payments (Ex. 2-8, 62.)
2. Complainant sent subsequent statements and invoices to Steve Stoelk/Todd William
Richard, Danica States Subdivision and Umpqua Custom Homes LLC. (Ex. 4-8.)
3. Respondent corporation was in no way involved with any projects at SE Riesly in
Portland. Richard Todd was and is the sole shareholder in Umpqua Custom Homes Inc., which has
never commenced doing business due to the economy. Steve Stoelk was not an authorized agent
for respondent. (Ex. 61, 62 & 65.)
CONCLUSIONS OF LAW
Complainant has failed to show that it had a direct contractual relationship with respondent
for the unpaid work asserted in this matter. A direct contractual relationship is a jurisdictional
requirement under OAR 812-004-0320(5) for acceptance of a complaint by the CCB. Accordingly,
respondent’s Motion for Summary Determination is granted pursuant to OAR 137-003-0580.
OPINION
The person making the complaint has the burden of proving the complaint. ORS
183.450(2); Salem Decorating v. National Council on Comp. Ins., 116 Or App, 170 (1992), rev den
315 Or 643 (1993). 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. Board of
Medical Examiners, 159 Or App 175, 180 (1999). Under OAR 812-004-0535, complainant must
prove that complainant suffered damages, that those damages were caused by the respondent and
that the monetary value of those damages is substantiated on the record. Pursuant to OAR 812-
009-0100, “If the complainant does not carry this burden of proof, the administrative law judge
must dismiss the complaint.”
Respondent filed its Motion for Summary Determination pursuant to OAR 137-003-0580.
Under section (6) of that rule, the ALJ is required to grant the motion when there is no genuine
issue as to any material fact and the party filing the motion is entitled to a favorable ruling as a
Landsculpture LLC v. Umpqua Custom Homes Inc., CCB complaint no. 179500-101 Page 2 of 4
matter of law. Complainant has not responded to respondent’s Motion, which was accompanied by
an affidavit of Mr. Todd and other supporting documentation. There appears to be no genuine
issue as to any material fact, in particular that Mr. Stoelk did not enter the contract with
complainant as an agent of the respondent. Under OAR 812-004-0320(6), the CCB cannot accept
and process the complaint unless complaint shows that there was a direct contractual relationship
between it and respondent. I therefore conclude that respondent is entitled to a favorable ruling as
a matter of law.
ORDER
This complaint is dismissed.
Dated this 25th day of June, 2009
David Marcus, Administrative Law Judge
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:
Assistant to Dispute Resolution Manager
Landsculpture LLC v. Umpqua Custom Homes Inc., CCB complaint no. 179500-101 Page 3 of 4
Construction Contractors Board
PO Box 14140
Salem, OR 97309-5052
Landsculpture LLC v. Umpqua Custom Homes Inc., CCB complaint no. 179500-101 Page 4 of 4
