BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS by HC120727015432

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									                BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                              STATE OF OREGON
                                      for the
                         CONSTRUCTION CONTRACTORS BOARD


In the Matter of the Arbitration between:

ALI and POUSAN SHADBEH,                                         Arbitration Claim No: 132369-101
Claimant

and                                                                 ARBITRATION AWARD
LONG DANG BUI, dba
TOM ROOFING & GENERAL CONTRACTOR,
Respondent

                                  STATEMENT OF THE CASE

         This arbitration claim was timely filed in accordance with ORS 701.143. All items
determined are within the scope of ORS Chapter 701. All claim items determined require
licensing with the Board. Ali and Pousan Shadbeh (claimants) allege that Long Dang Bui dba
Tom Roofing & General Contractor (respondent) breached the parties’ contract by failing to
install a roof on their house located at 9792 S.W. Summit Avenue in Gaston, Washington
County, Oregon. Claimants seek monetary damages in the amount of $147,782. On June 22,
2006, CCB conducted an on-site investigation and referred the dispute to hearing.

       On September 20, 2006, pursuant to its authority under ORS 701.148(1), and subject to
the provisions of ORS 701.148(4), CCB referred this matter to the Office of Administrative
Hearings, as required under ORS 701.149, for binding arbitration, in accordance with OAR
Chapter 812, Division 10. A Notice of Arbitration Hearing, along with a copy of OAR Chapter
812 Division 10, was served on the parties.

       On January 31, 2007, Arbitrator Catherine P. Coburn convened an arbitration hearing in
Beaverton, Oregon. Attorney Steven C. Burke represented claimants. Respondent appeared
without counsel and Helen Burton served as interpreter. Respondent’s corporate liability
insurance agent, Richard Sorem, and Safeco Senior Special Investigator Nicole Nejedlo attended.
Claimant testified on his own behalf and called David Grigoris, Philip Nelson and Rick Sekne as
witnesses. Respondent testified on his own behalf and called Quoc D. Bui as a witness.

       On February 21, 2007, I reconvened the arbitration hearing for closing argument by
telephone from Beaverton, Oregon. Attorney Steven C. Burke represented claimant. Attorney
Angela M. Stewart represented respondent and Narim Kim served as interpreter. Pursuant to
OAR 137-003-0615, and over claimant’s objection, I took official notice of the Record of
Climatological Observations from the Forest Grove and Dilley stations in Washington County,
Oregon for February and March 2005, which were printed from the National Oceanic and
Atmospheric Administration website. I left the record open until 5 p.m. on February 28, 2007 to

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allow claimant the opportunity to offer rebuttal weather evidence. Accordingly, claimant’s
Supplemental Exhibit C42, sent by facsimile on February 26, 2007, was admitted into the record.
The record closed on February 28, 2007.

       CCB Exhibits 1 through 227, as well as C1, C2, C42 and C43 were admitted into the
record without objection. R1 was admitted into the record over claimant’s relevance objection.
C3 through C41 were submitted untimely and were not admitted into the record. Claimant’s
Supplemental Exhibit C42 was admitted into the record without objection.

        Having duly heard the proofs and allegations of the parties, and having considered the
entire record, consisting of admitted exhibits and a digital recording of the arbitration hearing, I,
the undersigned Arbitrator, enter the following:

                                             FINDINGS

Jurisdiction

        ORS 701.140 provides in pertinent part:

                A claim made against a licensed contractor’s bond required by
                ORS 701.085 must arise from the performance, or a contract for
                the performance, of work that is subject to this chapter. The claim
                must be of one or more of the following types:
                        (1) A claim against a contractor by the owner of a structure
                or other real property for the following:
                        (a) Negligent work.
                        (b) Improper work.
                        (c) Breach of contract.

        Additionally, OAR 812-004-0320 specifies CCB jurisdictional requirements and provides
in pertinent part:
                (5) Complaints will be accepted only when one or more of the
                following relationships exist between the complainant and the
                respondent:
                (a) A direct contractual relationship based on a contract entered
                into by the complainant and the respondent, or their agents;

        The first question is whether a valid, binding contract existed between the parties.
Claimant asserts that the parties entered into an agreement whereby respondent agreed to install a
new roof on claimant’s existing house and that respondent failed to perform. Claimant further
asserts that respondent breached the parties’ contract by failing to perform, leaving the house
exposed to inclement weather and resulting in extensive interior damage. As explained below, I
find that there was no contract between the parties.

          The term “contract” is defined as follows:


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CCB Claim No.: 132369-101
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                  An agreement between two or more persons which creates an
                  obligation to do or not to do a particular thing. Its essentials are
                  competent parties, subject matter, a legal consideration, mutuality
                  of agreement, and mutuality of obligation. Black’s Law Dictionary
                  291-292 (5th ed 1979).

          "Whether a contract existed is a question of law." Ken Hood Construction v. Pacific
Coast Construction, 201 Or App 768, adh'd to as modified on recons, 203 Or App 768 (2006).
At least as to a contract's essential terms, a valid contract exists only when there is a meeting of
the minds and where all terms are either agreed upon or there is a method agreed upon by which
open and disputed terms can be settled, such that nothing is left for future negotiation. Phillips v.
Johnson, 266 Or 544, 555-56 (1973). "Oregon subscribes to the objective theory of contracts. In
determining whether a contract exists and what its terms are, we examine the parties' objective
manifestations of intent, as evidenced by their communications and acts." Ken Hood
Construction, 201Or App at 578. "[W]hether parties enter into a contract does not depend on
their uncommunicated subjective understanding; rather, it depends on whether the parties
manifest assent to the same express terms." Newton/Boldt v. Newton, 192 Or App 386, 392
(2004). Questions regarding the intent of the parties are for the factfinder. Bennett v. Farmers
Ins. Co., 332 Or 138, 157 (2001).

          The communications that passed between the parties did not form a valid, binding
contract for several reasons. To begin, there was no consideration; to date, claimant has paid no
financial remuneration to respondent. For this reason alone, the contract fails.

          Next, the parties’ lacked mutuality of agreement. Claimant contacted respondent by
telephone to obtain a bid and misrepresented the pitch, condition and preparation of the roof.
When respondent arrived on site, he observed that the roof did not comport with claimant’s
representations over the telephone. Moreover, claimant handwrote additional terms to the
written proposal and respondent did not agree to these new terms. Furthermore, respondent did
not assent to the new terms claimant unilaterally added to the written proposal. Respondent
credibly testified that he performed no work on the roof, but only assisted claimant because
claimant had previously removed extensive portions of the roof. Respondent’s testimony in this
regard is consistent with his report to the CCB investigator.

           In conclusion, the record establishes that the parties did not reach a meeting of the
minds concerning the roof, exchanged no consideration, and did not enter into a valid, binding
contract.1 Because there was no direct contractual relationship between the parties, CCB lacks
jurisdiction, and therefore, I dismiss the claim.

       Based on these Findings, and in accordance with ORS Chapters 701 and 36, and OAR
Chapter 812 Division 10, I enter the following:

1
 Even if the parties’ had entered into a valid, binding contract, claimant has failed to carry his burden of presenting
evidence to establish that respondent caused damage to the house. Rather, claimant, who is a licensed construction
contractor and a licensed real estate broker, removed extensive portions of the roof on his own 80 year-old house in
Gaston, Oregon in February, leaving it exposed to inclement weather.


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                                               AWARD

        Claim number 132369-101 is dismissed.

        Dated this 15th day of March, 2007



                                                   _________________________________
                                                   Catherine P. Coburn
                                                   Arbitrator




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