Notice of Review and Appeal Rights by X1C2SF7


                              STATE OF OREGON
                                    for the

In the Matter of the Arbitration between:

Discount Windows,                                                    File No: 174296-102
                                                                 ARBITRATION AWARD

Metro Construction & Design, Inc.,

                                     HISTORY OF THE CASE

        Complainant Discount Windows filed this complaint with the Construction Contractors
Board (CCB) on March 24, 2008, alleging that respondent Metro Construction & Design, Inc.,
failed to pay complainant’s invoices for materials delivered to respondent’s project at 1445
Amber Lane, Eugene, Oregon. On April 28, 2008, CCB issued a Proposed and Final Order that
ordered respondent to pay complainant $5,554.92. Respondent requested a hearing on May 13,

      On May 21, 2008, CCB referred this complaint for binding arbitration to the Office of
Administrative Hearings (OAH) pursuant to ORS 701.148 and Oregon Administrative Rules
(OAR) 812-004-0590. Neither party requested a contested case hearing.

       On July 21, 2008, the OAH served a Notice of Arbitration Hearing on the parties, setting
the matter for arbitration on September 24, 2008, and including a copy of the administrative rules
contained in OAR chapter 812, division 10. On August 21, 2008, the parties participated in a
prehearing conference.

       The arbitration proceeded as scheduled in Eugene, Oregon, on September 24, 2008,
before Arbitrator James W. Han. Victor Leupold appeared for complainant and testified. Lee
Brohel also testified for complainant. John Webb appeared for respondent and testified. Sanford
Trefethen testified on respondent’s behalf.

       The record consists of Exhibits 1 through 68, submitted prior to hearing, which were
admitted into evidence at hearing without objection.

Discount Windows v. Metro Construction & Design, Inc., CCB File No. 174296-102
Page 1 of 2

       Complainant sent two invoices for windows provided to respondent. The total of the
invoices was $4,567. Complainant acknowledged that respondent paid $2,000, leaving an
unpaid balance of $2,597. Complainant also claims finance charges on the unpaid balance.

      The unpaid amount relates to three windows respondent ordered from complainant. The
windows were too thick for the building’s frame and respondent rejected them.

        Complainant’s witness, Mr. Brohel, testified that he took the order from respondent’s
employee Russ Kuhns, who specified he wanted five feet by five feet, full-line, wide-frame,
insulated windows. Mr. Kuhns did not testify, but respondent’s witness testified that Mr. Kuhns
asked complainant to measure the windows but complainant forgot to measure them and instead
asked Mr. Kuhns to read off a number from one of the window tags. I conclude that Mr.
Brohel’s first-hand testimony is more convincing that respondent’s hearsay.

       Complainant did not stock these windows and had to specially order them. Complainant
cannot sell the windows for salvage value. Complainant is entitled to an award for the costs of
the windows.

        Complainant failed to prove it is entitled to recover finance charges on the unpaid
balance. Complainant presented no evidence of a contract allowing for finance charges and
failed to establish the proper amount of the claimed finance charges. No finance charges will be

        Based on the foregoing, and in accordance with ORS chapter 701 and OAR chapter 812,
division 10, I conclude that respondent damaged complainant in the amount of $2,597.
Complainant is entitled to recover the $50 processing fee.

        Therefore, I hereby enter the following:


        Respondent shall pay complainant $2,597 plus the $50 processing fee, for a total of

Dated this 22nd day of October, 2008

                                                     James W. Han, Arbitrator

Discount Windows v. Metro Construction & Design, Inc., CCB File No. 174296-102
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