Notice of Review and Appeal Rights by abstraks

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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:

RUSSELL A. STONE,                                                       File No: 173396-101
Complainant
                                                                      ARBITRATION AWARD
and

DREAMSCAPE GENERAL CONTRACTOR, LLC,
Respondent


                                     HISTORY OF THE CASE

        Complainant Russell A. Stone filed this complaint with the Construction Contractors
Board (CCB) on April 11, 2008, alleging that respondent breached a contract to perform
construction work on complainants’ property at 14495 SE Micah Street, Happy Valley, Oregon.
The CCB did not issue a proposed order. Complainant filed a Statement of Monetary Damages
for $9,107.

       On October 31, 2008, the 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 7, 2008, the OAH served a Notice of Arbitration Hearing on the parties,
setting the matter for arbitration on January 12, 2009, and including a copy of the administrative
rules contained in OAR chapter 812, division 10. On December 8, 2008, both parties
participated in a telephone prehearing conference.

        The arbitration proceeded as scheduled in Salem, Oregon, before Arbitrator James W.
Han. Complainant appeared and testified. No one appeared on respondent’s behalf. The record
consists of the hearing recording and Exhibits 1 through 70, which were admitted into evidence
at the hearing without objection.

                                             FINDINGS

       On about August 31, 2007, complainant hired respondent to complete the excavation of
his property and to build a foundation for a residential structure on the property. Respondent
charged $4,320 for the excavation and $17,000 for the foundation work, for the total price of
$21,320. Complainant paid respondent $10,000 before respondent stopped work on the project.




Stone v. Dreamscape General Contractor LLC, CCB File No. 173396-101
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        Complainant had placed stakes at all corners of the house’s planned foundation.
Complainant showed respondent the stakes and asked him to excavate the dirt two or three feet
past the stakes. After three days work, respondent told complainant that he had completed the
excavation work. Respondent had excavated only up to the stakes, not past them, and he did not
excavate the entire east side of the lot. Respondent did no work on the foundation.

        Respondent refused to do any more work unless complainant paid respondent $2,630 for
the use of a track hoe and loader to load the excavated dirt. Respondent based its demand on the
contract provision that complainant would be responsible for “all trucking [and] disposal.”
Complainant refused to pay respondent’s invoice, believing that the contract price included the
cost of loading the dirt for removal. Complainant had neither agreed to nor signed any change
orders.

        The evidence at the hearing established that respondent breached the contract by failing
to complete the excavation. Respondent did not participate in the hearing and presented no
evidence that respondent agreed to or should pay extra for dirt loading. Respondent’s bid stated
that complainant would be responsible for the “trucking and disposal,” not the loading of the dirt.
Complainant reasonably believed that the contract price included the loading of dirt. The
reasonableness of Complainant’s belief is confirmed by the fact that after the dispute arose,
respondent gave complainant another invoice in which he specified that the excavation work
included the loading of dirt but not the trucking or hauling. (Ex. 17.) In yet another invoice,
respondent specifically excluded the cost of loading from the contract price. (Ex. 20.) If the cost
of loading was to be an extra charge, respondent could and should have made that explicit in the
original bid he presented to complainant. Moreover, respondent could and should have obtained
complainant’s consent to extra charges for loading the dirt.

       Complainant paid respondent in full for the excavation work. Complainant did not
present evidence of the cost to complete the excavation. Instead, Complainant estimated that
respondent should be paid $2,300 and refund $2,020 of the excavation costs to complainant.
Complainant presented no basis for this calculation.

        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 $2,000 for the cost to complete the excavation.

        Complainant paid respondent $5,680 more than the total excavation price. This excess,
then, should be deemed a partial payment for the foundation work. Complainant is entitled to an
award of this amount because respondent performed no work on the foundation.

        Complainant paid or will pay another contractor $740 to clean up the site after respondent
stopped work, $417.50 to hub and tack the property, and $250 to replace trees respondent ripped
out during the excavation. Complainant is entitled to an award for these items.




Stone v. Dreamscape General Contractor LLC, CCB File No. 173396-101
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        Based on the foregoing, and in accordance with ORS chapter 701 and OAR chapter 812,
division 10, I conclude that respondent’s breach of contract damaged complainant as follows:

        Unfinished excavation work                   $2,000.00
        Foundation work                              $5,680.00
        Clean up                                     $ 740.00
        Hub and tack                                 $ 417.50
        Tree replacement                             $ 250.00

        Total                                        $9,087.50

        Complainant is also entitled to recover the $50 processing fee. Therefore, I hereby enter
the following:

                                               AWARD

       Respondent shall pay complainant $9,087.50 plus the $50 processing fee, for a total of
$9,137.50.


Dated this 10th day of February, 2009




                                                    James W. Han, Arbitrator




Stone v. Dreamscape General Contractor LLC, CCB File No. 173396-101
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