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Defective Construction Work Prevents Foreclosure of Lien
Description Appeals court affirmed decision of trial court that plaintiff contractor's work was improper, causing damage to defendant. Hence, defendant would be awarded damages, and plaintiff's construction lien, which is an equitable claim, was denied after de novo review.
Topic Real and Personal Property
Key Words Lien, Construction Lien, Foreclosure, Breach of Contract
C A S E   S U M M A R Y
Facts Bundy hired Bend to install a liner in a pond. The day after the liner was installed, part of a retaining wall built by Bundy collapsed into the pool, tearing the liner. Bend repaired the liner, but water leaked rapidly. Bundy refused to pay Bend until the leaking stopped. Bend contended the leak was Bundy's fault due to the wall collapse, and filed a construction lien for the amount of the contract. Bend later sued to foreclose its lien and for breach of contract. Bundy countersued for breach of contract for defective work. Trial court determined that the liner was improperly installed, causing the wall to collapse, and awarded Bundy $50,000 damages. Bend appealed.
Decision Affirmed. "Because a claim to foreclose a construction lien is an equitable claim, we review the decision on that claim de novo." When reviewed on appeal, the trial evidence, including expert testimony and the parties’ photographic records, indicate the trial court concluded correctly that the liner was improperly installed. Hence, Bend was not entitled to foreclose his construction lien.
Citation Bend Tarp and Liner, Inc. v. Bundy, 154 Or.App. 372, ---P.2d--- (Ct. App., Ore., 1998)
961 P.2d 857

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