Riverview Condominium Ass'n v. Cypress Ventures, Inc.
Riverview Condominium Ass'n v. Cypress Ventures, Inc.
Opinion of the Court
This appeal relates to the same construction litigation as our decision in Riverview Condo. Assn. v. Cypress Ventures (A150586), 266 Or App 574, 339 P3d 447 (2014). Whereas Riverview Condo. Assn. (A150586) involved claims by the condominium association against, among others, Brookfield Development, Inc. (Brookfield), which was the general contractor that built the condominiums, this appeal concerns Brookfield’s third-party claims for contribution and indemnity against its subcontractors.
In Riverview Condo. Assn. (A150586), that contingency came to pass: We reversed the judgment in Brookfield’s favor and remanded the condominium association’s construction-defect claims for further proceedings. 266 Or App at 611. Hence, the predicate for the trial court’s ruling — i.e., dismissal of the underlying claims — is gone, and the appropriate remedy is to reverse and remand the judgment on the third-party claims as well.
Two of the subcontractors, however, raise a jurisdictional challenge that, in their view, precludes that remedy.
The subcontractors acknowledge that, for more than three decades, ORCP 22 has allowed a third-party complaint to be filed against a party “who is or may be liable to the third party plaintiff for all or part of the plaintiffs claim against the third party plaintiff.” See Kahn v. Weldin, 60 Or App 365, 371, 653 P2d 1268 (1982), rev den, 294 Or 682 (1983) (explaining that the purpose of the “may be liable” language in Rule 22 “is to promote the expeditious and economical adjudication in a single action of the entire subject matter arising from a set of facts, including claims contingent on the determination of other issues in the case”);
We are not persuaded by the subcontractors’ ripeness arguments, which would unreasonably restrict the ability of courts to decide what are genuine and present controversies between potentially liable parties. “ [R]ipeness depends on whether the controversy involves present facts as opposed to hypothetical future events.” Menasha Forest Products Corp. v. Curry County Title, 234 Or App 115, 120, 227 P3d 770 (2010), rev’d in part on other grounds, 350 Or 81, 249 P3d 1265 (2011). However, as we have previously noted, “‘[p] resent facts’ and ‘hypothetical future events,’ *** do not announce themselves as such,” and “[rjipeness is often a matter of degree.” Id. at 120-21. The fact that a controversy might involve some unsettled questions or contingencies does not, by itself, render the case “unripe” or mean that the controversy as a whole is “contingent” and therefore not justiciable. See, e.g., Mclntire, 322 Or at 434 (concluding that, although operation of the legislation challenged in that case was “contingent” on funding that “may or may not be committed[,]” “[t]hat uncertainty * * * does not prevent ripeness for decision”).
In our view, the third-party claims at issue in this case are based on present, as opposed to hypothetical, facts. The parties have a present dispute about their respective roles and responsibilities relating to the construction of the Riverview Condominium, and the only true contingency— discharge of the underlying liability — will flow directly from the resolution of issues within the case itself. We are not persuaded that such a minimal degree of “contingency”— given that the law presumes that Brookfield will satisfy any obligation to the condominium association and provides
Motion to dismiss denied. Judgment reversed and remanded as to third-party claims against Peter Zaikin, dba Anytime Construction, Mike Anfilofieff, dba Final Finish Carpentry, and Modern Tech Construction, Inc.; otherwise affirmed.
The subcontractors remaining as respondents are Peter Zaikin, dba Anytime Construction, Mike Anfilofieff, dba Final Finish Carpentry, and Modern Tech Construction, Inc.
Respondents Modern Tech Construction, Inc. and Peter Zaikin filed a motion to dismiss for lack of jurisdiction, and the Appellate Commissioner deferred the resolution of that motion to the merits panel.
See, e.g., ORS 18.150 (concerning judgment liens); ORCP 83 (provisional process); ORCP 84 (attachment); OEC 311(l)(f) (creating an evidentiary presumption that “[a]n obligation delivered to the debtor has been paid”).
Brookfield also brought a negligence claim against the subcontractors. That claim was dismissed for other reasons and is not at issue on appeal.
Reference
- Full Case Name
- RIVERVIEW CONDOMINIUM ASSOCIATION, an Oregon non-profit corporation v. CYPRESS VENTURES, INC., an Oregon domestic business corporation, Defendants BROOKFIELD DEVELOPMENT, INC., Third-Party v. Peter ZAIKIN, dba Anytime Construction Mike Anfilofieff, dba Final Finish Carpentry and Modern Tech Construction, Inc., an Oregon corporation, Third-Party Defendants-Respondents, and N.W. CUTTING EDGE CONST., INC., an Oregon corporation and Rain-Master Roofing, Inc., an Oregon corporation, Third-Party
- Cited By
- 4 cases
- Status
- Published