Brown Contracting, Inc. v. ODOT

650

Argued and submitted January 6, 2021, affirmed February 16, 2022

BROWN CONTRACTING, INC.,

an Oregon corporation,

Plaintiff-Appellant,

v.

OREGON DEPARTMENT OF TRANSPORTATION,

Defendant-Respondent.

Marion County Circuit Court

18CV52643; A172658

504 P3d 1195

Mary Mertens James, Judge.

Jacob A. Zahniser argued the cause for appellant. Also

on the briefs were Ryan C. Hall and Miller Nash Graham &

Dunn LLP.

Robert M. Wilsey, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and

Armstrong, Senior Judge.

PER CURIAM

Affirmed.

Cite as 317 Or App 650 (2022) 651

PER CURIAM

Plaintiff Brown Contracting, Inc. (Brown) appeals

the supplemental judgment in which the trial court

granted summary judgment in favor of defendant Oregon

Department of Transportation (ODOT). ODOT hired Brown

to retrofit sidewalk ramps and corresponding sidewalks

and driveways. This dispute arises from Brown’s claim for

payment for some of that work under Bid Item #0240 of the

contract it had with ODOT. When ODOT denied the claim,

with the understanding that it had paid Brown for the work

under Bid Item #0290, Brown brought this breach of contract

action. ODOT moved for partial summary judgment, argu-

ing that there was no material dispute of fact that ODOT

had paid Brown under the terms of the contract. Brown

responded that the contract was ambiguous as to whether

it should be paid under Bid Item #0290 or Bid Item #0240.

The trial court sided with ODOT, and Brown reraises its

argument on appeal that the contract was ambiguous.

We have concluded that the trial court did not err

in granting summary judgment to ODOT. We have reached

that conclusion after having reviewed the summary judg-

ment record, drawing all reasonable inferences in Brown’s

favor, Whalen v. American Medical Response Northwest, 256

Or App 278, 280, 300 P3d 247 (2013); reviewing the issue

for legal error, Yogman v. Parrott, 325 Or 358, 937 P2d 1019

(1997) (whether contractual provisions are ambiguous is

a legal question); and applying our principles of contract

interpretation, Yogman, 325 Or 358; Batzer Construction,

Inc. v. Boyer, 204 Or App 309, 129 P3d 773, rev den, 341 Or

366 (2006). Once those standards are applied, there is no

genuine issue of material fact (ORCP 47 C) as to whether

Brown had been paid for the work for which it sought pay-

ment under Bid Item #0240, and ODOT was entitled to sum-

mary judgment.

Affirmed.