97 Or. App. 583 776 P.2d 1306

Argued and submitted May 24,

affirmed July 19, 1989

BECERRIL, Respondent, v. HAKANSON et al, Appellants.

(87-CV-0948; CA A49664)

776 P2d 1306

Roger Gould, Coos Bay, argued the cause for appellants. With him on the brief was Joelson, Gould, Wilgers and Dorsey, P.C., Coos Bay.

Cameron Thom and Thom, Gant & Whitty, Coos Bay, filed the brief for respondent.

Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.

EDMONDS, J.

*585EDMONDS, J.

In this action to foreclose a construction lien and to recover damages for breach of contract, defendants appeal from a judgment awarding damages to plaintiff. We affirm.

Plaintiff, a building contractor, and defendants were parties to a contract under which defendants employed plaintiff to construct a residence. When the residence was 75 percent complete, a meeting took place between plaintiff and one of the defendants. At the conclusion of the meeting, plaintiff considered himself “terminated.” Plaintiff recorded a construction lien and later commenced this action.

The complaint contained two claims for relief. In the first claim, plaintiff sought to foreclose a construction lien. In the second claim, he alleged that he had suffered lost “earnings from labor and construction profit” caused by defendants’ wrongful breach of the contract. Defendants affirmatively alleged that plaintiffs lien contained non-lien-able items and also counterclaimed for damages, alleging that plaintiff had abandoned the contract and had performed in an unworkmanlike manner. Defendants requested a jury trial on their counterclaim. The trial court ordered that the jury hear all of the claims and render an advisory verdict on the validity of the lien. See ORCP 51D. The jury awarded plaintiff damages on both claims and found against defendants on their counterclaim. After the verdict, the trial court disallowed plaintiffs lien but ruled that plaintiff was entitled to damages under both claims.

On appeal, defendants contend that the trial court erred in entering a judgment that awarded plaintiff damages under his first claim.1 They concede that a plaintiff whose lien *586fails may recover damages under ORS 87.060(3) without pleading a separate claim. See DeWitt-Erickson Const., Inc. v. Moran Const. Co., 86 Or App 474, 477-78, 739 P2d 1071, rev den 304 Or 280 (1987). However, they argue that plaintiffs two claims are alternative theories of recovery for the same damages, and that recovery cannot be had under both.2

We disagree. Plaintiffs two claims were pled and presented to the jury as claims for different damages, rather than as alternative claims for the same damages. The first claim sought damages for material and labor provided by plaintiff to defendants; the second claim sought damages for lost profits caused by the wrongful breach of the contract. Although plaintiffs testimony at trial indicated that some items of damage may have been included in both claims, the verdict and judgment are consistent with that testimony.3 Further, if defendants wanted to object to any pleading defects, they should have done so in the trial court. They did not.4

Affirmed.

Becerril v. Hakanson
97 Or. App. 583 776 P.2d 1306

Case Details

Name
Becerril v. Hakanson
Decision Date
Jul 19, 1989
Citations

97 Or. App. 583

776 P.2d 1306

Jurisdiction
Oregon

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