Appellate Victory in Kizer v. Stout

May 2023 | by Kilmer Voorhees & Laurick

Holly Pettit and Pete Viteznik prevailed in the Oregon Court of Appeals in a case concerning both express and implied contract claims. KVL represented a general contractor which had hired a subcontractor to perform excavation at a construction site. The subcontractor exvacated a much greater volume of fill than either the bid or contract anticipated, without complying with the change order procedure allowed by the subcontract. The parties disagreed as to whether the subcontract was a fixed price contract or a unit price contract. The trial court ruled that the subcontract was a fixed price contract but allowed the subcontractor to recover additional amounts pursuant to the subcontractor’s alternative quantum meruit claim. The trial court denied attorney fees to either party, however, on the grounds that the parties’ could not agree, retroactively, to amend the subcontract to include an attorney fee provision.

The Court of Appeals reversed the trial court’s judgment in favor of the subcontractor on its quantum meruit claim. The Court agreed with KVL that, in light of the parties’ arguments at trial and the trial court’s finding that there was a valid, enforceable subcontract that governed the excavation work, the subcontractor could not recover on an implied contract, quantum meruit theory. The subcontractor’s extra excavation work did not become “extracontractual” simply because the general contractor had rejected an untimely change order. The Court also ruled that KVL’s client was entitled to attorney fees as the prevailing party.

The Court of Appeals opinion can be found at Kizer Excavating Co. v. Stout Building Contractors, LLC, 324 Or App 211, 525 P3d 883, adhered to as modified on reconsideration, 325 Or App 642, __ P2d __ (2023).