Deal v. Edwards , 51 Or. App. 203 ( 1981 )

624 P.2d 1099 (1981) 51 Or.App. 203

J. Richard DEAL, Appellant,
v.
Cecil H. EDWARDS, Also Known As Cecil H. Edwards, Jr., and As Chick Edwards, W.C. Dyer & Son Insurance Agency, Inc., an Oregon Corporation, R.H. Carey Co., an Oregon Corporation, C.F.P., Inc., an Oregon Corporation, the Ergo Corporation, an Oregon Corporation, and Capital Development Corporation, an Oregon Corporation, Respondents.

No. 112400; CA 17433.

Court of Appeals of Oregon.

Argued and Submitted December 9, 1980. Decided March 9, 1981.

Kathryn A. Logan, Salem, argued the cause for appellant. On the briefs was Clayton C. Patrick, Salem.

Paul M. Ferder, Salem, argued the cause for respondent Edwards. With him on the brief was Ferder, Ogdahl & Souther, Salem.

Before RICHARDSON, P.J., and THORNTON and BUTTLER, JJ.

PER CURIAM.

Plaintiff filed this action for the sole purpose of foreclosing a claimed construction lien. Defendants counterclaimed, asserting a right to damages caused by plaintiff's unworkmanlike construction resulting in the loss of value of the building on which the work was done. Plaintiff's only response was that he had corrected all deficiencies in the work prior to filing the complaint.

The trial court held that plaintiff's lien was invalid and entered judgment for defendants for attorney fees in defending the lien claim. We affirm. The lien claim exceeded by not less than 9 percent the amount plaintiff could justly claim to be due, and the lien claim included nonlienable items which cannot be segregated from those which are lienable without extrinsic evidence. Hays v. Pigg, 267 Or. 143, 148, 515 P.2d 924 (1973); see J.W. Copeland Yards v. Phillips, 275 Or. 193, 550 P.2d 438 (1976).

Plaintiff concedes that if his lien is invalid, he is entitled to nothing on his complaint. At trial, after the court determined plaintiff's lien to be invalid, it was agreed that defendants' counterclaim would be tried as an action at law, without a jury. There is sufficient evidence, ignoring the testimony admitted over defendants' objection, to support the trial court's finding that defendants were damaged in the sum of $20,800.18.

Affirmed.