Shell v. Schollander Companies, Inc.

552 February 19, 2016 No. 2
IN THE SUPREME COURT OF THE
STATE OF OREGON
Melissa SHELL,
an individual,
Petitioner on Review,
v.
THE SCHOLLANDER COMPANIES, INC.,
dba Schollander Development Company,
Respondent on Review.
THE SCHOLLANDER COMPANIES, INC.,
dba Schollander Development Company,
an Oregon corporation,
Third-Party Plaintiff,
v.
KUSTOM BUILT CONSTRUCTION, LLC,
an Oregon limited liability company;
HL Stucco Systems, Inc., an Oregon corporation;
Newside, Inc. an Oregon corporation;
Western Cedar, Inc., an Oregon corporation; and
J & R Gutter Services, Inc., an Oregon corporation,
Third-Party Defendants.
(CC 106480CV; CA A150509; SC S062791)
On review from the Court of Appeals.*
Argued and submitted May 8, 2015.
Daniel T. Goldstein, Ball Janik, LLP, Portland, argued
the cause for petitioner on review. Christopher C. Grady,
Aldrich Eike, P.C., Portland, filed the brief for petitioner on
review. With him on the brief was Kevin A. Eike.
Paul E. Sheely, Smith Freed & Eberhard P.C., Portland,
argued the cause and filed the brief for respondent on review.
With him on the brief was Jakob Lutkavage-Dvorscak.
______________
*  On appeal from Washington County Circuit Court, Donald R. Letourneau,
Judge. 265 Or App 624, 336 P3d 569 (2014).
Cite as 358 Or 552 (2016) 553
Adele J. Ridenour, Ball Janik LLP, Portland, filed the
brief for amicus curiae Gerald and Melissa McKee. With her
on the brief were Philip E. Joseph and James C. Pritchard.
Christine Moore, Landye Bennett Blumstein LLP,
Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, and Nakamoto, Justices.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Case Summary: The question in this construction defect case is which of two
statutes of repose applies when a buyer enters into a purchase and sale agree-
ment to buy an existing home. Although each statute provides for a 10-year period
of repose, the two periods of repose run from different dates. One runs from “the
date of the act or omission complained of.” ORS 12.115(1). The other runs from
the date that construction is “substantial[ly] complet[e].” ORS 12.135(1)(b). The
difference matters in this case because plaintiff filed her action more than 10
years after “the date of the act or omission complained of” but less than 10 years
after the construction was “substantial[ly] complet[e].” The trial court ruled that
ORS 12.115(1) applied and entered judgment in defendant’s favor. The Court of
Appeals affirmed. Held: ORS 12.135(1)(b) applies to claims that arise from con-
tracts to construct, alter, or repair an improvement to real property. Because
plaintiff’s negligence claims did not arise from such a contract, the more general
statute of repose set out in ORS 12.115(1) applied.
The judgment of the circuit court and the decision of the Court of Appeals
are affirmed.
______________
**  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
554 Shell v. Schollander Companies, Inc.
KISTLER, J.
The primary question in this construction defect
case is which of two statutes of repose applies when a buyer
enters into a purchase and sale agreement to buy an exist-
ing home. Although each statute provides for a 10-year
period of repose, the two periods of repose run from differ-
ent dates. One runs from “the date of the act or omission
complained of.” ORS 12.115(1). The other runs from the
date that construction is “substantial[ly] complet[e].” ORS
12.135(1)(b). In this case, the trial court found that plaintiff
filed her action more than 10 years after “the date of the
act or omission complained of” but less than 10 years after
the construction was “substantial[ly] complet[e].” The trial
court ruled that the first statute, ORS 12.115(1), applied
and accordingly entered judgment in defendant’s favor. The
Court of Appeals affirmed. Shell v. Schollander Companies,
Inc., 265 Or App 624, 336 P3d 569 (2014). We allowed plain-
tiff’s petition for review and now affirm the Court of Appeals
decision and the trial court’s judgment.
Defendant is a general contractor that builds “spec”
houses—houses built without pre-existing construction
contracts in anticipation of eventual sale to the public.1
Defendant’s president explained that his company ordi-
narily does not sell homes to the public until the homes have
been completed. In particularly strong markets, however,
defendant has sold homes that are approximately 95 percent
complete. On May 30, 2000, defendant and plaintiff entered
into a purchase and sale agreement for a house. Although
most of the construction had been completed, the agreement
specified that defendant would make changes to the interior
of the house. Specifically, defendant agreed to upgrade some
of the flooring, install an air conditioning unit, and install a
gas dryer in the laundry room. After defendant made those
changes and the parties conducted a walk-through inspec-
tion, the sale closed on July 12, 2000.
More than 10 years after plaintiff entered into the
purchase and sale agreement but less than 10 years after
1
Because the trial court ruled in defendant’s favor on summary judgment,
we state the facts in the light most favorable to plaintiff. Cocchiara v. Lithia
Motors, Inc., 353 Or 282, 284, 297 P3d 1277 (2013) (stating standard).
Cite as 358 Or 552 (2016) 555
the sale closed, plaintiff filed a complaint against defendant
in which she alleged that, as a result of defendant’s negli-
gence, some of the exterior elements of her house—the win-
dows, siding, water resistant barrier, and flashing—were
defective. In its answer, defendant alleged, as an affirmative
defense, that the statute of repose set out in ORS 12.115(1)
barred plaintiff’s negligence claims.2 Defendant also filed a
motion for summary judgment in which it submitted evi-
dence that all the acts or omissions that gave rise to plain-
tiff’s specifications of negligence occurred before plaintiff
signed the purchase and sale agreement on May 30, 2000,
and thus more than 10 years before she filed her complaint.
It followed, defendant reasoned, that the 10-year statute of
repose in ORS 12.115(1) barred plaintiff’s negligence claims.
Plaintiff responded that defendant was relying on
the wrong statute of repose. In her view, ORS 12.135(1)(b)
applied and gave her 10 years from the date of “substantial
completion * * * of construction” in which to bring her action.
Plaintiff reasoned that, because a reasonable juror could
find that the construction of her house was not substantially
complete until the sale closed on July 12, 2000, her com-
plaint came within the 10-year period of repose set out in
ORS 12.135(1)(b) and thus was timely.
After considering the parties’ argument, the trial
court ruled that ORS 12.135(1) applies to claims arising
from contracts to construct, alter, or repair homes. The
trial court concluded that, because plaintiff’s claims did not
arise out of a contract to construct a home, ORS 12.135(1)
did not apply.3 It ruled instead that ORS 12.115(1) applied.
The court also concluded that, because the alleged “acts or
omissions” that gave rise to plaintiff’s negligence claims
occurred before plaintiff entered into the purchase and sale
agreement (and thus more than 10 years before she filed her
2
ORS 12.115(1) provides that “[i]n no event shall any action for negligent
injury to person or property of another be commenced more than 10 years from
the date of the act or omission complained of.”
3
The trial court recognized that ORS 12.135(1) might apply to the changes
to the interior of the home that defendant had agreed to make as part of the
purchase and sale agreement, on the theory that those claims arose out of an
agreement to alter a home. However, plaintiff had not alleged that defendant had
been negligent in making those changes.
556 Shell v. Schollander Companies, Inc.
action), defendant was entitled to summary judgment. The
trial court entered judgment accordingly.4
The Court of Appeals affirmed. It reasoned that the
10-year period of repose set out in ORS 12.135(1)(b) runs
from the date of “substantial completion” of construction.
Because the date of “substantial completion” is defined as
the date that the “contractee” accepts the construction as
complete, the Court of Appeals adhered to its decisions hold-
ing that ORS 12.135(1) applies only to claims that “derive
from a contractor-contractee relationship.” See Shell, 265 Or
App at 632 (following Lozano v. Schlesinger, 191 Or App 400,
84 P3d 816 (2004)). Because plaintiff’s construction defect
claims did not derive from such a relationship, the court
agreed with the trial court that ORS 12.135(1) was inappli-
cable. It also agreed that ORS 12.115(1) applied and that the
alleged acts or omissions that gave rise to plaintiff’s negli-
gence claims occurred more than 10 years before plaintiff
filed her complaint. Id. at 633-34. It accordingly affirmed
the trial court’s judgment.
We allowed plaintiff’s petition for review to consider
which of the two statutes of repose applies. On that issue,
plaintiff does not argue that ORS 12.115(1) is, by its terms,
inapplicable. Rather, she argues that ORS 12.135(1) is the
more specific statute and, for that reason, controls. We agree
with plaintiff’s implicit recognition that ORS 12.115(1)
potentially applies to her claims. As noted, that statute pro-
vides that “[i]n no event shall any action for negligent injury
to person or property of another be commenced more than
10 years from the date of the act or omission complained of.”
ORS 12.115(1). As also noted, plaintiff has alleged that she
sustained injuries to her property as a result of defendant’s
negligence. It follows that plaintiff’s claims come within the
terms of ORS 12.115(1), which applies to “any action for neg-
ligent injury to * * * property of another.” (Emphasis added.)
As we understand plaintiff’s argument, it rests
on the proposition that ORS 12.135(1)(b) governs a subset
of claims to which ORS 12.115(1) otherwise would apply.
4
After plaintiff filed her complaint, defendant filed a series of third-party
complaints against various subcontractors who had worked on plaintiff’s home.
Having granted summary judgment against plaintiff, the trial court dismissed
defendant’s third-party complaints.
Cite as 358 Or 552 (2016) 557
Defendant does not argue otherwise, and we assume that
that proposition is correct. The issue, as the parties frame
it, is whether plaintiff’s claims come within the subset of
claims to which ORS 12.135(1)(b) applies.
At first blush, the text of ORS 12.135(1)(b) appears
to support plaintiff’s position. That subsection provides that
an “action against a person * * *, whether in contract, tort,
or otherwise, arising from the person having performed
the construction, alteration or repair of any improvement
to real property * * * must be commenced” within “[t]en
years after substantial completion * * * of the construction,
alteration, or repair of * * * a residential structure[.]” ORS
12.135(1)(b).5 If we looked solely at the text of that subsec-
tion, it would appear that the statute of repose set out in
ORS 12.135(1)(b) applies to negligence claims that arise out
of the construction of residential structures and that ORS
12.135(1)(b), being the more specific statute, would apply in
this case rather than the general statute of repose for negli-
gent injury to person or property set out in ORS 12.115(1).
As the Court of Appeals observed, however, we
cannot look solely at subsection (1) of ORS 12.135 in deter-
mining the class of claims to which that statute applies. We
also have to consider subsection (4)(b) of that statute, which
defines the phrase “substantial completion.” See Vsetecka v.
Safeway Stores, Inc., 337 Or 502, 508-09, 98 P3d 1116 (2004)
(considering multiple subsections of a notice statute in deter-
mining whether the notice given was sufficient). That sub-
section provides:
“ ‘Substantial completion’ means the date when the con-
tractee accepts in writing the construction, alteration or
repair of the improvement to real property or any desig-
nated portion thereof as having reached that state of com-
pletion when it may be used or occupied for its intended
purpose or, if there is no such written acceptance, the date
of acceptance of the completed construction, alteration or
repair of such improvement by the contractee.”
ORS 12.135(4)(b).
5
ORS 12.135(1) sets out three different time periods for commencement of an
action “arising from the person having performed the construction, alteration or
repair of any improvement to real property.” In this case, only the second alterna-
tive, set out at subsection(1)(b), is applicable.
558 Shell v. Schollander Companies, Inc.
The 10-year statute of repose in ORS 12.135(1)(b)
runs from the date of “substantial completion” of construc-
tion, which the legislature has defined as the date that the
“contractee” accepts the construction as complete, in writing
or otherwise. A contractee is “a person with whom a con-
tract is made.” Black’s Law Dictionary 350 (8th ed 2004);
see Lozano, 191 Or App at 404 (explaining that, although
“contractee” is not a word of ordinary usage, “it appears to
be a quite common expression, particularly in construction
contracts; it refers to the recipient of the services of a con-
tractor”). To be sure, the term “contractee,” considered in
isolation, could refer either to a party to a purchase and sale
agreement to buy an existing home or to a party to a con-
struction contract to construct, alter, or repair a home. Each
is a “contractee.” However, the context in which the legisla-
ture used the term “contractee” makes clear that that term
refers to a party to a contract to construct, alter, or repair an
improvement to real property.
ORS 12.135(4)(b) refers to a contractee’s accept-
ing in writing the construction, alteration, or repair of the
improvement to real property. Used in that context, the
term “contractee” is most naturally understood as referring
to a person who entered into a contract to construct, alter,
or repair an improvement to real property. Ordinarily, only
the person who had entered into such a contract would have
reason to accept the contractor’s work as “substantial[ly]
complet[e].” See ORS 12.135(1)(b), (4)(b). Conversely, a party
entering into a purchase and sale agreement to buy a home
ordinarily would have little or no occasion to accept that
home as substantially complete. Typically, a purchase and
sale agreement for a home conveys title to both an existing
home and the underlying land.
We conclude from the text of ORS 12.135(4)(b) that
the term “contractee” refers to a party to a construction con-
tract who accepts, in writing or otherwise, the completed
construction, repair, or alteration of an improvement to
real property. That limitation is significant because it is
only at the point that the contractee—the party to a con-
tract to construct, alter, or repair an improvement to real
property—accepts the work as substantially complete that
the 10-year statute of repose in ORS 12.135(1)(b) begins
Cite as 358 Or 552 (2016) 559
to run. Put differently, if there is no contract to construct,
alter, or repair an improvement to real property and thus
no “contractee” whose acceptance will trigger the period of
repose, ORS 12.135(1)(b) does not apply. Rather, the more
general period of respose set out in ORS 12.115 will govern.
That much follows from the text of ORS 12.135 alone.
The parties do not identify any relevant context,
and we turn to the statute’s legislative history. See State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (describ-
ing statutory construction methodology). ORS 12.135 was
enacted in 1971 and, since then, has been amended on multi-
ple occasions. That statute, however, has not been amended
in a way that affects the definition of “substantial comple-
tion” in subsection (4)(b) or the role that “substantial com-
pletion” plays in limiting the class of claims to which ORS
12.135(1)(b) applies. Accordingly, we focus solely on the 1971
legislative history.
The impetus for House Bill (HB) 1259 (1971), which
is codified as ORS 12.135, came from the Associated General
Contractors of America, Inc. (AGCA). AGCA proposed HB
1259 to limit the time in which a contractor could be sued for
faulty workmanship or materials. Tape Recording, House
State and Federal Affairs Committee, Subcommittee on
Financial Affairs, HB 1259, Mar 3, 1971, Tape 4, Side 2
(testimony of J.R. Kalinoski). AGCA’s concern, however, was
“not about the length of the limitation periods but about fix-
ing the time from which these periods are measured, specif-
ically about claims that might ‘arise’ from latent defects in
construction work long after a potential defendant had com-
pleted the work.” Securities-Intermountain v. Sunset Fuel,
289 Or 243, 248-49, 611 P2d 1158 (1979).
To meet that concern, AGCA proposed that the
limitations period would run from a fixed date. See Tape
Recording, House State and Federal Affairs Committee,
Subcommittee on Financial Affairs, HB 1259, May 10, 1971,
Tape 16, Side 2 (testimony of J.R. Kalinoski) (explaining
that the bill provides “a given period of time after completion
of construction, rather than * * * a time period commencing
with an injury or damage that might occur”). As initially
drafted, subsection 2(1) of the bill provided that claims
560 Shell v. Schollander Companies, Inc.
“against a person, arising from such person’s work, as a
contractor for the construction, alteration or repair of any
improvement to real property shall be commenced within
six years after the substantial completion of the improve-
ment to real property or within six years after the accep-
tance of the completed improvement by the contractee,
whichever is earlier.”
Bill File, HB 1259 § 2(1), Jan 26, 1971 (initial draft).
Subsection 2(2) of the initial draft defined “substantial
completion” as “the date when the contractee accepts the
improvement * * * as having reached the state of completion
when it may be used or occupied for its intended purpose.”
Id. § 2(2).
Read together, subsections 2(1) and 2(2) of the ini-
tial draft applied to claims against “contractors” for the
“construction, alteration or repair of any improvement to
real property” and required that those claims be brought
within six years of either “substantial completion” of the
improvement or “acceptance of the completed improvement
by the contractee, whichever is earlier.” The bill, as initially
drafted, assumed the existence of a contract to construct,
alter, or repair an improvement to real property. Moreover,
because the events that triggered the period of repose turned
on the either the contractor’s substantial completion of its
work or the contractee’s acceptance of that work as complete,
the period of repose necessarily applied only in the context
of contracts to construct, alter, or repair improvements to
real property.
During the first subcommittee hearing in March
1971, a committee member pointed out what AGCA viewed
as a drafting error in the bill,6 and AGCA asked the com-
mittee to table the bill so that the error could be corrected.
See Minutes, House State and Federal Affairs Committee,
Subcommittee on Financial Affairs, HB 1259, Mar 9,
1971, 4. The subcommittee agreed to do so and later, in
April, moved the bill from the table and returned it to the
roll. Minutes, House State and Federal Affairs Committee,
6
As initially drafted, HB 1259 made the statute of repose and the statute of
limitations coextensive. It both imposed a six-year period of repose and extended
the two-year statute of limitations for negligent construction to six years.
Cite as 358 Or 552 (2016) 561
Subcommittee on Financial Affairs, HB 1259, Apr 7, 1971.
Over the next two months, the subcommittee made several
changes to the bill but did not change the bill’s essential
structure or purpose.
The subcommittee expanded the bill to apply not
only to claims against contractors but also to claims against
persons who “furnished the design, planning, surveying,
architectural or engineering services for such improvement.”
Bill File, HB 1259, May 17, 1971, § 2 (House Amendments
to Engrossed House Bill). It fixed the drafting error in the
initial version of the bill, and it made the period of repose
10 rather than six years. Id. Finally, the subcommittee pro-
vided that the period of repose would run from “substan-
tial completion of such construction, alteration, or repair”
of the improvement, and it defined “substantial completion”
as including essentially the same two events that the orig-
inal bill had identified as triggering the period of respose.7
Id. §§ 2, 3. That is, it defined “substantial completion” as
either the date “when the contractee accepts in writing the
construction, alteration or repair of the improvement to real
property” or, in the absence of a written acceptance, “the
date of acceptance of the completed construction, alteration
or repair of such improvement by the contractee.” Id.; see
PIH Beaverton, LLC v. Super One, Inc., 355 Or 267, 275-84,
323 P3d 961 (2014) (explaining differences between those
two events).
In discussing HB 1259, the proponents of the bill
described “acceptance of the completed construction * * * by
the contractee” entirely in terms of contract specifications:
“Certain specifications are put out * * * and you complete
it in accordance with th[ose specifications]. The owner’s
acceptance is conditioned upon his acknowledgement that
you’ve completed your work and you’ve completed in accor-
dance with his desires and his specifications. Certainly,
7
As initially drafted, the bill provided that the period of repose would run
either from “substantial completion” of the improvement or “acceptance of the
completed improvement by the contractee, whichever is earlier.” Bill File, HB
1259, Jan 26, 1971, § 2 (initial draft). As amended, the bill provided that the
period for repose would run from “substantial completion” and defined “substan-
tial completion” as including essentially those two events. Bill File, HB 1259,
May 17, 1971, §§ 2, 3 (House Amendments to Engrossed House Bill).
562 Shell v. Schollander Companies, Inc.
there should be an obligation on the owner at that time to
assure himself in his own mind that it has been completed
[in] the way he wants it.”
Tape Recording, House Committee on State and Federal
Affairs, Subcommittee on Financial Affairs, May 10, 1971,
Tape 16, Side 2 (testimony of Preston Hiefield); see PIH
Beaverton, LLC, 355 Or at 283 (concluding from the quoted
comment that the legislature intended that the contractee’s
“acceptance of completion” under the bill meant acceptance
of the work as “fully complete in accordance with contrac-
tual specifications”).
The proponents took the same course in discussing
the alternate event that would trigger the period of repose—
the “contractee[’s] accept[ance of] the improvement * * *
as having reached the state of completion when it may be
used or occupied for its intended purpose.” For example, in
explaining how that method of acceptance would work, they
focused on a contract to build a large construction project:
“It’s not uncommon at all, especially in school construction,
for a school district to occupy * * * part of a building before
the contractor is completely finished and in such cases * * *
we feel that it’s necessary for substantial completion to be
determined in limiting the cause of action. The intent of
this is to say that when * * * the contractor agrees with the
owner that the owner may occupy part of the building that
he is constructing, that the contractor should be responsi-
ble to secure something from the owner saying that he is
occupying the building and that be the beginning of the
[period of repose].”
Tape Recording, House Committee on State and Federal
Affairs, Subcommittee on Financial Affairs, HB 1259,
Mar 3, 1971, Tape 5, Side 1 (testimony of J.R. Kalinoski).
See also Tape Recording, House Committee on State and
Federal Affairs, Subcommittee on Financial Affairs,
HB 1259, Apr 9, 1971, Tape 14, Side 2 (testimony of J.R.
Kalinoski) (explaining that substantial completion is rele-
vant in construction of school buildings when school district
wants to occupy part of the building). As that example illus-
trates, the legislators understood that the “contractee” to
which ORS 12.135(4)(b) referred was the party to a contract
to construct a new building.
Cite as 358 Or 552 (2016) 563
Other parts of the legislative history similarly indi-
cate that HB 1259 applied to contracts to construct, alter,
or repair improvements to real property. For example, one
legislator asked whether there was some “certificate of com-
pletion” that could serve as definitive evidence of substan-
tial completion, and an AGCA representative explained that
there is “an instrument of some kind that says that the proj-
ect is completed and accepted subject to a provision in the
contract,” but that such an instrument is “not given in every
instance.” Tape Recording, House Committee on State and
Federal Affairs, Subcommittee on Financial Affairs, HB
1259, Apr 9, 1971, Tape 14, Side 2 (conversation between
Representative George F. Cole and J. R. Kalinoski). In PIH
Beaverton LLC, this court looked to a model contract drafted
by the American Institute of Architects to define when a
contractee will accept construction “as having reached that
stage of completion when it may be used or occupied for its
intended purpose.” See 355 Or at 278-79. That is, the court
took from the legislative history that, in referring to the
contractee’s acceptance of the construction as complete, the
legislature was referring to acceptance by a party to a con-
tract to construct, repair, or alter an improvement to real
property. The legislative history thus confirms what the text
of ORS 12.135 reveals—that the period of repose set out in
ORS 12.135(1)(b) applies to claims that derive from contracts
to construct, alter, or repair improvements to property.
Plaintiff advances primarily one contrary argument
in this court. She agrees that the purpose of ORS 12.135(1)
was to provide a date certain from which claims arising out
of the construction, alteration, or repair of an improvement
to real property would run. She reasons that, because that
purpose applies equally whether a builder is constructing a
home pursuant to a construction contract or selling an exist-
ing home, ORS 12.135(1)(b) should apply to her claims.
We reach a different conclusion for two reasons.
First, as discussed above, the text and legislative history of
ORS 12.135 reveal that that statute of repose applies only
to claims that derive from contracts to construct, alter, or
repair an improvement to real property. It is not our job to
expand a statute beyond its intended reach, even if the leg-
islature reasonably could have chosen to do so.
564 Shell v. Schollander Companies, Inc.
Second, the legislature reasonably could have con-
cluded that, for purposes of statutes of repose, “spec” houses
present different issues from houses built pursuant to con-
struction contracts. Among other things, “spec” houses may
go unsold for years. If plaintiff were correct and if the buyers
in an agreement to buy an existing home were “contract-
ees” for the purposes of ORS 12.135(4)(b), then the 10-year
statute of repose would not begin to run until the buyer
“accepted” the construction as “substantial[ly] complet[e]”
by buying it. Not only is it logically difficult to say that the
construction of a “spec” house will not be complete until the
house is sold years after the contractor finished building it,
but plaintiff’s interpretation would defeat the certainty that
ORS 12.135(1)(b) was intended to provide. Under plaintiff’s
interpretation, when the statute of repose would begin to
run on “spec” houses would turn on the happenstance of the
date of sale. We accordingly agree with the Court of Appeals
and the trial court that ORS 12.135(1)(b) does not apply to
plaintiff’s negligence claims. The claims for negligence that
plaintiff has alleged do not derive from a contract to con-
struct, alter, or repair an improvement to land.8 As the trial
court and the Court of Appeals correctly held, ORS 12.115(1)
applies to plaintiff’s negligence claims.9
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
8
As the trial court correctly noted, even if the parties’ agreement in this case
could be viewed as a hybrid agreement—namely, a contract to buy an existing
home and a contract to make alterations to the interior of that home, plaintiff’s
negligence claims did not derive from the interior alterations that defendant
agreed to make. Rather, her claims derived from defendant’s alleged negligence
in constructing the exterior of her house. Because plaintiff’s negligence claims
did not derive from a contract to construct, alter, or repair an improvement to real
property, ORS 12.135(1) did not apply to them.
9
On review, plaintiff argues alternatively that, even if ORS 12.115(1)
applied, there was a genuine issue of material fact that precluded the entry of
summary judgment. The arguments that plaintiff has advanced on that issue do
not persuade us that the Court of Appeals erred in resolving it.