Kizer Excavating Co. v. Stout Building Contractors, LLC

• Court: Oregon Court of Appeals
• Area(s) of Law: Appellate Procedure
• Date Filed: 05-03-2023
• Case #: A177168
• Judge(s)/Court Below: Egan, P.J., for the Court; Kamins, J.; & Hadlock, J. pro tempore
• Full Text Opinion

Plaintiff did, in fact, argue that the argument made in Defendant's first assignment of error was not preserved.

Kizer Excavating Co. ("Kizer") sought reconsideration of the Court's prior opinion in which it was determined that the trial court erred in holding that Kizer could recover damages on its quantum meruit claim and Stout Building Contractors ("Stout") was entitled to judgment and attorney fees on Kizer's breach of contract claim. Kizer Excavating v. Stout Building Contractors, 324 Or 211, 525 P3d 883 (2023). Correcting a misstatement at 324 Or App at 219 n 2, the Court explained that Kizer did make an argument that Stout did not preserve the argument made in its first assignment of error. The Court held that the argument made in the first assignment of error was preserved. Reconsideration allowed; opinion modified.

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