[00:00:00] Speaker 00:
Good morning.

[00:00:01] Speaker 00:
Timothy Hester on behalf of the appellant, Two Pitchers Brewing Company.

[00:00:06] Speaker 00:
May it please the Court?

[00:00:08] Speaker 00:
And I should say first, Your Honor, I'd like to reserve three minutes of my time for rebuttal if I can.

[00:00:13] Speaker 04:
We'll do our best there.

[00:00:16] Speaker 00:
May it please the Court?

[00:00:18] Speaker 00:
The contracted issue here establishes two separate obligations.

[00:00:21] Speaker 00:
First, Contact Pro was obligated to deliver a finished, pre-inspected kitchen container with a guarantee that

[00:00:29] Speaker 00:
it would receive a California-manufactured building sticker.

[00:00:33] Speaker 00:
There's a separate obligation in the contract, a separate remedy for breach of contract.

[00:00:38] Speaker 00:
The two pitchers could enter a claim for the cost of rectifying any issues if the container was not constructed as planned.

[00:00:46] Speaker 00:
Now, ContactPro and its opposition at pages 15 and 17 argues that the provision for two pitchers to enter a claim for the cost of rectifying issues, quote, does not create an obligation.

[00:00:59] Speaker 00:
on the part of ContactPro.

[00:01:01] Speaker 00:
That flatly misconstrues the contract, and I submit that really tees up the issue before the court.

[00:01:06] Speaker 04:
What's your best case to support your argument that we should interpret the March, I think, 2023 email as a separate business transaction?

[00:01:17] Speaker 00:
There's two propositions, I would say, Your Honor.

[00:01:19] Speaker 00:
First, that

[00:01:21] Speaker 00:
The couch case out of the Oregon Supreme Court says that a contract is to be construed according to the text and according to the context of the contract.

[00:01:31] Speaker 00:
So we have here a prepaid contract, the contract provided for payment in full before delivery.

[00:01:38] Speaker 00:
And so there was a significant risk of non-performance.

[00:01:42] Speaker 00:
The context of this contract is that the provision for two pitchers to enter a claim for reimbursement is a specified

[00:01:51] Speaker 00:
remedy for breach on a prepaid contract.

[00:01:54] Speaker 00:
So it has separate meaning.

[00:01:56] Speaker 00:
The other case I would point the court to is ACN opportunity, also out of the Oregon Supreme Court.

[00:02:03] Speaker 00:
The court must, if possible, construe the contract so as to give effect to all of its provisions.

[00:02:09] Speaker 00:
And so we submit that this language of an ability to submit a claim for cost of rectification

[00:02:19] Speaker 00:
is a separate contractual remedy structured in this contract, a prepaid contract.

[00:02:24] Speaker 03:
I want to follow up on that point that you're making.

[00:02:26] Speaker 03:
What is the injury?

[00:02:29] Speaker 03:
What is the measure of damages?

[00:02:31] Speaker 03:
However, we want to classify that.

[00:02:32] Speaker 03:
That's different between the initial breach of just not providing goods that conformed with what the agreement was and then not responding to the claim that was made as a result of that.

[00:02:43] Speaker 03:
What's the difference in terms of outcome that you would get?

[00:02:45] Speaker 00:
There's two separate injuries, Your Honor.

[00:02:49] Speaker 00:
One injury is the failure to deliver the container as finished.

[00:02:55] Speaker 03:
I understand that you're going to say what factually is going on is different.

[00:02:59] Speaker 03:
But I'm saying if you come to court and say breach, they breach the contract, and I therefore get a remedy, what's the difference in remedy between the two factual breaches that you're asserting?

[00:03:10] Speaker 00:
The second remedy is the cost of rectifying the deficiencies in the container.

[00:03:16] Speaker 00:
That's separate from the failure to deliver a finished container in the first place.

[00:03:20] Speaker 03:
Wouldn't you measure the harm or the damages for the failure to deliver a conforming good based on the cost it would take to make it a conforming good?

[00:03:28] Speaker 03:
And isn't that the same thing as the second breach theory you're asserting?

[00:03:32] Speaker 00:
It could be conceptually that way, Your Honor, but here the contract specified that it could be submitted and two pitchers had the ability essentially to engage in self-help.

[00:03:43] Speaker 03:
I think you might be missing the point of my question.

[00:03:44] Speaker 03:
I fully understand that you're saying that there are two provisions of this contract that weren't complied with.

[00:03:51] Speaker 03:
Yes.

[00:03:51] Speaker 03:
What I'm trying to get at is at a practical level, what is the difference of what you could get for those failures in court in a lawsuit?

[00:04:00] Speaker 00:
The difference, well, the failure to deliver a finished pre-inspected kitchen, there were damages associated with that failure in terms of lost revenue, in terms of delay in opening this new taproom in Oakland.

[00:04:16] Speaker 00:
In other words, there were significant damages to Two Pitcher's business from that failure to deliver the original finished product.

[00:04:26] Speaker 00:
Then you have a separate question.

[00:04:28] Speaker 00:
Okay, then two pitchers separately undertook to finish the container and it incurred costs for that those are different those costs What are those additional costs the additional costs were all of the money they spent to finish it?

[00:04:40] Speaker 03:
But that's different from the damages to the business wouldn't they have tried to get those damages in the first breach theory of it?

[00:04:47] Speaker 03:
Yeah, I get my last business expense or you know my last business profits for not being able to function and operate as I was supposed to be able to and then I also get the cost for making this thing

[00:04:57] Speaker 03:
what I ordered it to be.

[00:04:58] Speaker 00:
I think conceptually, Your Honor, I agree with you that that would be one piece of what could have been brought as an original claim, but those costs hadn't yet been incurred when the container was first delivered.

[00:05:14] Speaker 00:
Those costs hadn't been incurred.

[00:05:16] Speaker 01:
Let me ask you this question.

[00:05:17] Speaker 01:
You have a contract.

[00:05:19] Speaker 01:
In the contract, you both agree that this is a one-year statute of limitations, correct?

[00:05:24] Speaker 00:
Yes, Your Honor.

[00:05:25] Speaker 01:
And you say on day of delivery, it's deficient.

[00:05:29] Speaker 01:
It's not good the day of delivery.

[00:05:31] Speaker 01:
You spend another four or five months from day of delivery making it whole, making it right.

[00:05:38] Speaker 01:
You write a letter saying, we have made it right.

[00:05:41] Speaker 01:
You have breached.

[00:05:43] Speaker 01:
Then you wait almost a year and a half before you ask for any relief.

[00:05:47] Speaker 01:
What happens to the year statute limitations?

[00:05:49] Speaker 00:
Where does the year start?

[00:05:52] Speaker 00:
There's a contractual one-year limitation and it runs from a business transaction and there's two separate business transactions.

[00:06:01] Speaker 00:
One business transaction is the failure to deliver in April of 2021.

[00:06:05] Speaker 00:
There's a separate business transaction in relation to this remedy

[00:06:11] Speaker 00:
The ability to seek rectification costs under the contract.

[00:06:16] Speaker 00:
That's a separate provision of the contract.

[00:06:18] Speaker 00:
When did that come into play?

[00:06:20] Speaker 00:
That came into play in March 2023.

[00:06:22] Speaker 01:
How is that?

[00:06:23] Speaker 01:
Because you fixed the container by August of 2021.

[00:06:28] Speaker 00:
No, the container was inspected, was finished, but the costs were still being incurred by two pitchers as late as December of 2021.

[00:06:40] Speaker 00:
And it would be contrary, actually.

[00:06:41] Speaker 04:
So if you would have waited six more months or a year, you think, and then decided to send your letter, that would still be within the terms of the contract?

[00:06:52] Speaker 00:
Yes, Your Honor, because it runs off of the biggest.

[00:06:54] Speaker 04:
You could have waited five years.

[00:06:56] Speaker 00:
No, I don't think so, Your Honor.

[00:06:58] Speaker 04:
OK, so then where are how?

[00:07:00] Speaker 04:
I'm just trying to understand your argument and the timing and how that works.

[00:07:04] Speaker 00:
Yes.

[00:07:05] Speaker 00:
There's an overlay of the four-year statute of limitations under Oregon law.

[00:07:09] Speaker 00:
But here we have a contractual limitation period.

[00:07:12] Speaker 00:
The contractual limitation period is written in terms of a business transaction.

[00:07:17] Speaker 00:
There has to be a suit brought within one year of the business transaction.

[00:07:22] Speaker 00:
And the business transaction was the request for reimbursement of cost.

[00:07:26] Speaker 03:
Now, I can- So why I'm pushing on, like, what is the additional relief that you think you can get from not getting an answer to your request for recovery?

[00:07:36] Speaker 03:
is I don't think you have a separate transaction unless you can show injury that's unique to that or that at least builds on the first transaction that you're arguing about.

[00:07:44] Speaker 03:
If the relief is the same for both, you don't have a new one.

[00:07:47] Speaker 00:
I don't think there's the same relief, Your Honor.

[00:07:50] Speaker 00:
The relief on the first provision, the failure to deliver, which happens in April 2021, the relief on that is the failure to deliver a finished good.

[00:08:01] Speaker 00:
The second relief is different.

[00:08:03] Speaker 00:
Now, it may be

[00:08:06] Speaker 00:
an element of the first claim, but it's different because the contract specifically states that two pitchers can enter a claim for the cost of rectifying issues with the container.

[00:08:17] Speaker 00:
If the premise of the court's question is right, it eliminates that provision from the contract effectively.

[00:08:25] Speaker 00:
It writes out the provision.

[00:08:26] Speaker 03:
Well, you have a procedural injury, but that doesn't give you an action.

[00:08:30] Speaker 00:
Well, the claim is the ability to obtain the rectification costs that the contract said two pitchers could obtain.

[00:08:39] Speaker 00:
And the reason, I mean, I can understand the court is struggling with, well, what's the reason for the time period?

[00:08:44] Speaker 00:
The reason was there was an effort to try to settle it.

[00:08:48] Speaker 00:
But the rectification costs are specifically provided for.

[00:08:52] Speaker 04:
What's the most analogous case that you can point us to to support this theory of yours?

[00:08:59] Speaker 00:
Your Honor, I'm not sure there's a case quite on point with this.

[00:09:02] Speaker 00:
It comes out of the contract language itself.

[00:09:06] Speaker 00:
Okay.

[00:09:06] Speaker 00:
And so what I'm pointing to is the contract language that says if you have a business transaction, there has to be a suit within one year of the business transaction, and there's a separate business transaction provided for.

[00:09:19] Speaker 00:
If, contrary to what we're arguing, if the conclusion were there's no business transaction associated with the submission of a claim for rectification costs,

[00:09:29] Speaker 00:
that effectively writes out of the contract to Pitcher's ability to seek rectification costs.

[00:09:34] Speaker 00:
If there's no separate injury, if the injury is only from the original delivery, then the ability to seek... Well, but you can show a separate injury.

[00:09:42] Speaker 04:
I just thought the problem here is I think we're struggling.

[00:09:45] Speaker 04:
I'm struggling, you know, with the separate injury.

[00:09:49] Speaker 04:
Maybe you might want to spend some time on the attorney's fees because I'm not sure

[00:09:57] Speaker 00:
What your best argument is why we would look to the Oregon statute when When it's covered by the contract well, I mean for first of all the the contract provides it that it's governed by Oregon law and So so there's really two pieces of this question on the attorney's fees the first is that

[00:10:24] Speaker 00:
The language of the contract says that two pitchers is entitled to recover fees due to contact pros breach.

[00:10:32] Speaker 00:
Order of pursuers.

[00:10:32] Speaker 04:
Is there a breach if it wasn't brought within the statute of limitations?

[00:10:36] Speaker 04:
That's my first.

[00:10:37] Speaker 00:
Yes, your honor, there was a breach.

[00:10:39] Speaker 00:
There was a guarantee in the contract that the container would receive a California manufactured building sticker.

[00:10:47] Speaker 00:
There was a guarantee.

[00:10:49] Speaker 00:
And it never received.

[00:10:51] Speaker 04:
Because that was not brought in a timely manner, there's no determination of a breach.

[00:11:01] Speaker 00:
Well, I think there's no dispute that there was never a California manufactured building sticker for this container.

[00:11:13] Speaker 00:
That's an undisputed fact.

[00:11:14] Speaker 00:
So that is a breach.

[00:11:15] Speaker 00:
But the language is in two parts.

[00:11:18] Speaker 00:
It's in the disjunctive.

[00:11:20] Speaker 00:
It's either due to contact-prose breach or to pursue its remedies under the contract.

[00:11:25] Speaker 00:
It does not require a prevailing party to recover fees.

[00:11:30] Speaker 00:
And Oregon law recognizes in the Conifer Ridge case that we cite in our briefs, a prevailing party provision must refer to the prevailing party or employ a similar term.

[00:11:40] Speaker 00:
There is no such language in this contract

[00:11:43] Speaker 00:
for two pitchers to recover fees.

[00:11:45] Speaker 00:
And again, I go back to why would that make sense in the context of this contract?

[00:11:50] Speaker 00:
It's because this is a prepaid contract entered into by a startup company and its ability to recover its fees if there was non-performance was an important piece of this contract.

[00:12:03] Speaker 00:
And so it does not require two pitchers to prevail

[00:12:07] Speaker 00:
in order to recover its fees.

[00:12:09] Speaker 03:
So that's the first... The problem is, I mean, the trigger, the argument you're making, the contract trigger is breach and if we uphold the decision that the claim is untimely, you're never going to have a decision of breach.

[00:12:22] Speaker 03:
You're never going to have an adjudication of that.

[00:12:24] Speaker 00:
Well, the language is actually pursuing a remedy due to Contact Pro's breach.

[00:12:29] Speaker 00:
There's no dispute that Contact Pro did not meet the guarantee of the contract.

[00:12:33] Speaker 00:
No dispute, because they did not provide the California manufactured building sticker they guaranteed.

[00:12:40] Speaker 00:
But, alternatively, the language says, or to pursue its remedies.

[00:12:44] Speaker 00:
It was, two pitchers was pursuing its remedies.

[00:12:48] Speaker 00:
So that's,

[00:12:48] Speaker 00:
That's the two pitchers side of why two pitchers is entitled to fees because the language of the contract does not require two pitchers to prevail in order to recover its fees.

[00:13:00] Speaker 00:
And I think it's sensible in the context of this contract why that would be so.

[00:13:05] Speaker 00:
Second, on whether contact pro was entitled to its fees.

[00:13:09] Speaker 04:
And why wouldn't we look at the statute for that?

[00:13:12] Speaker 00:
The statute only applies to contractual provisions that award attorney's fees to the prevailing party or its functional equivalent, and I'm quoting from the quality contractor's case out of the Oregon Court of Appeals.

[00:13:26] Speaker 04:
So the Oregon statute... They both found that the statute applied in those cases, right?

[00:13:34] Speaker 00:
Those were cases that had prevailing party requirements.

[00:13:38] Speaker 00:
There's no prevailing party requirement in this contract in relation to the award of fees.

[00:13:43] Speaker 00:
And the Oregon law is very clear that if there's no reference to a prevailing party in the fee provision or some similar concept, then the statute does not apply.

[00:13:55] Speaker 00:
So the statute does not permit ContactPro to recover its fees under Oregon law.

[00:14:02] Speaker 04:
Did you want to reserve the balance of your time?

[00:14:04] Speaker 00:
Yes, I do, Your Honor.

[00:14:05] Speaker 04:
Thank you.

[00:14:19] Speaker 02:
Morning, Your Honors.

[00:14:20] Speaker 02:
I'm Dan Bush, representing Appali Contact Pro.

[00:14:26] Speaker 02:
I'd just like to make a few points.

[00:14:31] Speaker 02:
Opposing counsel said that the contract does not require two pitchers to prevail in order to have an attorney fee award.

[00:14:42] Speaker 02:
Two pictures does not cite any case, and I'm not aware of any case that awards attorneys fees to the non-prevailing party in the way they're suggesting.

[00:14:54] Speaker 02:
Opposing counsel said there was no breach, or there was a breach, that it's undisputed that there was a breach.

[00:15:00] Speaker 02:
Contact Pro acknowledges that the kitchen was delivered without the sticker.

[00:15:08] Speaker 02:
However, the reasons for that are disputed.

[00:15:12] Speaker 02:
And as the panel pointed out, there was never an adjudication about breach based on the statute of limitations.

[00:15:20] Speaker 02:
So it's, although the fact of the delivery without the sticker is not disputed, whether there was a breach or not is disputed and was never adjudicated.

[00:15:31] Speaker 01:
You seem to be talking on both sides of your mouth.

[00:15:34] Speaker 01:
You didn't deliver proper equipment.

[00:15:38] Speaker 01:
You can't say anything that makes that untrue, can you?

[00:15:41] Speaker 02:
No, no.

[00:15:42] Speaker 02:
Contact Pro admits that the kitchen was delivered without the sticker.

[00:15:48] Speaker 02:
But like I said, it's disputed the reasons why and whether it was agreed that it would be delivered without the sticker.

[00:15:52] Speaker 01:
Reasons why don't even matter.

[00:15:54] Speaker 01:
You didn't perform your part of the contract.

[00:15:56] Speaker 01:
Your argument is they knew by September of 21 that you had breached the contract.

[00:16:01] Speaker 02:
Oh, yeah, absolutely.

[00:16:02] Speaker 01:
And they didn't do anything about it.

[00:16:03] Speaker 01:
That's your argument.

[00:16:04] Speaker 02:
Oh, yeah, on the statute of limitations.

[00:16:06] Speaker 02:
Absolutely.

[00:16:07] Speaker 02:
Yeah, the statute of the contractual statute of limitations is a straightforward application of the one year statute of limitations.

[00:16:14] Speaker 02:
Opposing counsel was here today.

[00:16:15] Speaker 02:
Mr. Hester wrote a letter on September 9th, 2021.

[00:16:18] Speaker 01:
It was his letter?

[00:16:19] Speaker 02:
It's his letter.

[00:16:20] Speaker 02:
In September of 2021?

[00:16:21] Speaker 02:
September 9th, 2021.

[00:16:23] Speaker 01:
And nothing else happens until March of 23?

[00:16:26] Speaker 02:
They didn't file their claim until May of 23.

[00:16:29] Speaker 02:
They sent a quote follow-up email in March of 2023, following up on the September 9th letter.

[00:16:38] Speaker 02:
Accounting for the cost they incurred to complete the container when they chose to have separate contractors complete the container And then offering to settle the claim that they noticed in September So I believe the panel is absolutely right that there's no there's no independent injury or separate cause of action that arises There's generated by a follow-up email a year and a half later

[00:17:05] Speaker 02:
that seeks to settle a claim that they noticed and had all the information that they needed at the time back in September of 2021.

[00:17:14] Speaker 04:
Let's talk about your attorney's fees.

[00:17:18] Speaker 02:
Sure.

[00:17:19] Speaker 04:
What's your best case to support your argument that the statute, ORS 20.096, applies to the contract here?

[00:17:29] Speaker 04:
I just had some questions about Juul, and I guess it's Aubrey Towers that followed Juul.

[00:17:36] Speaker 04:
Yes.

[00:17:37] Speaker 04:
Are they analogous to the facts in this case?

[00:17:43] Speaker 02:
I would say generally they are, yes.

[00:17:45] Speaker 02:
Jewell interpreted, that's a seminal case by the Oregon Supreme Court that interpreted the reciprocity statute, section 20.096.

[00:17:55] Speaker 02:
It broadly applied it.

[00:18:00] Speaker 02:
So in that case, the plaintiff was a cosmetology student.

[00:18:03] Speaker 02:
He sued the school that he was enrolled at after they terminated him from the program.

[00:18:11] Speaker 02:
the jury found for the plaintiff's student.

[00:18:13] Speaker 02:
In his enrollment agreement, there was a fee provision that was one-sided.

[00:18:18] Speaker 02:
It basically said the student understands and agrees to pay all costs and charges, including attorney fees, necessary for the collection of any amount not paid when due.

[00:18:33] Speaker 02:
The school appealed the attorney's fees award that the student got.

[00:18:38] Speaker 02:
The appellate court reversed, but then the Supreme Court

[00:18:41] Speaker 02:
interpreted 20.096 very broadly.

[00:18:45] Speaker 02:
and said that the student, even though the attorney fee provision was limited to the collection of amounts that were not paid when due, that his action for breach of the enrollment program is actually included in the reciprocity statute.

[00:19:02] Speaker 02:
So it extended it to a different type of action and went through the history and the legislative intent of the reciprocity statute and said it was, you know, it was intended to be applied broadly.

[00:19:14] Speaker 04:
But in Aubrey Towers, it was the plaintiff that was seeking fees, not the defendant, right?

[00:19:23] Speaker 02:
Right, that's correct.

[00:19:24] Speaker 04:
That seems to be a distinguishing fact from here.

[00:19:29] Speaker 02:
Well, I would actually say Aubrey Towers, which was decided after the two cases that applied JUUL and was decided after the two cases that two picture sites on the fee issue, Spectre, Nove and Quality Contractors.

[00:19:48] Speaker 02:
I would say that case also applies the rest process statute broadly in that it ultimately found that fees are available applying JUUL

[00:19:59] Speaker 02:
To the part to the prevailing party and the type of action contemplated by the fee provision Quote regardless of which party brought the claim.

[00:20:08] Speaker 03:
Yeah, so it's I mean it seems to me under Oregon law the question is How does this contract trigger the statute and that boils down to does the contract have to have some sort of magic words reference to?

[00:20:19] Speaker 03:
Prevailing party or not because if the statute is triggered the statute basically rewrites people's contracts in Oregon to say if you're going to provide for

[00:20:28] Speaker 03:
Attorney fees and contract actions.

[00:20:30] Speaker 03:
It's going to be reciprocal either way, right?

[00:20:32] Speaker 02:
No, that's correct.

[00:20:33] Speaker 02:
That's a very good point

[00:20:34] Speaker 03:
So then it comes down to his point about, no, there's case law out there that says you need the magic words.

[00:20:39] Speaker 03:
This provision doesn't say anything about a prevailing party and so it doesn't apply.

[00:20:42] Speaker 03:
Why is that?

[00:20:42] Speaker 03:
I mean, I think you think that's wrong.

[00:20:44] Speaker 03:
Why is that wrong?

[00:20:44] Speaker 02:
I do.

[00:20:45] Speaker 02:
I would point to Juul again.

[00:20:46] Speaker 02:
In Juul, the fee provision didn't have a prevailing party, any explicit prevailing party language in it.

[00:20:52] Speaker 02:
It just simply said the student acknowledges that they will pay costs and expenses including attorney's fees necessary to collect any amount due that was

[00:21:04] Speaker 02:
not paid when due.

[00:21:06] Speaker 02:
So there's no explicit prevailing party language in that provision.

[00:21:09] Speaker 02:
And I would also suggest that suppose in that case the school sues a student for say $10,000 of tuition that was not paid.

[00:21:22] Speaker 02:
The school wins is awarded $1 out of the $10,000.

[00:21:27] Speaker 02:
The school is clearly not the prevailing party, overall prevailing party on that claim.

[00:21:34] Speaker 02:
The Supreme Court of Oregon said the reciprocity statute applies in that circumstance to that fee provision.

[00:21:41] Speaker 04:
But I guess the other question I would have is why didn't Contact Pro draft the contract here?

[00:21:49] Speaker 02:
It was a form that ContactPro used but the parties went back and forth and negotiated several provisions including two pictures adding the mirror language that entitles, you know, that says two pictures can have attorney's fees when it pursues its rights under the contract.

[00:22:11] Speaker 02:
It also added the language about submitting the claim for reimbursement.

[00:22:15] Speaker 02:
So the contract was negotiated back and forth.

[00:22:18] Speaker 04:
So you're saying it's contested that you drafted the contract?

[00:22:22] Speaker 04:
Yes.

[00:22:42] Speaker 04:
Then just outline, because you're the prevailing party here, I guess that's what you're asserting, right?

[00:22:50] Speaker 04:
You should get attorney fees because of what words in the contract that trigger the statute?

[00:23:00] Speaker 02:
Well, so the contract has two mirroring attorney fees provision.

[00:23:05] Speaker 02:
It says either party, the same language.

[00:23:08] Speaker 02:
It just substitutes the parties either way.

[00:23:11] Speaker 02:
So in some ways, it is a reciprocal attorney's fees provisions in the contract, but they're only offensive.

[00:23:20] Speaker 02:
So they only consider when one party pursues their claims.

[00:23:24] Speaker 02:
We were awarded fees under the statute because we prevailed on the claim that two pitchers brought.

[00:23:30] Speaker 02:
And the reciprocity statute says, you get attorney's fees if you prevail on a claim, regardless of

[00:23:37] Speaker 02:
if the provision says you're the party that, you know, the prevailing party gets fees regardless if it says you're the party that's entitled to fees.

[00:23:46] Speaker 02:
So again, Juul has no explicit prevailing party language in the attorney's fees provision.

[00:23:54] Speaker 02:
That was at issue in that case.

[00:23:56] Speaker 02:
And the Oregon Supreme Court interpreted it and said the arrest-prostitute statute applies.

[00:24:18] Speaker 02:
I'd also like just to point out if it's okay with the panel going back to the statute of limitations issue.

[00:24:28] Speaker 02:
The contract does not have any language that obligates ContactPro to respond to a claim for reimbursement in any way.

[00:24:40] Speaker 02:
It just says that two pitchers can submit a claim for reimbursement.

[00:24:47] Speaker 02:
There's almost two levels of unbound time.

[00:24:49] Speaker 02:
If you go with two pictures interpretation here, the position here, they can wait five or 10 years, submit a claim for reimbursement, and then wait an unknown amount of time for ContactPro to respond before

[00:25:08] Speaker 02:
The question is, when does ContactPro possibly breach that obligation?

[00:25:13] Speaker 02:
There's no obligation in the contract to even respond to the claim for reimbursement that would constitute a breach.

[00:25:19] Speaker 02:
So there's an unbound amount of time that under two pictures interpretation, there's an unbound amount of time that can wait to submit the claim for reimbursement.

[00:25:26] Speaker 02:
And there's an unbound amount of time that can wait in order to say, oh, wait a second, now you breached by not responding to our claim for reimbursement.

[00:25:34] Speaker 02:
And that obviously reads the one-year contractual statute of limitations out of the contract.

[00:25:40] Speaker 02:
It also violates the statutory four-year provision

[00:25:45] Speaker 02:
in Oregon that explicitly says you can't extend, by contract you can't extend the statute of limitations beyond four years.

[00:26:00] Speaker 02:
So I think respectfully I think the panel, if you don't have any other questions I might submit there.

[00:26:07] Speaker 04:
Thank you very much.

[00:26:08] Speaker 02:
Thank you.

[00:26:16] Speaker 00:
Thank you.

[00:26:16] Speaker 00:
Just a few points.

[00:26:17] Speaker 00:
I know my time is tight.

[00:26:19] Speaker 00:
The Jewel case and the Aubrey Towers case both involve prevailing party contract arrangements on the fee awards.

[00:26:27] Speaker 00:
So those are both cases that are subject.

[00:26:29] Speaker 03:
I'm not sure if that's true, but I'm looking at Benchmark Northwest, which is an Oregon Court of Appeals decision that discusses Jewel and some of these other cases.

[00:26:37] Speaker 03:
And it quotes in full the contract provision at issue there that addressed fees.

[00:26:42] Speaker 03:
And there is nothing about a prevailing party in there.

[00:26:44] Speaker 03:
In fact, that provision said,

[00:26:45] Speaker 03:
that you're going to get a recovery of fees even if no lawsuit is filed.

[00:26:50] Speaker 03:
So, and they've said that the statute was triggered by that language.

[00:26:53] Speaker 03:
So, I'm not sure I follow your argument that you need the magic words.

[00:26:57] Speaker 00:
Well, the quality, I mean, first of all, let's go back to Juul.

[00:27:02] Speaker 00:
I'm quoting out of Juul and it's at 290 Oregon 885 at page 887 and this is a quote.

[00:27:13] Speaker 00:
The maker further understands and agrees to pay all costs and charges for attorney's fees necessary for the collection of any amount not paid when due.

[00:27:21] Speaker 00:
The Oregon courts have construed that kind of language as a prevailing party requirement.

[00:27:26] Speaker 00:
In other words, if we bring a case against you and we prevail, you owe us fees.

[00:27:31] Speaker 00:
So it was a prevailing party requirement.

[00:27:33] Speaker 00:
It didn't use those words, but it had that concept.

[00:27:36] Speaker 03:
I understood your argument before to be you need the words.

[00:27:39] Speaker 00:
It's the words or the functional equivalent that's out of quality contractors quality contract says Contractor says the statute applies quote only to contractual provisions awarding attorney's fees to the prevailing party or its functional equivalent And that's 9 11 p second at 1270 so if there's that little wiggle room.

[00:28:01] Speaker 03:
Why isn't your contract provision the functional equivalent?

[00:28:03] Speaker 00:
I

[00:28:04] Speaker 00:
because there's no reference to prevailing or any comparable concept in the fee language.

[00:28:10] Speaker 00:
The fee language doesn't, it says if you have to pursue a claim for your remedies, then you're entitled to your fees.

[00:28:19] Speaker 00:
It does not say you have to prevail on that claim.

[00:28:22] Speaker 00:
There's no comparable concept.

[00:28:24] Speaker 00:
In the Oregon cases, Aubrey Towers and in Jewel

[00:28:30] Speaker 00:
both.

[00:28:30] Speaker 00:
In Aubrey Towers, the contract, and again quoting 278P3 at 49, the contract provided that, quote, the prevailing party was entitled to attorney's fees.

[00:28:42] Speaker 00:
And quality contractors, which is binding here on the court, is a construction of Oregon law that says the statute doesn't apply to a fee arrangement like this, which does not provide, it does not require a prevailing party.

[00:28:59] Speaker 04:
Thank you.

[00:29:00] Speaker 04:
Thank you, your honor.

[00:29:03] Speaker 04:
Mr. Hester, Mr. Bush, really appreciate your argument presentations here today.

[00:29:08] Speaker 04:
The case of WGBAR management LLC versus Centech Pro LLC is now submitted.