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Oregon Judicial Department Appellate Court Opinions

FILED: November 6, 2002 IN THE COURT OF APPEALS OF THE STATE OF OREGON SAFEPORT, INC., an Oregon corporation, Respondent - Cross-Appellant, v. EQUIPMENT ROUNDUP & MANUFACTURING, INC., an Oregon corporation, Appellant - Cross-Respondent, EQUIPMENT ROUNDUP & MANUFACTURING, INC., an Oregon corporation, Third-Party Plaintiff - Appellant - Cross-Respondent, v. CLAY ALLEN, Third-Party Defendant - Respondent - Cross-Appellant, and PIONEER TRUST BANK, Third-Party Defendant - Respondent. 98C-10775; A112787 Appeal from Circuit Court, Marion County. Joseph V. Ochoa, Judge. Argued and submitted August 1, 2002. Robert J. Miller argued the cause for appellant - cross-respondent. With him on the briefs were Brien F. Hildebrand and Moomaw, Miller & Hildebrand, LLP. Thomas J. Murphy argued the cause for respondents - cross-appellants Safeport, Inc. and Clay Allen. With him on the briefs was Scott Hookland LLP. No appearance for respondent Pioneer Trust Bank. Before Landau, Presiding Judge, and Brewer and Schuman, Judges. BREWER, J. On appeal, reversed and remanded for entry of award of attorney fees for defendant; otherwise affirmed. On crossappeal, reversed and remanded for jury trial on plaintiff's breach of contract claim.
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Oregon Judicial Department Appellate Court Opinions

BREWER, J. Defendant Equipment Roundup & Manufacturing, Inc., appeals a judgment foreclosing its construction lien. It assigns error to the trial court's denial of its request for attorney fees and to the court's denial of its motion to reopen the record and amend its pleading to comply with statutory requirements for an award of attorney fees. Defendant also assigns error to the trial court's grant of priority over defendant's lien and its costs and disbursements in this action. Finally, defendant challenges the dismissal of its quantum meruit claim against the owner of the foreclosed property. Plaintiff Safeport, Inc., cross-appeals, assigning error to the trial court's denial of its request for a jury trial on its breach of contract claim. On defendant's appeal, we reverse and remand with respect to the denial of attorney fees and otherwise affirm. On plaintiff's cross-appeal, we reverse and remand. Plaintiff is a corporation, the sole shareholder of which third-party defendant Clay Allen serves as plaintiff's president. Allen owns real property on which plaintiff sought to establish a dry-land boat storage business. Plaintiff contracted with defendant to assemble a rack structure that would hold and store boats. Plaintiff agreed to make payments to defendant as the work progressed. During the construction process, problems arose that required extra work. Defendant performed the extra work with plaintiff's approval, but plaintiff later disputed that it was responsible for the charge for that work, which amounted to $20,142.49. Plaintiff also objected that the structure did not meet the specifications required by the contract and informed defendant that it would not make any more payments. As a result, defendant stopped work and filed a construction lien against the improvement and real property for $84,662.49, the amount of the original contract plus the charge for the extra work, less the amount of payments it had already received. Citing ORS 87.057(2), plaintiff demanded a list of materials and supplies with the charges therefor and a statement of the contractual basis for the owner's obligation. In its written reply, defendant asserted that ORS 87.057(2) requires a lien claimant to furnish such a list or a statement of the contractual basis, and it further stated that the original contract provided the basis for plaintiff's obligation. In addition, defendant included with its written response a list itemizing the labor and material costs for the extra work. Plaintiff then brought this action against defendant for breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, fraud, and negligence. Plaintiff demanded a jury trial. In its answer, defendant asserted counterclaims for breach of contract based on the amount unpaid on the contract and for quantum meruit. Defendant also brought a third-party claim against Allen and Pioneer Trust Bank (bank), seeking to foreclose its construction lien against the real property and alleging a superior interest to bank's mortgage lien against the property. In addition, defendant alleged a quantum meruit claim against Allen, asserting that Allen would be unjustly enriched if he were permitted to retain the benefit of the improvement without paying for its reasonable value. On defendant's motion for summary judgment, the trial court dismissed all of plaintiff's claims except for its breach of contract claim. The court bifurcated defendant's lien foreclosure counterclaim from the parties' contract claims, trying the lien foreclosure claim first. After the foreclosure trial, the court concluded that the lien was valid. The court found that defendant had substantially performed the contract, that it had installed the structures in a good and workmanlike manner, and that any further performance by defendant was excused by plaintiff's refusal to pay for the work already performed. In a post-trial hearing, the court awarded defendant the amount of the lien claim less $8,100 for remaining work to be performed under the contract. The court also concluded that plaintiff did not have a right to a jury trial on its breach of contract claim, because ORS 87.060(3) directs that, if the lien is allowed, the court will resolve all other pleaded issues. Having concluded in the lien foreclosure proceeding that defendant had not breached the contract, the court dismissed plaintiff's breach of contract claim. The court also dismissed defendant's quantum meruit claim, concluding that defendant had failed to sustain its burden of proof with respect to that claim. Defendant then submitted a statement for attorney fees. After conducting an evidentiary hearing, the court determined that an award of attorney fees was justified but nevertheless declined to make such an award because defendant had failed to plead and prove that it had furnished plaintiff with a list of materials and the charge therefor or a statement of contractual basis for the lien, as required by ORS 87.057(3). Finally, the court determined that defendant's lien was entitled to priority over bank's mortgage, but only as to the
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Oregon Judicial Department Appellate Court Opinions

segregated portion of the labor charge, $12,980.75. The court found that defendant had failed to provide bank with notice of the materials portion of the charge. The court awarded defendant its costs and disbursements but did not provide that those costs were entitled to priority over bank's mortgage. ATTORNEY FEES We begin by addressing defendant's assignments of error relating to the denial of its petition for attorney fees. Defendant argues that the trial court erred in denying attorney fees pursuant to ORS 87.060(5), which provides: "When notice of intent to foreclose the lien has been given, pleaded and proven as provided for in ORS 87.057, the court, upon entering judgment for the lien claimant, shall allow as part of the costs all moneys paid for the filing or recording of the lien and all moneys paid for title reports required for preparing and foreclosing the lien. In a suit to enforce a lien perfected under ORS 87.035 the court shall allow a reasonable amount as attorney fees at trial and on appeal to the party who prevails on the issues of the validity and foreclosure of the lien." ORS 87.057, in turn, provides, in part: "(2) Where a notice of intent to foreclose a lien has been given as provided by subsection (1) of this section, the sender of the notice upon demand of the owner shall furnish to the owner within five days after the demand a list of the materials and supplies with the charge therefor, or a statement of a contractual basis for the owner's obligation, for which a claim will be made in the suit to foreclose. "(3) A plaintiff or cross-complainant seeking to foreclose a lien in a suit to foreclose shall plead and prove compliance with subsections (1) and (2) of this section. No costs, disbursements or attorney fees otherwise allowable as provided by ORS 87.060 shall be allowed to any party failing to comply with the provisions of this section." In its first assignment of error, defendant argues that it is not a plaintiff or cross-complainant within the meaning of ORS 87.057(3) but, instead, is a third-party plaintiff. Therefore, defendant argues, any failure on its part to comply with subsection (3) cannot justify the denial of attorney fees under ORS 87.060. In its second assignment of error, defendant argues, in part, that, even if ORS 87.057 does apply to it as a third-party plaintiff, the trial court erred in concluding that defendant did not prove compliance and erred in denying defendant's motion to amend the pleadings to conform to the evidence. Defendant asserts that it offered sufficient evidence to prove that it complied with ORS 87.057(2). As defendant notes, the trial court declined to award attorney fees, not because plaintiff did not receive the required information but because the court found that defendant did not plead and prove that it had provided the information. We need not address defendant's first assignment of error because we conclude that, even if ORS 87.057 does apply here, defendant proved compliance with its requirements, and the trial court erred in denying defendant's motion to amend its pleading to conform to that evidence. Plaintiff does not challenge defendant's assertion that it submitted to the trial court the evidence required by the statute. Indeed, both plaintiff and defendant attached copies of the relevant documents to their submissions in connection with plaintiff's motion for partial summary judgment. Instead, plaintiff urges that, because the summary judgment motion was unsuccessful, the evidence did not become part of the relevant record. Plaintiff asserts that defendant had to present evidence of its purported compliance at trial, or no later than the post-trial hearing on its attorney fee claim, and that defendant failed to do so. On the last point, plaintiff is mistaken. ORCP 68 C(4)(c)(i) provides that, in an attorney fee proceeding, "[t]he parties shall be given a reasonable opportunity to present evidence and affidavits relevant to any factual issue." That rule relaxes, in part, the format for the presentation of evidence in an attorney fee proceeding. In keeping with that principle, at the conclusion of the attorney fee hearing, the trial court directed the parties to submit memoranda on several issues, including whether defendant had satisfied the conditions for an award of attorney fees pursuant to ORS 87.060(5). In its memorandum, defendant specifically incorporated its response to the summary judgment motion. Plaintiff presented no countervailing evidence.

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In its motion for partial summary judgment, plaintiff argued that it, rather than defendant, was entitled to attorney fees because the documents that defendant submitted were insufficient to satisfy the requirements of ORS 87.057(2). Plaintiff first asserted that that statute entitled it to all of the information described therein, including both a list of materials with itemized charges and a statement of the contractual basis for its obligation, rather than one or the other. It further asserted that, if it was not entitled to both, the documents provided by defendant contained different amounts for the charges for the extra work that defendant performed. Plaintiff summarized its argument, stating, "The dispute herein lies in the interpretation of ORS 87.057. This is a pure question of law * * *." ORS 87.057(2) unambiguously provides that, on demand by the property owner, a lien claimant must furnish "a list of the materials and supplies with the charge therefor, or a statement of a contractual basis for the owner's obligation * * *." (Emphasis added.) Defendant's response to plaintiff's demand included a statement of the contractual basis for both the original contract and the extra work. On de novo review, ORS 19.415(3), we conclude that defendant proved that it had provided the information required by ORS 87.057(2). However, our analysis does not end there. In addition to proving that it complied with the statute, defendant was required to plead compliance. Defendant argues that the trial court erred in denying its motion to amend its third-party complaint to conform to the evidence it presented in the attorney fee proceeding. We review that decision for abuse of discretion. Contractors, Inc. v. Form-Eze Systems, Inc., 68 Or App 124, 129, 681 P2d 148, rev den, 297 Or 824 (1984). ORCP 23 governs the amendment of pleadings. ORCP 23 B provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining an action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence." Importantly, ORCP 23 A provides, in part, that "leave [to amend] shall be freely given when justice so requires." All that stands between defendant and an award of attorney fees is the necessary pleading. In its opinion letter following the hearing on attorney fees, the trial court stated: "This case is one where the award of attorneys fees against the plaintiff would, in the court's opinion, be clearly justified. Plaintiff's prosecution of this case was overly aggressive and protracted in nature. Plaintiff and plaintiff's first attorney were advised of this early on by the presiding judge first assigned to this case and this court which subsequently presided over the trial of the case. A two day trial extended to five days. Plaintiff's case on foreclosure of the construction lien was presented in a repetitive and rambling manner which lacked focus and organization. Plaintiff's second counsel was left in the unenviable position of trying to retry the construction lien case when the court later decided the remaining claims. This took additional time, which would have been unnecessary if the case had previously been presented in a straight forward manner. The court finds [expert witness's] testimony regarding the reasonableness of defendant's attorneys fees in terms of hourly rates and time spent to be credible." In spite of its determination that an attorney fee award was "justified," the trial court denied recovery, citing E. Carl Schiewe, Inc. v. Brady, 46 Or App 441, 611 P2d 1184 (1980). In E. Carl Schiewe, Inc., we reversed the trial court's award of attorney fees to a claimant that had failed to plead and prove that it had responded to the defendant's demand under ORS 87.057(2). The claimant offered evidence of its compliance with the statute for the first time on appeal but never filed a motion to amend its pleading. Thus, the claimant's effort failed both the pleading and proof prongs of the statutory requirement. The circumstances here are materially different; defendant offered evidence that it had complied with the statute, and it also moved to amend its pleading to conform to that evidence.

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Oregon Judicial Department Appellate Court Opinions

Although the trial court "has broad discretion in determining when justice requires amendment to a complaint," Contractors, Inc., 68 Or App at 129, that discretion is not unlimited. In Ramsey v. Thompson, 162 Or App 139, 147, 986 P2d 54 (1999), rev den, 329 Or 589 (2000), we reversed a trial court's denial of a motion to amend a party's pleading. We identified "four considerations bearing on the appropriate exercise of discretion: (1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments." With respect to the first consideration, we noted that "the proposed amendments were not the product of some unilateral effort by petitioner to interject entirely new claims into the litigation. Rather, * * * they were proffered to cure deficiencies that defendant identified." Id. at 147. Similarly, in this case, defendant's motion to amend did not introduce any new claims but, instead, sought to cure a pleading omission. Regarding the second Ramsey consideration, plaintiff suggests that it would be prejudiced if defendant's motion were granted because it did not have an opportunity to offer evidence contradicting defendant's assertion that it complied with the statute. However, plaintiff has identified no particular prejudice that it would suffer if the amendment were allowed. We confronted the same argument in Ramsey, where the defendant claimed prejudice because it had not "'expended resources in preparing a defense to those claims.'" Id. We noted, "Absent from that generic assertion, which could apply to any amendment, is any description of how defendant would be prejudiced." Id. (emphasis in original). In this case, not only did plaintiff fail to object to the admission of the evidence that defendant had complied with ORS 87.057(2), plaintiff itself previously had offered the same evidence in support of its own motion for summary judgment. Clearly, both parties recognized that the issue was in contention between them. See Holmes v. Oregon Assn Credit Mgmt., 52 Or App 551, 558, 628 P2d 1264, rev den, 291 Or 771 (1981). (1) In any event, because plaintiff does not identify any further evidence that it might have proffered, its vague claim of prejudice is not well taken. Regarding the third Ramsey consideration, the timing of the proposed amendment, plaintiff notes that, when defendant filed its motion to amend, more than two years had passed since it filed its original pleading. Plaintiff relies on Downs v. Waremart, Inc., 137 Or App 119, 903 P2d 888 (1995), rev'd in part on other grounds, 324 Or 307, 926 P2d 314 (1996). In Downs, we affirmed the trial court's denial of the plaintiff's motion to amend the complaint based on the age of the case and the fact that the motion to amend was made fewer than 30 days before trial. Id. at 140-41. But in Downs, the plaintiff sought to add an entirely new legal theory to her complaint. In contrast, here, defendant merely sought to amend its pleading to include facts demonstrating compliance with the procedural requirements of ORS 87.057. ORCP 23 B directs that amendment of the pleadings to conform to the evidence "may be made upon motion of any party at any time, even after judgment." (Emphasis added.) See Hussey v. Huntsinger, 72 Or App 565, 569, 696 P2d 580 (1985) (adopting a rule for amendment of pleadings "which will produce decisions on the merits rather than setting procedural traps for the parties"); see also McAmis Industries v. M. Cutter Co., 161 Or App 631, 636, 984 P2d 909, rev den, 329 Or 553 (1999) (allowing supplemental answer where issues raised in the answer were fully and fairly litigated and no prejudice to the other party resulted); Mund v. English, 69 Or App 289, 292, 684 P2d 1248 (1984) (finding abuse of discretion even though the plaintiff sought to amend its allegations after trial). Because plaintiff asserts no cognizable prejudice with respect to the timing of defendant's motion to amend, the third factor favors allowance of the motion. With respect to the fourth consideration, the colorable merit of the proposed amendment, we have already noted that all that stands between defendant and an award of attorney fees is the proper pleading. After considering the relevant factors governing the trial court's discretion, we conclude that the court erred in denying defendant's motion to amend its pleading to allege compliance with ORS 87.057(2). Accordingly, we reverse and remand for entry of a judgment awarding attorney fees to defendant. ORS 87.060(5). JUDGMENT PRIORITY

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Oregon Judicial Department Appellate Court Opinions

In its fourth assignment of error, defendant asserts that the trial court erred in not awarding it priority to the extent of the full amount of the foreclosed lien because, in defendant's view, ORS 87.025(3) does not require a contractor filing a lien for both materials and labor to provide notice of the lien to a holder of a recorded mortgage. Defendant's argument concerns the meaning of ORS 87.025. Community Bank v. U. S. Bank, 276 Or 471, 478, 555 P2d 435 (1976). In accordance with the methodology required by PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), we examine the text of the statute in context and, if necessary, its legislative history and other aids to construction. When examining statutory context, "relevant are any prior judicial decisions construing the statutory language at issue." Cooksey v. Portland Public School Dist. No. 1, 143 Or App 527, 531, 923 P2d 1328, rev den, 324 Or 394 (1996) (citing State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992)). ORS 87.025(3) provides: "No lien for materials or supplies shall have priority over any recorded mortgage or trust deed on either the land or improvement unless the person furnishing the material or supplies, not later than eight days * * * after the date of delivery of material or supplies for which a lien may be claimed delivers to the mortgagee either a copy of the notice given to the owner under ORS 87.021 to protect the right to claim a lien on the material or supplies or a notice in any form that provides substantially the same information as the form set forth in ORS 87.023." The Supreme Court construed ORS 87.025(3) in Benj. Franklin S & L v. Hallmark, 257 Or 436, 479 P2d 740 (1971), on facts similar to those present here. A mortgagee lent money for the construction of an improvement and recorded a mortgage to secure the debt. The owner contracted with the defendants to furnish both labor and materials. After the owner failed to pay, the defendants filed a lien without itemizing the charges for labor separately from those for materials. The issue on appeal was "what the effect is upon the priorities where the lien lumps both labor and materials and no notice of the delivery of materials has been given to the mortgagee." Id. at 438 (emphasis in original). The court compared the provisions requiring notice to owners and to mortgagees, (2) noting that neither requires notice of labor performed, but that "the owners' notice statute[] has a provision that ORS 87.025, the mortgagees' notice statute, does not. [The owners' notice statute] provides that where the lien is for both labor and materials, no notice is necessary to secure a lien that is prior to the owner's interest. This subsection was added by [Oregon Laws 1967, chapter 602, section 1]. No similar section was added to ORS 87.025." Benj. Franklin S & L, 257 Or at 439 (footnote omitted). The court concluded that "it was not the intention of the legislature to relax the notice requirements to mortgagees, where both labor and materials were furnished, as it relaxed them in relation to owners." Id. at 440. Benj. Franklin S & L thus makes clear that a lien claimant must provide a prior mortgagee with notice of materials provided, whether or not labor is also provided. Because defendant did not provide notice to bank, it lost priority except as to the separately itemized labor charges, which require no notice. Defendant suggests that Benj. Franklin S & L is inapposite because the owners' notice statute in effect when it was decided did not include the commercial improvement exception now found in ORS 87.021(3)(b). Although ORS 87.021(3)(b) limits the notice exception to liens involving commercial improvements, the previous embodiment of that exception--former ORS 87.020(5) (1967)--applied to any improvement. ORS 87.021(3)(b) narrowed the circumstances under which notice to owners is not required. However, ORS 87.025(3) still lacks an exception for commercial improvements. Contrary to defendant's argument, later legislative enactments will not be interpreted as superseding prior judicial decisions unless the legislative intent to do so is clear. See U.S. National Bank v. Heggemeier, 106 Or App 693, 699, 810 P2d 396 (1991) ("[I]n the light of existing case law, the failure of the legislature expressly to change the law is evidence of a legislative intention not to change it."). No such legislative intent is manifest here. Defendant also argues that it was not required to give bank notice because ORS 87.025(3) requires a contractor to deliver to a mortgagee "a copy of the notice given to the owner under ORS 87.021 to protect the right to claim a lien on the

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material or supplies or a notice in any form that provides substantially the same information as the form set forth in ORS 87.023." Defendant contends that, because ORS 87.021(3)(b) excused it from providing notice to the owner, it was also excused from providing notice to the mortgagee. The trial court correctly held, however, that the phrase "or a notice in any form" in ORS 87.025(3) defeats defendant's contention. That phrase provides an alternative means of giving notice in the event that, as here, the lien claimant did not give notice to the owner. A mortgagee's entitlement to notice does not depend on whether the owner received notice. Defendant urges that, even if it was required by ORS 87.025(3) to give notice, we should excuse that requirement because bank was apprised of the construction project and, by making a telephone call, or by visiting the project site, bank could have obtained much more information than it would have received from the statutory notice. Whether or not that is so, we cannot accept defendant's implicit invitation to engraft such an exception onto the statute. See ORS 174.010 (enjoining courts "not to insert what has been omitted, or to omit what has been inserted"). Defendant also contends that the Supreme Court created an exception to the statutory notice requirement in Hays v. Pigg, 267 Or 143, 148, 515 P2d 924 (1973). There, the court upheld a lien that contained unsegregated lienable and nonlienable charges, holding that the owners "had sufficient knowledge with which to question the amount of the lien * * *, and they would not have been prejudiced by a lack of information in settlement prior to the commencement of the suit. A simple question would have supplied sufficient information concerning the status of the settlement." Defendant argues that, in this case, bank had sufficient knowledge to make a similarly simple inquiry. In Hays, however, the owners received notice of the lien, albeit notice that required asking a "simple question" to clarify. Here, bank received no notice whatsoever. Accordingly, Hays does not assist defendant. Because defendant failed to provide bank with notice of defendant's right to a lien, defendant was not entitled to priority for materials charges and for labor charges that were lumped together with materials charges. The trial court correctly held that only the itemized labor portion of the lien was entitled to priority over bank's mortgage. PRIORITY OF COSTS AND DISBURSEMENTS In its fifth assignment of error, defendant contends that the trial court erred in denying its costs and disbursements priority over bank's mortgage against the property. Defendant argues that ORS 87.060(5) entitles it to recover costs associated with its lien claim and that, because the trial court granted a portion of the judgment on the lien claim priority over bank's mortgage, its costs and disbursements also should have priority. ORS 87.060(5) provides for an award of costs and disbursements and, where appropriate, attorney fees to a party who prevails on the issues of the validity and foreclosure of a construction lien. Because defendant prevailed over plaintiff and Allen on the lien claim, its costs and disbursements are entitled to priority over those parties' interests in the property. However, that conclusion does not resolve the priority dispute between defendant and bank. No statute or case law addresses that issue directly. However, in general, a trial court has discretion whether or not to award any costs and disbursements. ORCP 68 B. As between defendant and bank, the court did not abuse its discretion in denying priority to defendant's lien. Defendant and bank were opposed only with respect to the issue of lien priority. The result was mixed, but it tilted, if at all, against defendant. Defendant prevailed over bank's mortgage only as to $12,980.75 of its lien claim. Bank prevailed with respect to the remainder of defendant's lien recovery, $62,581.74. The trial court did not abuse its discretion in denying lien priority to defendant's judgment for costs and disbursements. QUANTUM MERUIT Defendant assigns error to the portion of the judgment dismissing its quantum meruit claim against Allen. In

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particular, defendant challenges the trial court's determination that defendant failed to satisfy its burden of proving that Allen had been unjustly enriched at defendant's expense. We consider the evidence in the light most favorable to Allen, the prevailing party, and reverse only if there is no evidence to support the trial court's decision. Brown v. Zimbrick Logging, 273 Or 463, 466, 541 P2d 1388 (1975). A claim for quantum meruit is a quasi-contractual claim. Robinowitz v. Pozzi, 127 Or App 464, 467, 872 P2d 993, rev den, 320 Or 109 (1994). The elements of the claim are a benefit conferred, awareness by the recipient that a benefit has been received, and judicial recognition that, under the circumstances, it would be unjust to allow retention of the benefit without requiring the recipient to pay for it. Jaqua v. Nike, Inc., 125 Or App 294, 298, 865 P2d 442 (1993). The parties' arguments cover considerable legal acreage, but we need consider only one of them. Allen argues that defendant is not entitled to quantum meruit recovery because it successfully foreclosed its lien against the improvement. Defendant asserts that lien foreclosure is not a claimant's exclusive remedy, that it is entitled to money judgments on both the lien and the quantum meruit claims, and that it should have the choice of satisfying the sums owed it from either source. Allen relies on two decisions of this court. In the first, A-C Construction, Inc. v. Bakke Corp., 153 Or App 41, 956 P2d 219, rev den, 327 Or 553 (1998), the plaintiff subcontractor filed both a lien foreclosure claim and a quantum meruit claim. We affirmed the judgment foreclosing the lien. We noted that, "[b]ecause plaintiff has recovered the amount owed under the contract in its lien foreclosure action, we need not reach the alternative argument on the quantum meruit claim." Id. at 52 (citing King v. All Pro Services, Inc., 120 Or App 479, 484, 852 P2d 943 (1993)). In the second case, Tum-A-Lum Lumber v. Patrick, 95 Or App 719, 770 P2d 964 (1989), the defendant property owner hired a contractor to build a barn, and the plaintiff supplied materials to the contractor for use in the construction. The contractor ceased work before the barn was finished, and the defendant did not pay for the materials. Instead of filing a construction lien or suing the contractor directly, the plaintiff filed a quantum meruit claim against the property owner. We held that "a material element that must be alleged and proved for a claim of unjust enrichment to succeed is that the remedies against the contractor were exhausted." Id. at 721. Because "[n]o direct contractual relationship existed between the parties * * *, a furnisher of materials must exhaust all remedies against the contractor before the 'enrichment' can be 'unjust.'" Id. at 722 (emphasis in original). In a footnote, we noted that "'[a] statute that is particularly addressed to situations of unjust enrichment may also preclude a claim to restitution, though the claim would otherwise be maintainable * * *[. By] providing remedies for certain cases of the type it deals with, the statute may be held to foreclose additional or more extensive relief in those cases, or to foreclose restitution in other cases of the same type.'" Id. at 722 n 3 (quoting Restatement (Second) Restitution

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