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 agreement 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 contracts 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 decision 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 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). 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 plaintiff’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 ordinarily 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 inspection, 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 negligence, some of the exterior elements of her house—the windows, 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 evidence that all the acts or omissions that gave rise to plaintiff’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 complaint 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 holding 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 inapplicable. It also agreed that ORS 12.115(1) applied and that the 

alleged acts or omissions that gave rise to plaintiff’s negligence 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 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.” 

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 negligent 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 subsection, 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 negligent 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 determining 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 determining whether the notice given was sufficient). That subsection provides:

“‘Substantial completion’ means the date when the contractee accepts in writing the construction, alteration or 

repair of the improvement to real property or any designated portion thereof as having reached that state of completion 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 alternative, 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 construction, 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 contract 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 contractor”). 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 construction contract to construct, alter, or repair a home. Each 

is a “contractee.” However, the context in which the legislature 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 accepting 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 contract 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 contract 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) (describing statutory construction methodology). ORS 12.135 was 

enacted in 1971 and, since then, has been amended on multiple occasions. That statute, however, has not been amended 

in a way that affects the definition of “substantial completion” in subsection (4)(b) or the role that “substantial completion” 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 fixing the time from which these periods are measured, specifically about claims that might ‘arise’ from latent defects in 

construction work long after a potential defendant had completed 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 improvement to real property or within six years after the acceptance 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 initial 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 committee 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 provided that the period of repose would run from “substantial completion of such construction, alteration, or repair” 

of the improvement, and it defined “substantial completion” 

as including essentially the same two events that the original 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 accordance 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 “substantial 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 contractual 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 responsible 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 relevant in construction of school buildings when school district 

wants to occupy part of the building). As that example illustrates, 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 indicate 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 completion” that could serve as definitive evidence of substantial completion, and an AGCA representative explained that 

there is “an instrument of some kind that says that the project 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 contract 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 existing 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 legislature reasonably could have chosen to do so.
564 Shell v. Schollander Companies, Inc.

Second, the legislature reasonably could have concluded that, for purposes of statutes of repose, “spec” houses 

present different issues from houses built pursuant to construction 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 “contractees” 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 construct, 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 judgment 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.