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PRO EXCAVATING, INC. v. ZIEBART

95C-11868; CA A92784.

939 P.2d 1187 (1997)

148 Or. App. 436

PRO EXCAVATING, INC., an Oregon corporation, Appellant, v. Ronald L. ZIEBART and Tina L. Ziebart, husband and wife; Bank of Salem, an Oregon banking corporation; and Jack Yarbrough, Respondents, and Marion County, a political subdivision of the State of Oregon; and Le Rud & Son, Inc., an Oregon corporation, Defendants.

Court of Appeals of Oregon.

Decided June 11, 1997.

Attorney(s) appearing for the Case

Robert J. Thorbeck, Salem, argued the cause and filed the brief for appellant.

John E. Storkel, Salem, argued the cause and filed the brief for respondents Ronald L. Ziebart and Tina L. Ziebart.

Robert J. Curtis argued the cause for respondents Bank of Salem and Jack Yarbrough. With him on the brief was Jill F. Foster, Salem.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Plaintiff appeals a summary judgment for defendants in an action to foreclose a construction lien. We reverse and remand.

Plaintiff is a licensed excavating contractor that contracted with a developer to install street, storm drain, sanitary sewer and domestic water improvements for a new subdivision. The site preparation contract between plaintiff and the developer provided:

"The term `Engineer' wherever used in this contract shall...

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