On November 13, 2025, the Oregon Court of Appeals published Seabold Construction Co., Inc. v. KOZ 2211 SW 4th Avenue, LLC, 344 Or App 688 (2025)—a decision that could signal the death knell for quantum meruit (unjust enrichment) claims in Oregon construction.
The Court’s Decision in Seabold
In Seabold, the plaintiff contractor Seabold sued the developer and owner KOZ for both breach of contract and quantum meruit. Seabold alleged KOZ failed to pay for completed work. KOZ moved to dismiss, attaching the written contract, and argued that because the contract was comprehensive—with detailed provisions governing delays, change orders, and compensation—Seabold could not sidestep those terms via a quantum meruit claim.
The trial court agreed, dismissing the quantum meruit claim for failure to state a claim, and later dismissing Seabold’s amended breach‐of-contract complaint with prejudice, citing untimeliness, lack of specificity, and failure to identify the specific contractual provisions supporting its claimed damages. The Court of Appeals affirmed, holding that Seabold’s quantum meruit claim was unavailable where a valid, detailed written contract governed the disputed work.
Kizer: The Precedent Behind Seabold
The Seabold decision follows Kizer Excavating Co. v. Stout Bldg. Contractors, LLC, 324 Or App 211 (2023). In Kizer, an excavation subcontractor, Kizer, encountered unanticipated site conditions—including an incorrect survey and groundwater—on a commercial project. Kizer completed substantially more excavation than the parties originally estimated and later submitted a change order for additional compensation that the general contractor Stout rejected as untimely. Kizer sued asserting breach of contract and quantum meruit. The trial court awarded Kizer damages on a quantum-meruit theory, treating the work as “extracontractual” once the change order was rejected.
The Oregon Court of Appeals reversed. It held that the extra excavation did not fall outside the subcontract’s scope such that an implied-in-law (quasi-contract) recovery was available. Because the parties’ express subcontract governed the risk and provided the procedure for seeking additional compensation, Kizer could not circumvent those contractual procedures by recovering in quantum meruit. As the Court stated, “if a dispute is governed by an express contract, no contract will be implied either in fact or in law, and the terms of the express contract control.”
Together, Seabold and Kizer underscore a strict, contract-formalistic approach: when parties have entered a written agreement that expressly addresses change orders, time, costs, and other risk‐allocation mechanisms, a contractor cannot ignore those provisions and instead rely on equitable or restitutionary remedies. In both Seabold and Kizer, the contractors attempted to reframe contract-governed issues—delay impacts in Seabold and extra work in Kizer—as unjust enrichment. In both cases, the Court rejected the claims.
Where Hoffman Differs from Kizer
What makes Kizer interesting is its contrast with City of Portland ex rel. Donohue & Fleskes Corp. v. Hoffman Const. Co., 286 Or 789 (1979), which the Seabold Court mentioned in a passing footnote, but never discussed. In Hoffman, subcontractor Donohue & Fleskes sought quantum meruit recovery after general contractor Hoffman allegedly breached the subcontract, interfered with performance, and ultimately wrongfully terminated the subcontract.
The Oregon Supreme Court in Hoffman held that quantum meruit was available under such circumstances. The subcontractor could recover the “reasonable value” of its labor, materials, and services when the general contractor’s conduct made performance substantially more difficult or costly, even if a contract existed. As the Court explained:
"Our cases recognize that quantum meruit recovery is available to a contractor whose performance has been made substantially more difficult and costly by the other party's actions, and that a finding that an abandonment of the contract can be inferred from the parties' actions is not required."
— Hoffman, 286 Or at 798.
In other words, Hoffman recognized an equitable carve-out to strict contract enforcement. Where owner or contractor misconduct frustrates contract performance, a quantum meruit claim may still be available – even if the contract has not been abandoned.
Hoffman Applied in TBH
The District of Oregon applied this exception in Hoffman in United States ex rel. TBH & Associates, LLC v. Wilson Construction Co., 965 F. Supp. 2d 1215 (D. Or. 2013). In TBH, a subcontractor on a Bonneville Power Administration transmission‑line project, TBH, claimed the general contractor Wilson Construction failed to pay under several change orders and also asserted a quantum meruit claim. Wilson moved for partial summary judgment to dismiss both the change‑order and quantum meruit claims.
Rather than dismissing the unjust enrichment claim, the Court rejected Wilson’s request and held that TBH’s quantum meruit claim was viable under Oregon law. Crucially, the Court based its reasoning on the decision in Hoffman, recognizing that a subcontractor may recover the reasonable value of its services when the other party's conduct has made performance substantially more onerous. The Court observed that TBH had presented factual issues showing that Wilson’s actions potentially frustrated the change‑order process or imposed unanticipated burdens—circumstances paralleling Hoffman. By allowing the quantum meruit claim to proceed, the TBH court underscored that equitable relief remains available even when a written contract exists, at least where there is a factual basis for equitable disruption or misconduct. This reflects Hoffman’s core principle: in construction, strict contract formalism may give way to restitution when one party’s behavior materially alters the agreed‑upon allocation of risk.
The Tension: Hoffman and TBH vs. Seabold and Kizer
Seabold and Kizer retreat from the more flexible, equitable remedy endorsed in Hoffman and TBH. They emphasize that if the contract covers the relevant risk and change-management mechanisms, then the contractor is bound by those terms and cannot recharacterize its dispute as unjust enrichment. Seabold and Kizer implicitly reject a “Hoffman-style” exception because, in their view, the contract is sufficiently comprehensive to govern all these issues—even though neither the Seabold nor Kizer court discuss Hoffman.
The tension with Seabold and Kizer, on the one hand, and Hoffman and TBH, on the other, thus arises. Hoffman—and TBH’s use of it—exemplifies situations in which equitable relief via quantum meruit is justified because “performance was made substantially more onerous” by the other party, disrupting the contract’s allocation of risk. But in Seabold and Kizer, the contract itself already allocated those risks—via delay provisions, change-order process, cost‑adjustment mechanisms—and Seabold failed to allege facts showing a Hoffman‑style disruption. Perhaps Seabold suggests that the “Hoffman exception” does not automatically apply simply because there are cost overruns or delay-related hindrances, but Seabold never discusses Hoffman except in a passing footnote.
Thus, when the contract already contemplates and provides a mechanism for handling such issues, as just about everyone does, then there may be no claim for quantum meruit. However, if there is specific misconduct—owner/construction manager conduct, interference, unknown site conditions—that frustrate or make performance materially more burdensome, perhaps there may be a claim for quantum meruit.
If you have questions about how Seabold, Kizer, or the Hoffman line of cases may affect your project or claims, please contact me or any member of our construction team.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
