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Neidhart v. Page

Court of Appeals of Oregon

January 22, 2015

Gail NEIDHART, Plaintiff-Respondent,
v.
Adrianne PAGE, Defendant-Appellant, and ALL OTHERS, Defendant

Submitted November 1, 2013

Washington County Circuit Court. C112822EV. Suzanne Upton, Judge.

Frank Wall filed the brief for appellant.

Charles M. Greeff and Law Office of Charles M. Greeff, P.C., filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.

OPINION

Page 1088

[268 Or.App. 644] LAGESEN, J.

Defendant, who rented a room in a house owned by plaintiff, appeals from a judgment in a Forcible Entry and Detainer (FED) proceeding that awarded possession of the rented premises and $2,201 in restitution for unpaid rent to plaintiff. Defendant assigns error to the trial court's denial of her motion to dismiss the proceeding and to the trial court's decision not to offset a prior judgment that defendant had obtained against plaintiff against the restitution award. We affirm.

The facts pertinent to the issues on appeal are not disputed. Defendant rented a room in a house owned by plaintiff in 2008. Defendant's monthly rent under the rental agreement was $355, with rent due " monthly in advance on the 4th day of each and every month." In 2011, conflicts developed between the parties as to their respective obligations under the rental agreement. As a result of those conflicts, defendant tendered less than the full amount of rent due under the rental agreement in February 2011; plaintiff declined to accept the tender. See ORS 90.417(1) (providing that " [a] landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely" ). The next month, March 2011, defendant tendered a rent payment of $355; plaintiff accepted that payment. Each month thereafter, through the rental period starting in October 2011, defendant either tendered less than the amount of rent due[1] or tendered no rent at all. Plaintiff declined to accept any partial payments of rent; as a result, defendant made no rent payments after March 2011.

After defendant failed to pay the rent due on October 4, 2011, plaintiff notified defendant by letter that plaintiff would terminate defendant's tenancy for nonpayment of rent and seek possession of the premises in the manner [268 Or.App. 645] authorized by ORS 90.394.[2] In

Page 1089

accordance with the requirements of ORS 90.394, the letter stated that defendant owed a total of $2,201 in unpaid rent for the period extending from February 2011 through October 2011, excluding March 2011, and informed defendant that she had 72 hours in which to pay that amount in order to cure the nonpayment of rent.

Defendant did not tender the payment of any amount of rent within the 72-hour period, and plaintiff initiated this FED proceeding to obtain possession of the premises. At the FED trial, defendant moved to dismiss. Defendant argued that plaintiff had accepted a " partial payment" of the February rent within the meaning of ORS 90.417(4)[3] [268 Or.App. 646] when plaintiff accepted defendant's payment of the March rent and had, consequently, waived the right to terminate the tenancy based on defendant's nonpayment of the February rent. Defendant further asserted that dismissal was required as a result of plaintiff's alleged waiver of the right to terminate the tenancy based on the nonpayment of the February rent.

The trial court rejected that argument and ultimately found that plaintiff was entitled to the premises. The court entered judgment awarding possession of the premises and $2,201 in restitution to plaintiff. In so doing, the trial court rejected defendant's request to offset against the restitution award the amount of a money judgment that defendant had obtained against plaintiff in a separate matter. The court noted that such an offset might be appropriate if the parties stipulated to it, ...


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