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Neidhart v. Page

Court of Appeals of Oregon

May 13, 2015

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

C112822EV. Washington County Circuit Court. Suzanne Upton, Judge. On appellant's petition for reconsideration filed February 6, 2015. Opinion filed January 22, 2015. 268 Or.App. 643, 342 P.3d 1087 (2015) .

Frank Wall, for petition.

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

OPINION

LAGESEN, J.

[271 Or.App. 140] In this appeal from a Forcible Entry and Detainer (FED) judgment, we affirmed the judgment of the trial court awarding possession of the premises at issue to plaintiff, who was defendant's landlord. In so doing, we characterized the judgment on appeal as " award[ing] possession of the rented premises and $2,201 in restitution for unpaid rent to plaintiff." Neidhart v. Page, 268 Or.App. 643, 644, 342 P.3d 1087 (2015). We also rejected what we understood to be defendant's argument about the trial court's obligation to offset a monetary judgment that defendant had obtained against plaintiff in a different proceeding against defendant's unpaid rent obligation, concluding that the trial court did not abuse its discretion in declining to offset the prior judgment against the monetary award in this case. Id. at 648. Defendant has now petitioned for reconsideration, arguing, among other things, that there was no monetary award in this case, implying that we misunderstood her offset argument. As explained below, we allow the petition, modify our opinion to address the factual error identified by defendant, and adhere to that opinion as modified.

In her opening (and only) brief on appeal, defendant raised a " Second Assignment of Error" in which she challenged the trial court's failure to offset her prior judgment against plaintiff against defendant's rent obligation:

" Tenant had a money judgment of $3,717.00 against landlord. The judgment was more than the unpaid rent demanded in Landlord's termination notice. The Court erred when it refused to offset the rent and the judgment."

Defendant's entire argument in support of that assignment of error consisted of the following:

" ARGUMENT - SECOND ASSIGNMENT OF ERROR

" Defendant was entitled to subtract her money judgment from plaintiff's rent.

" Landlord introduced a copy of the judgment from the prior FED and the court took judicial notice. Tenant had a money judgment of $3,717.00. The judgment was more than the unpaid rent demanded in landlord's termination notice.

[271 Or.App. 141] " ORS 90.125(2) says:

Page 68

" Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.

" 'Action' is defined at ORS 90.100(2):

" 'Action' includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including ...

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