EMON ENTERPRISES, LLC; and Smiths Mobile Estates, Plaintiffs-Respondents,
Rick KILCUP, AND ALL OTHER OCCUPANTS, Defendant-Appellant.
and submitted February 7, 2017
County Circuit Court FE150196; Kathie F. Steele, Judge.
D. Ainsworth argued the cause and fled the brief for
Wall argued the cause and fled the brief for respondents.
Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn,
Judge pro tempore.
forcible entry and detainer action, tenant appeals a judgment
of restitution of premises to landlord after tenant was
evicted on an expedited basis from landlord's
manufactured home park for distributing a false notice to
other tenants. The notice falsely announced a new monthly
rental rate and stated that tenant would be managing the
mobile home park. On appeal, tenant argues that his conduct
did not qualify as "outrageous in the extreme" so
as to permit landlord to terminate the tenancy on an
expedited basis under ORS 90.396(1)(f).
trial court erred in entering a judgment of restitution of
the premises to landlord. The text of ORS 90.396(1) supports
tenant's position that his conduct does not fall within
the scope of the statute. The legislature specified that, for
an act to be considered "outrageous in the extreme,
" it must be similar in degree to the other acts listed
in the statute, including putting other persons at risk of
"substantial personal injury, " actually inflicting
"substantial damage" to the landlord's
premises, or making material fraudulent statements related to
a criminal conviction on a rental application. In this case,
tenant's act of distributing false notices does not rise
to the level of outrageousness for which the legislature
intended to permit expedited termination of the tenancy under
J. pro tempore.
forcible entry and detainer (FED) action, tenant appeals a
judgment of restitution of the premises to landlord. The
issue presented in this appeal is whether tenant engaged in
conduct that could be considered "outrageous in the
extreme" so as to permit landlord to terminate the
tenancy on an expedited basis under ORS 9O.396(1)(f). For the
reasons that follow, we agree with tenant that his conduct
did not qualify as "outrageous in the extreme, "
within the meaning of ORS 9O.396(1)(f). Accordingly, we
reverse the restitution judgment.
facts pertinent to this appeal are undisputed. Tenant and his
wife own a manufactured home for which they rented a space in
landlord's manufactured home park. While living at the
park, tenant had experienced psychotic episodes but had not
sought professional help. During one such episode, tenant
heard voices that told him to prepare and distribute a notice
that was the basis for the eviction. The notice, which was
drafted to appear that it had been issued by landlord to all
of the tenants, announced a new monthly rental rate that was
approximately $100 less than the current rate, announced that
rent for the preceding two months would be prorated to
reflect the new rate, and announced that tenant "will be
managing this mobile home park, " with his lot number
identified as "the manager's office." After
distributing the notice to several residents, tenant's
auditory hallucinations abated, and he did not deliver the
rest of the notices. However, he did not retrieve or correct
the notices that he had already distributed.
following day, landlord delivered a notice to all of the
park's tenants emphasizing that tenant had no authority
to issue the notice that he had distributed, that tenant was
not the park manager, and that the monthly rent remained at
the rate set by landlord-with the dollar amount specified.
Landlord also served tenant with a notice that his tenancy
was being terminated under a law that allows termination on
as little as 24 hours' notice when the tenant engages in
an "act that is outrageous in the extreme."
See ORS 9O.396(1)(f). The notice identified
tenant's conduct of creating and distributing the false
notice as the "act that is outrageous in the
extreme" and gave tenant a week to vacate the premises.
Landlord then filed a complaint for eviction, which tenant
opposed. The trial court concluded that tenant's conduct