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Emon Enterprises, LLC v. Kilcup

Court of Appeals of Oregon

May 17, 2017

EMON ENTERPRISES, LLC; and Smiths Mobile Estates, Plaintiffs-Respondents,
v.
Rick KILCUP, AND ALL OTHER OCCUPANTS, Defendant-Appellant.

          Argued and submitted February 7, 2017

         Clackamas County Circuit Court FE150196; Kathie F. Steele, Judge.

          Harry D. Ainsworth argued the cause and fled the brief for appellant.

          Frank Wall argued the cause and fled the brief for respondents.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         In this 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).

         Held:

         The 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 the statute.

         Reversed.

          FLYNN, J. pro tempore.

         In this 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.[1]

         The 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.

         The 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 ...


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