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Forward v. Graham

Court of Appeals of Oregon

August 2, 2017

HOME FORWARD, Plaintiff-Appellant,
v.
Tenna GRAHAM, Tanna Graham, and all others, Defendants-Respondents.

          Argued and submitted February 6, 2017

         Multnomah County Circuit Court 15LT09162 Stephen K. Bushong, Judge.

          Eric S. Postma argued the cause for appellant. With him on the briefs was Bittner & Hahs, P.C.

          Ann Berryhill Witte argued the cause and fled the brief for respondents. Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore.

         Case Summary:

         Plaintiff landlord appeals a judgment in favor of defendants, who are tenants in plaintiff's apartment building. After one of defendants physically attacked another resident, plaintiff served defendants with a notice of termination on an expedited basis under ORS 90.396 (also known as a 24-hour eviction) and commenced a forcible entry and detainer (FED) proceeding. The trial court concluded that plaintiff could not avail itself of an expedited eviction under that statute based, in part, on its determination that the assault constituted a material violation of defendants' rental agreement and, thus, could only justify a 30-day termination under ORS 90.392, as well as its consideration of "mitigating factors" in analyzing whether the assault was an act that is "outrageous in the extreme" under ORS 90.396(1)(f). Plaintiff appeals, arguing that the trial court misinterpreted ORS 90.396. Held: The trial court erred insofar as it relied upon mitigating factors-including the duration of defendants' tenancy and their past behavior-to conclude that the assault was not an act that is "outrageous in the extreme" within the meaning of ORS 90.396(1)(f). Furthermore, the trial court erred to the extent that it concluded that the assault could not qualify as "outrageous in the extreme" because it also constituted a material violation of defendants' rental agreement with plaintiff. When conduct materially violates the rental agreement and provides cause for a 30-day termination, that conduct does not necessarily warrant an [287 Or.App. 192] expedited termination; it does not logically follow, however, that if conduct violates the lease and would justify a 30-day termination, then that conduct cannot justify an expedited termination under ORS 90.396.

         Reversed and remanded.

          GARRETT, J.

         Plaintiff landlord appeals a judgment in favor of defendants, who are tenants in plaintiff's apartment building. After one of defendants physically attacked another resident, plaintiff served defendants with a notice of termination on an expedited basis under ORS 90.396 (also known as a 24-hour eviction) and commenced a forcible entry and detainer (FED) proceeding. The trial court concluded that plaintiff could not avail itself of an expedited eviction under the statute. For the reasons discussed below, we conclude that the trial court's ruling was based on a legal error, and we reverse and remand the judgment.

         In an appeal from a residential FED action tried to the court, we review the trial court's legal conclusions for errors of law, and we are bound by the trial court's findings of fact if there is any evidence to support them. Reach Community Development v. Stanley, 248 Or.App. 495, 497, 274 P.3d 211, rev den, 353 Or. 127 (2012). We presume that the trial court implicitly resolved factual disputes in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

         Defendants Tenna and Tanna Graham, who are twin sisters, are tenants at the Tamarack Apartments.[1] On August 14, 2015, another resident, Tanner, observed Tanna combing through discarded mail in the complex's recycling bin. Tanner verbally confronted Tanna about going through other residents' mail. As Tanner walked away, Tanna came at her from behind, hitting her on the side of her face, on her arms and shoulders, and on the side of the stomach. Tanner was pregnant at the time. The attack was witnessed by another resident and by Tanner's two young daughters.

         Tanna was arrested that day and charged with fourth-degree assault. Six days later, on August 20, plaintiff delivered an expedited-termination notice to defendants, informing them that their tenancy would terminate at midnight on August 25, 2015, because:

[287 Or.App. 193] "The tenant, someone in the tenant's control or the tenant's pet has committed any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. An act that is 'outrageous in the extreme' includes, but is not limited to: prostitution; intimidation; burglary; and manufacture, delivery or possession of a controlled substance, but not including: (i) the lawful medical use of marijuana; (ii) possession of, ...

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