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Morat v. Sunset Village, LLC

Court of Appeals of Oregon

October 17, 2018

Charles MORAT, Plaintiff-Respondent,
v.
SUNSET VILLAGE, LLC, Defendant-Appellant.

          Argued and submitted February 6, 2018

          Marion County Circuit Court 15LT04052 Audrey J. Broyles, Judge pro tempore.

          Charles M. Greeff argued the cause and fled the briefs for appellant. Also on the opening brief was Law Offce of Charles M. Greeff, P.C.

          Richard R. Alway argued the cause and fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         This case involves a conflict between a tenant and landlord about who pays the cost resulting from a fallen tree in a manufactured dwelling park. The trial court concluded that the parties' lease required landlord to pay the cost of tree removal and awarded tenant attorney fees and costs. Landlord argues that ORS 90.727 should apply to make the cost of tree removal tenant's responsibility. Landlord also contends that the trial court lacked authority to award attorney fees and costs incurred in court-annexed arbitration under the circumstances of this case. Held: The trial court did not err. "Unilateral amendment" under ORS 90.510(4) is a permissible means of bringing a rental agreement into compliance with ORS 90.727, the statute on trees in rented spaces, but ORS 90.510(4) is not itself a limitation on that tree statute or a prerequisite to its applicability. Nonetheless, ORS 90.727 does not supersede the terms of the particular lease at issue here, which is more favorable to the tenant. The trial court also properly awarded attorney fees incurred in court-annexed arbitration.

         Affirmed.

         [294 Or.App. 428] DeVORE, J.

         This case involves a conflict between a tenant and landlord about who pays the cost resulting from a fallen tree in a manufactured dwelling park. At issue are a statute on trees in rented spaces (ORS 90.727), a statute on "unilateral amendment" of a rental agreement (ORS 90.510(4)), the terms of the parties' lease, and the trial court's award of attorney fees incurred in court-annexed arbitration. Defendant Sunset Village, LLC (landlord), appeals from general and supplemental judgments that awarded plaintiff Morat (tenant) $1, 180 in damages for the costs of tree removal and $33, 847 for attorney fees and costs in all underlying proceedings.

         We conclude that "unilateral amendment" under ORS 90.510(4) is a permissible means of bringing a rental agreement into compliance with the statute on trees in rented spaces (ORS 90.727) but that ORS 90.510(4) is not itself a limitation on that tree statute. We further conclude that the tree statute does not supersede the terms of the particular lease at issue here. As a result, our construction of the statutes does not disturb the trial court's conclusion about this particular lease. The trial court concluded that the parties' lease required landlord to pay the cost of tree removal. Although we may construe the statutes differently than did the trial court, we agree with the trial court's ultimate conclusion that landlord is responsible for the cost of tree removal. And, we agree that the trial court properly awarded attorney fees incurred in court-annexed arbitration. Therefore, we affirm.

         Landlord asserts three assignments of error. We do not address the first assignment because it is not reviewable.[1] [294 Or.App. 429] In its second assignment, landlord contends that the trial court erred in "reasoning" that ORS 90.727 does not govern the cost of tree removal. Landlord contends that, even if landlord did not amend the lease to reflect the statute, ORS 90.727 should apply to make the cost of tree removal the tenant's responsibility. Finally, landlord contends that the trial court lacked authority to award attorney fees incurred in court-annexed arbitration under the circumstances of this case.

         In recounting matters tried to the court as the factfinder, we view the evidence, including reasonable inferences, in the light most favorable to the prevailing party. See Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or. 304, 313, 39 P.3d 846 (2002) (on contract claim, the appellate court views facts determined by the factfinder in the light most favorable to prevailing party).

         Tenant is a resident in Sunset Village, a manufactured dwelling park for residents 55 or older. In September 1992 he signed a lease that incorporated the rules and regulations of the park. Under a heading titled "Improvements to the leased space," the lease provided that the "leased space shall be landscaped by tenant, and shall be maintained at all times in a neat, clean, and orderly condition." The incorporated rules added a section on "lot maintenance" that provided, "Tenants are responsible for maintaining all lawn areas, flowers, and shrubbery within their space." Tenant testified that those documents comprised the parties' agreement and that they had not been amended at any time since.

         For the next 23 years of his residency, according to tenant, the park management "always took care of the cost and the removal of any tree that blew over."[2] For about [294 Or.App. 430] 25 years, ending in 2014, Gerht-Salem was the onsite manager of the park. She had prompted tenant to sign the lease agreement. During her tenure, she said there had been no amendment of the lease or incorporated rules. The park had then been owned by her father, and he had always said that trees are real property and that it was his property. She understood the policy to be, "If the trees have fallen, then we remove them. We pay for them[.]" Gerht-Salem implemented the policy. She recalled a bad storm in 2008 when 15 or 16 trees fell. The park assumed responsibility and paid about $20, 000 for tree removal. She added that, when a tree was blown down, she did not consider its removal to be in the nature of pruning.

         On the night of February 8, 2015, a storm caused a tall conifer on tenant's space to fall and damage a second tree. The next morning, Evans, the current onsite manager of Sunset Village, told tenant to pay to remove the fallen and damaged trees. Later, Evans sent a letter to tenant with a copy of a recent statute on trees in manufactured dwelling parks, ORS 90.727.[3] The letter advised tenant that, pursuant to ORS 90.727, it was his responsibility to pay for the tree removal. Tenant objected that tree maintenance was landlord's responsibility, arguing that landlord had always taken care of the cost of downed trees. Nonetheless, concerned about his tenancy, tenant solicited several bids, advised landlord, and, under protest, paid $1, 180 for the trees' removal.

         Thereafter, tenant filed a complaint against landlord in which he alleged, in part:

"5. Maintenance Agreement. As part of the tenancy agreement between [tenant] and [landlord], and by established practice, [landlord] was and is responsible for the maintenance and removal of trees within [tenant's] rental space."

         [294 Or.App. 431] Tenant alleged that landlord's refusal to remove the trees at its expense was a breach of the tenancy agreement. Tenant alleged a right to recover attorney fees under the tenancy agreement and ORS 90.255, a statute that provides for recovery of attorney fees in an action on a rental agreement. In its trial memo, landlord acknowledged that the claim was "for damages for breach of the residential rental agreement."

         The case was framed by the trial court's ruling on landlord's motion for summary judgment that preceded trial. In its letter opinion, the trial court described the issues presented:

" [Landlord] framed the issue on summary judgment as whether or not [tenant] complied with the requirements of ORS 90.727. However, the Court finds that there is a dispute as to whether ORS 90.727 applies in this case. [Landlord] argues that ORS 90.727 automatically applied to the rental agreement pursuant to ORS 90.510. [Tenant] argues that ORS 90.510 requires a party to take some action to unilaterally amend the contract. The Court agrees with [tenant]."

         After construing ORS 90.510 on unilateral amendment of a rental agreement, the trial court concluded that

"some affirmative action is required in order to unilaterally amend a rental agreement. In light of this, two issues of material fact remain: (1) whether the letter and its enclosures (a copy of ORS 90.727 and Section 16, Chapter 443, Oregon Laws 2013) provided to [tenant] was sufficient to inform him that landlord was unilaterally amending the rental agreement and, if so, (2) when notice was received by [tenant]."

         The court denied landlord's motion for summary judgment, and the parties proceeded to trial with the issues thus framed.

         The case was tried to the court without a jury. In mid-trial at the conclusion of tenant's evidence, landlord offered a motion "for directed verdict," first arguing that ORS 90.727 made trees that are not "hazard" trees the responsibility of the tenant whether or not the lease was amended, and secondly arguing that, because the lease requires the tenant to keep the space clean, neat, and orderly, the tenant must remove fallen trees. The trial court denied the motion. [294 Or.App. 432] Later, at the conclusion of trial, landlord reiterated the same arguments in closing argument to the court. By that point, landlord's argument had evolved into two related contentions as to why ORS 90.727 was applicable as a matter of law to the parties: Landlord argued that "unilateral amendment" had occurred by operation of law under ORS 90.510(4)(c). Alternatively, landlord argued that the legislature intended ORS 90.727 to apply to all landlord-tenant relationships even in the absence of "unilateral amendment."

         In a letter opinion after trial, the court concluded:

"Landlord, defendant had a duty to remove the tree and incur the cost. Based on the evidence, the court finds that ORS 90.727 does not apply. Amendment to the rental agreement required unilateral action and notice. Neither occurred prior to the removal of the subject trees. The court finds in favor of tenant and awards $1, 180.00 in damages and costs."

         The trial court entered judgement for tenant for $1, 180 in damages. The court also entered a supplemental judgment for $33, 847 for tenant based on the attorney fee provision in the lease and ORS 90.255.

         On appeal, landlord assigns error to the trial court's ruling that ORS 90.727 does not apply so as to make tree removal the tenant's responsibility. The second assignment asserts that

"the trial court incorrectly ruled after trial that ORS 90.727 did not apply to the parties. As ORS 90.727 did apply; and as Plaintiff did not sustain his burden of proof that the trees were hazard trees; the trial court's ruling should be reversed and the case dismissed."

         Specifically, landlord contends that the trial court erroneously interpreted ORS 90.510(4) to require a unilateral amendment to a rental agreement before ORS 90.727 could have any effect whatsoever on a landlord-tenant relationship.[4] Landlord contends that "[b]y operation of [294 Or.App. 433] ORS 90.510(4)(c), those statutory changes [resulting from the enactment of ORS 90.727] modified the parties' rental agreement without the need for 'action' by anyone." In landlord's view, ORS 90.510(4)(c), properly construed, means that the mere enactment of ORS 90.727 resulted in a "unilateral amendment" to the parties' rental agreement, displacing their prior agreement regarding removal of fallen trees. Alternatively, landlord contends that, even if the parties' agreement was not amended by the enactment of ORS 90.727 by operation of ORS 90.510(4)(c), "the agreement is in direct conflict with ORS 90.727 and cannot be enforced." Landlord contends that the trial court's interpretation of ORS 90.510 will lead to an impermissible result: that "the parties can legally 'opt out' of ORS 90.727 by simply taking no action to amend the law into their rental agreement."

         Landlord's contention that ORS 90.727 determines who pays the cost of tree removal in this case implicates two questions: First, before ORS 90.727 may apply to the parties' relationship, must landlord "unilaterally amend" the rental agreement, as ORS 90.510(4) permits? Second, if ORS 90.727 can apply to the parties' relationship regardless whether their rental agreement was amended, does that statute override terms that are more favorable to a tenant?

         Those questions involve the meaning of two statutes, ORS 90.510 and ORS 90.727. We discern their meaning based on the words of the statutes in context and, when helpful, legislative history and other interpretive aids. State v. Gaines,346 Or. 160, 171-72, 206 P.3d 1042 (2009). Context includes prior versions of the statute, Jones v. General Motors Corp.,325 Or. 404, 411, 939 P.2d 608 (1997), along with prior common law and the statutory framework ...


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