United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
diversity action, plaintiff Meritage Homeowners'
Association ("Meritage") alleges that defendant
Bank of New York Mellon ("BNYM") owes Meritage over
a million dollars in Homeowner's Association-related fees
associated with a property located in the Meritage at Little
Creek community. BNYM's purported liability stems from
the fact that BNYM had a security interest in the property,
and eventually purchased the property in a bankruptcy
proceeding. In response to Meritage's complaint, BNYM
filed a series of claims against the developer, third-party
defendant Kurt Freitag ("Freitag"), who was in
administrative control of Meritage when this action was
April 13, 2018, the Court issued an Opinion and Order that,
among other things, granted BNYM's motion for partial
summary judgment (doc. 84). Meritage Homeowners'
Assn. v. Bank of New York Mellon, 6;16-cv-00300-AA, 2018
WL 1787183 (D. Or. Apr. 13, 2018). In granting the motion,
the Court ruled that Freitag lacked legal authority to carry
out the actions that gave rise to Meritage's claims
against BNYM, because the period of Freitag's
administrative control over Meritage had ended in June 2004.
Id. at *21. That conclusion was based on provisions
of the Declaration of Covenants, Conditions, and Restrictions
("the Declaration") for Meritage at Little Creek
and on Oregon's Planned Community Act, ORS §§
94.550 to 94.7873.
Freitag moves to certify the underlying question of law to
the Oregon Supreme Court, pursuant to ORS § 28.200,
which allows certification of dispositive questions of law.
(doc. 164). The Court finds this motion appropriate for
disposition without oral argument, pursuant to Local Rule of
Civil Procedure 7-1(d)(1). For the reasons set forth below,
Freitag's motion is DENIED.
the Oregon Supreme Court will consider whether to exercise
its discretion to hear certified questions, five statutory
criteria must be met: (1) the certification must come from a
statutorily authorized court, (2) the question must be a
question of law, (3) the law at issue must be Oregon law, (4)
the question must be determinative of at least one claim in
the case, and (5) it must appear to the certifying court that
there is no controlling precedent in the decisions of the
Oregon Supreme Court or Oregon Court of Appeals. ORS §
28.220; W. Helicopter Serv., Inc. v. Rogerson Aircraft
Corp., 811 P.2d 627, 629-34 (Or. 1991). Of these
criteria, the certifying court objectively determines the
first four issues, and the fifth issue is a subjective
judgment. W. Helicopter. Serv. at 366. Ultimately,
"[u]se of the certification procedure in any given case
rests in the sound discretion of the federal court."
Micomonaco v. Washington, 45 F.3d 316, 322 (9th Cir.
1995) (quoting Lehman Bros. v. Schein, 416 U.S. 386,
requests that this Court certify the following question to
the Oregon Supreme Court:
Under ORS 94.600, in an Oregon planned community approved by
the local government to be developed in multiple phases, may
completion of less than all phases be considered
"expiration of any period of declarant control reserved
under ORS 94.600" for the purposes of triggering
mandatory turnover of declarant administrative control where
further approved phases of the planned community have not
been annexed and sold?
for Certification at 1.
question is not appropriate for certification because it is a
question of contract interpretation. Freitag has framed the
question as an issue of statutory interpretation-
specifically, the meaning of the phrase "the expiration
of any period of declarant control reserved in the
declaration under subsection (1) of this section" in ORS
§ 94.600(3). But Oregon's Planned Community Act does
not define or determine when a period of declarant control
expires. Instead, the Act leaves that question, and even the
question of whether declarant control will be reserved in the
first place, to the terms of a particular declaration. ORS
§ 94.600(1) provides that "a declaration may
reserve special declarant rights including, without
limitation, the light to a period of declarant control that
may be of limited or unlimited duration." Thus, to
determine "the expiration of any period of declarant
control reserved in the declaration," a court
must look to and interpret the declaration itself, not the
Planned Community Act.
Order granting summary judgment, the Court interpreted the
text of the Declaration using Oregon's multi-step process
for contract interpretation, as outlined in Yogman v.
Parrott, 937 P.2d 1019, 1021 (Or. 1997). Heritage
Homeowners' Ass % 2018 WL 1787183, at * 18-20. And
the Court determined that "under the terms of the
Declaration, mandatory turnover was triggered on June 4,
2005, the first date on which seventy-five percent of the
Lots then subject to the Declaration were sold to people
other than Freitag." Id. at *20. The issue was
decided according to existing Oregon precedent and no further
clarification is necessary. See, e.g., Garrison v. Bally
Total Fitness Holding Corp., Civ. 04 1331 PK, 2006 WL
3354475, at *7 (D. Or. Nov. 15, 2006) (declining to recommend
certification of questions of law that arise out terms of a
contract when the Court previously had applied Oregon's
rules of contract interpretation to analyze the questions).
Therefore, the fifth criterion, the lack of controlling
Oregon precedent, is not met and certification is not
reasons stated above, Freitag's motion to certify a
question of law to the Oregon ...