and submitted May 30, 2017.
Clackamas County Circuit Court FE150393; Kathie F. Steele,
D. Ainsworth argued the cause for appellants. Also on the
brief was Leslie A. Nelson.
Wall argued the cause and fled the brief for respondent.
DeHoog, Presiding Judge, and Hadlock, Judge, and Powers,
Or. 743] Case Summary: In this forcible entry and detainer
(FED) action, tenants appeal a judgment of restitution of
rental premises to landlord. Tenants assert that, having
previously obtained a judgment of restitution under ORS
90.396 (allowing a landlord to terminate a tenancy on an
expedited basis for conduct that is "outrageous in the
extreme"), the landlord was precluded from obtaining a
judgment of restitution under ORS 90.394 (allowing
termination of a rental agreement for nonpayment of rent).
Pointing to principles of claim preclusion and mootness,
tenants assert that, in the earlier FED case, the parties
adjudicated the question of termination of the tenancy.
Held: By the plain unambiguous text of ORS
90.401(1), a landlord may pursue a series of actions to
terminate a tenancy and obtain possession of residential
property one right after another. Furthermore, claim
preclusion did not apply in this case because, among other
things, an action seeking termination of a tenancy based on
nonpayment of rent is not based on the same facts as an
action seeking termination as the result of an act that is
alleged to be outrageous in the extreme. And, as to mootness,
tenants remained in possession of the premises at all times
relevant to this case. To the extent that landlord had new
grounds to terminate the tenancy and obtain restitution of
the premises, a judgment granting relief on that ground would
have a practical effect on the rights of the parties.
Or. 744] HADLOCK, J.
forcible entry and detainer (FED) action, tenants, Rick
Kilcup and Lorie Kilcup, who are husband and wife, appeal a
judgment of restitution of rental premises to landlord. In
their first assignment of error, tenants assert that, having
previously obtained a judgment of restitution under ORS
9O.396(1)(f) (allowing a landlord to terminate a tenancy on
an expedited basis for conduct that is "outrageous in
the extreme"), the landlord was precluded from obtaining
a judgment of restitution under ORS 90.394 (allowing
termination of rental agreement for nonpayment of rent). In a
second assignment of error, tenants also contend that the
trial court erred in determining that landlord adequately
served the notice of termination on Rick Kilcup. As explained
below, we reject both of tenants' assignments of error.
Accordingly, we affirm the judgment of the trial court.
relevant facts are as follows. Tenants own a manufactured
home for which they rented a space in landlord's
manufactured home park. Landlord sent tenant Rick Kilcup a
24-hour notice, dated February 25, 2015, that the tenancy was
being terminated for an act that was outrageous in the
extreme pursuant to ORS 9O.396(1)(f). After a trial, on April
17, 2015, the court granted landlord a judgment of
restitution. However, execution of the judgment was delayed
until an agreed move-out date of May 1, 2015. At the end of
April, tenant filed a notice of appeal of the judgment of
restitution along with a supersedeas undertaking. See
Emon Enterprises, LLC v. Kilcup, 285 Or.App. 639,
640-41, 395 P.3d 78 (2017). The supersedeas undertaking
stayed the execution of the judgment of restitution that the
court had entered after the trial on the 24-hour notice.
See ORS 19.335(2).
Or. 745] Meanwhile, tenants had tendered rent checks for
March and April; landlord deposited the checks after the
conclusion of the trial on the 24-hour termination notice
but, on April 29, 2015, the bank returned the checks because
the account on which they were drawn had insufficient funds.
On May 8, 2015, landlord issued a 72-hour notice of
termination of the tenancy for nonpayment of rent pursuant to
ORS 90.394. Landlord served the notice by mailing it to
"Rick Kilcup, Lorie Kilcup and all other occupants"
at the premises that were the subject of the rental
agreement. Thereafter, landlord filed an FED action against
tenants to terminate their tenancy based on that notice.
trial, tenants asserted that landlord could not obtain a
judgment of restitution of the premises because landlord had
already obtained such a judgment in the first trial. Tenants
also asserted that landlord's service of the 72-hour
notice on Rick Kilcup did not satisfy the "good
faith" requirement contained in ORS
90.130. At the close of evidence and after hearing
argument, the trial court ruled in favor of the landlord and,
as in the first trial, entered a judgment awarding landlord
restitution of the premises.
their first assignment of error on appeal, tenants contend
that the trial court erred in entering the judgment of
restitution because "Landlord already had successfully
adjudicated that a prior 24 hour notice had terminated the *
* * tenancy and had a judgment of restitution for the
premises." Pointing to principles of claim preclusion
and mootness, tenants assert that, in the earlier case on the
24-hour notice, "the parties adjudicated the question of
termination of the tenancy," and landlord cannot file
"serial actions requesting the court to award it the
exact same relief already obtained." In response,
landlord points out that tenants continued to occupy the
premises at all times relevant to this case. [295 Or. 746]
Furthermore, landlord asserts that ORS 90.401 permits it to
pursue multiple remedies and that this FED action was proper
in light of that statute. We agree with landlord.
chapter 90, the Residential Landlord Tenant Act (RLTA)
"governs the obligations, rights, and remedies of
landlords and tenants in residential tenancies."
Eddy v. Anderson, 294 Or.App. 163, 172, 430 P.3d
1100 (2018); see ORS 90.100 - 90.940. As noted, ORS
90.394 provides for the termination of a tenancy for
nonpayment of rent and ORS 90.396 provides for termination of
a tenancy for an act that is "outrageous in the
extreme," ORS 9O.396(1)(f). Pursuant to ORS 90.401(1), a
"landlord may pursue any one or more of the remedies set
forth in ORS 90.392, 90.394, 90.396, 90.398, 90.403 and
90.405, simultaneously or sequentially"
assert that the legislature's intent, as expressed in ORS
90.401(1) is not to allow "a landlord to obtain multiple
judgments for possession against the same tenants."
See State v. Gaines,346 Or. 160, 170-72, 206 P.3d
1042 (2009) (in interpreting a statute to determine the
legislature's intent, the court examines the statutory
text in context and may consider legislative history
proffered by a party to the extent it is useful). Although
tenants acknowledge that the legislature intended to allow
landlords flexibility in terminating tenancies for cause,
they maintain that if a landlord has obtained a judgment
granting it a remedy under one of the statutory provisions
listed in ORS 90.401(1), it ...