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Emon Enterprises, LLC v. Kilcup

Court of Appeals of Oregon

January 24, 2019

EMON ENTERPRISES, LLC, Plaintiff-Respondent,
v.
Rick KILCUP, Lorie Kilcup, et al., Defendants-Appellants.

          Argued and submitted May 30, 2017.

          Clackamas County Circuit Court FE150393; Kathie F. Steele, Judge.

          Harry D. Ainsworth argued the cause for appellants. Also on the brief was Leslie A. Nelson.

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

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge. [*]

         [295 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.

         [295 Or. 744] HADLOCK, J.

         In this 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.

         The 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).[1] 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).[2]

         [295 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.

         At 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.[3] 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.

         In 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.

         ORS 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"[4]

         Tenants 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 ...


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