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Crown Property Management, Inc. v. Cottingham

Court of Appeals of Oregon

October 2, 2019

CROWN PROPERTY MANAGEMENT, INC., Plaintiff-Respondent,
v.
MARY ANN COTTINGHAM, Defendant-Appellant, and ALL OTHERS, Defendants.

          Argued and submitted June 2, 2017

          Polk County Circuit Court 16LT05786 Norman R. Hill, Judge.

          Matthew G. Shepard argued the cause and fled the brief for appellant.

          Michael J. Morris argued the cause and fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment awarding restitution of residential property to plaintiff in an action for forcible entry and detainer, raising two assignments of error. Defendant first contends that the trial court erred in denying her motion for involuntary dismissal under ORCP 54 B(2) because plaintiff's notice of termination of defendant's tenancy for failure to pay rent-which was served on defendant through "nail-and-mail" service-was invalid because plaintiff had failed to prove that the location identified in the nail-and-mail provision i n the pa r ties' written rental agreement at which to post notices was available at all hours, as required by ORS 90.155(1)(c). Second, defendant contends that plaintiff waived its right to terminate the rental agreement under an initial termination notice by serving a second termination notice. Held: The trial court did not err. As to the first assignment of error, plaintiff proved sufficient facts from which it was reasonable to infer that the location identified in the rental agreement to which tenants could affix notices was available at all hours. As to the second assignment of error, any possible error was harmless.

         [299 Or.App. 554] ARMSTRONG, P. J.

         Defendant appeals a judgment awarding restitution of residential property to plaintiff in an action for forcible entry and detainer (FED), raising two assignments of error. Defendant first contends that the trial court erred in denying her motion for involuntary dismissal under ORCP 54 B(2)[1] on the ground that plaintiffs notice of termination of defendant's tenancy for failure to pay rent-which was served on defendant through "nail-and-mail" service[2]-was invalid because plaintiff had failed to prove that the parties' written rental agreement contained a valid nail-and-mail service provision. Second, defendant contends that the court erred in concluding that plaintiff had not waived its right to terminate the rental agreement under an initial termination notice by serving a second termination notice. We conclude that the trial court did not err and affirm.

         The following historical facts are not disputed. Defendant entered into a June 2011 lease of an apartment in an apartment complex that plaintiff managed. The lease contained a provision on written notices that authorized nail-and-mail service. That provision stated:

"27. WRITTEN NOTICES: All notices required under this Rental Agreement or state law to be in writing shall be served personally, by first class mail or by first class mail and attachment. If served by first class mail and attachment, a notice from Owner/Agent to Resident shall be deemed served on the day and at the time it is both mailed by first class mail to Resident at the Premises and attached in a secure manner to the main entrance of that portion of the Premises of which Resident has possession. If served by first class mail and attachment, a notice from Resident to Owner/Agent shall be deemed served on the day it is both mailed by first class mail to Owner/Agent at the address set forth on this Rental Agreement and attached in a secure [299 Or.App. 555] manner to the main entrance of the complex office, if one exists, and if not, to Owner/Agent's location identified on the front of this Rental Agreement. If the main entrance to Owner/Agent's office is located inside a secured building, the notice should be attached to the main entrance of such building. Agent is authorized to accept notices on behalf of Owner."

         The record indicates that the apartment complex had an on-site office. Defendant resided in her apartment in the complex until the events giving rise to this case.

         Defendant did not make the rent payment that was due on April 1, 2016. On April 29, plaintiff sent defendant a "72-Hour Notice of Tenancy Termination for Nonpayment of Rent" by first-class mail, stating that she had to pay the one month's rent that she owed by 11:59 p.m. on May 3 or her tenancy would automatically terminate without further notice. The notice also was posted on the door to defendant's apartment. Following defendant's failure to pay her rent by the deadline, plaintiff filed its FED complaint on May 9.

         Defendant failed to pay the next month's rent that was due on May 1. On May 18, plaintiff mailed a second termination notice to defendant and attached it to defendant's door. That notice stated that defendant owed one month's rent and gave her until 11:59 p.m. on May 22 to pay her rent or the rental agreement would automatically terminate. After defendant failed to pay her May rent by the date given on the second notice, plaintiff amended its FED complaint to include both missed rent payments as grounds for terminating the rental agreement. Throughout the process, defendant made offers to pay either $1 in cash or a $100 money order to satisfy the amount owed. Those payments were rejected by plaintiff.

         After plaintiff presented its case in the FED action, defendant moved for involuntary dismissal under ORCP 54 B(2), [3] arguing that plaintiff had failed to meet its prima facie burden to show that plaintiff could use nail-and-mail service to give defendant notice of its intention to terminate the rental agreement. According to defendant, although the [299 Or.App. 556] rental agreement contained a nail-and-mail provision, plaintiff had failed to prove that the provision was valid because plaintiff had failed to introduce evidence that the designated location ...


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