Beckett v. Olson
| Decision Date | 09 October 1985 |
| Citation | 707 P.2d 635,75 Or.App. 610 |
| Parties | Paul BECKETT, Appellant, v. Derle H. OLSON, K. Lawrence Clark, Vincent N. Stout, Edward Meihoff, Douglas L. Taylor, dba Beaver Properties, and Lonnie Phelps, Respondents. CI 83-194; CA A31782. |
| Court | Oregon Court of Appeals |
William N. Kent, Eugene, filed the brief for appellant.
Douglas L. Taylor, filed a brief pro se in which the other respondents joined pro se. Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Plaintiff appeals the trial court's award of statutory damages for the failure of defendants, his former landlords and their agent, to return his security deposit within the statutorily required time. He asserts that the damages awarded are too low and that the court erred in failing to award attorney fees. We agree with the first assertion and therefore reverse and remand.
Plaintiff paid a $150 security deposit when he rented an apartment from defendants. On June 1, 1983, he gave 30 days notice that he was moving; he moved out on July 1, 1983. He asked for the return of his security deposit and sent defendant Phelps a change of address form; he also retained his former telephone number after moving and notified the post office of his change of address. Plaintiff did not receive a check for his security deposit until August 21, 1983. He refused to negotiate the check and, instead, filed this action, seeking $300, double the amount of the deposit, and attorney fees. ORS 91.760(8). 1 The court granted plaintiff's motion for summary judgment but awarded him only $50. It apparently assumed that plaintiff would receive the amount of the deposit itself by negotiating the check. The judgment is silent as to attorney fees, and plaintiff did not claim any in his cost bill.
Before filing their brief, defendants moved to dismiss this appeal on the ground that the amount in controversy is less than that required to give this court jurisdiction. We denied the motion with leave to renew it in their brief. Defendants again raise the issue, and we again deny the motion. 2 ORS 19.010(3) provides:
"No appeal to the Court of Appeals shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings that the amount in controversy exceeds $250."
Defendants argue that, because plaintiff has received his $150 deposit and a $50 penalty, there is only $100 in controversy on appeal. However, plaintiff's amended complaint sought $300. Defendants in their answer alleged that plaintiff had received $150, but plaintiff is deemed to have denied that allegation. ORCP 19 C. 3 It appears from the pleadings that the amount in controversy exceeds $250. Facts which are not admitted in the pleadings but which may provide defendants with a defense to part of the amount claimed do not affect our jurisdiction.
Turning to the merits, ORS 91.760(8) provides that a tenant may recover twice the security deposit if the landlord does not return it within 30 days from the termination of the tenancy and the redelivery of possession, unless the landlord claims part or all of the deposit within that period. The statute is unambiguous and absolute. The use of "the tenant may recover" rather than "the tenant shall recover" does not give the court any discretion. Rather, it is a statement of the steps the tenant, as a matter of right, may take if the landlord does not comply with the statute. If the tenant decides to sue and is successful, the recovery will be the full penalty; that is, if the facts are shown, the tenant is entitled to judgment. The amount due does not depend on the landlord's good faith or bad faith or on the tenant's damages or lack of damages. The obvious purpose of the statute is to encourage landlords to fulfill their statutory duties by establishing an automatic penalty for their failure to do so. Discretion to reduce the award would subvert the statutory purpose. The court erred in failing to grant plaintiff judgment for $300. 4
We do not decide plaintiff's entitlement to attorney fees under either ORS 91.755 or the tenancy agreement, because plaintiff did not properly raise the issue below. Under ORCP 68 C, attorney fees must be claimed as part of the prevailing party's cost bill. Plaintiff's cost bill did not include an amount for attorney fees. The court never had occasion to rule on an attorney fees claim, so it cannot have erred by failing to allow one. 5
Reversed and remanded with instructions to enter judgment for plaintiff for $300, together...
To continue reading
Request your trial
-
Black v. Brooks
...(Reissue 2009). 14. See Lomack v. Kohl–Watts, 13 Neb.App. 14, 688 N.W.2d 365 (2004). 15.Id. 16. See id. (citing Beckett v. Olson, 75 Or.App. 610, 707 P.2d 635 (1985)). 17. See, Freeman v. Alamo Management Co., 221 Conn. 674, 607 A.2d 370 (1992); McReady v. Dept. of Consumer & Reg. Aff., 618......
-
Christensen v. Cober, C030889CV.
...amount" of the portion of the deposit wrongfully withheld. We noted that we previously had construed the statute: "In [Beckett v. Olson, 75 Or.App. 610, 707 P.2d 635 (1985)], we addressed the meaning of the statutory provision that `the tenant may recover' twice the security deposit wrongfu......
-
Bisson v. Ward
...Apartments, 13 Kan.App.2d 341, 771 P.2d 79, 82-83 (1989) ("tenant may recover damages" creates right to damages); Beckett v. Olson, 75 Or.App. 610, 707 P.2d 635, 637 (1985) Landlords argue that by using the word "may" the Legislature intended to give the court discretion in awarding attorne......
-
Pepitone v. Winn
...at 347, 628 A.2d at 1259, quoting Prevatte v. Asbury Arms, 302 S.C. 413, 396 S.E.2d 642 (S.C.App.1990). See, also, Beckett v. Olson, 75 Or.App. 610, 707 P.2d 635 (1985). The court in Bisson thus found no merit to the landlords' argument that the legislature would have stated "shall" had it ......
-
Chapter § 31.10 ADDITIONAL POST-TENANCY NOTICES AND ISSUES
...come by and pick up an accounting does not comply with landlord's duty to provide the accounting); Beckett v. Olson, 75 Or App 610, 614, 707 P2d 635 (1985) (purpose of the statute is to establish an "automatic penalty" against landlords who fail to comply, and trial court does not have the ......