Brewer v. Erwin

• Decision Date: 23 October 1979
• Citation: 287 Or. 435,600 P.2d 398
• Parties: , 6 A.L.R.4th 503 Suzan BREWER, Appellant, Cross-Respondent, v. Warde ERWIN, Lavelle Mullennex, Charles Erwin, Colin Lamb and Marquam Investment Corporation, Respondents, Cross-Appellants. Suzan BREWER, Appellant, Cross-Respondent, v. Warde ERWIN, Lavelle Mullennex and Marquam Investment Corporation, Respondents, Cross-Appellants. TC A7604 04893; SC 25626, TC A7709 12910; SC 25626.
• Court: Oregon Supreme Court

Page 398

600 P.2d 398

287 Or. 435, 6 A.L.R.4th 503

Suzan BREWER, Appellant, Cross-Respondent, v. Warde ERWIN, Lavelle Mullennex, Charles Erwin, Colin Lamb and Marquam Investment Corporation, Respondents,

Cross-Appellants.

Suzan BREWER, Appellant, Cross-Respondent, v. Warde ERWIN, Lavelle Mullennex and Marquam Investment

Corporation, Respondents, Cross-Appellants.

TC A7604 04893; SC 25626, TC A7709 12910; SC 25626.

Supreme Court of Oregon.

Argued and Submitted June 5, 1979.

Decided Sept. 25, 1979.

Rehearing Denied Oct. 23, 1979.

Michael H. Marcus, Legal Aid Service, Multnomah Bar Assn., Inc., Portland, argued the cause and filed briefs for appellant, cross-respondent.

Margaret H. Leek Leiberan of Lang, Klein, Wolf, Smith, Griffith & Hallmark; Charles C. Erwin and W. H. Erwin of Erwin, Lamb & Erwin, P. C., Portland, argued the cause and filed briefs for respondents, cross-appellants.

Before DENECKE, C. J., and HOLMAN, ^* TONGUE, HOWELL, LENT and LINDE, JJ.

LINDE, Justice.

The present appeal is one phase of a landlord-tenant dispute to which the parties have devoted an extraordinary amount of their time and efforts and those of several courts. ¹ The major questions on this appeal involve the tenant's claims for damages under the Residential Landlord and Tenant Act, ORS 91.700 to 91.895, and under tort law. Other issues concern certain rulings on evidence and on attorney fees and the denial of a preliminary injunction.

The initial course of events is undisputed. Plaintiff Suzan Brewer rented the upper of two apartments in a building, formerly a home, owned by defendant Marquam Investment Corporation. Defendants Warde Erwin and Lavelle Mullennex are Marquam's owners and officers. Charles Erwin and Colin Lamb, the other individual defendants, are Warde Erwin's law partners. The building was old and had been allowed to deteriorate. The dispute between the parties began when Marquam decided to demolish the building and sent plaintiff an eviction notice. Upon receiving the notice, plaintiff became interested in a group which sought to prevent the demolition of old houses in the neighborhood and attended one or two of the group's meetings. She did not move out of her apartment. This led to a number of confrontations between the defendants on one side and plaintiff and other persons at the apartment on the other. Plaintiff eventually filed suit, originally asking injunctive relief against allegedly wrongful efforts by defendants to evict her by force, and subsequently adding claims for damages.

After a series of pretrial motions and rulings, the case finally was tried on two causes of action stated in the ninth amended complaint. These sought general and punitive damages against all defendants except Charles Erwin, the first for intentional infliction of emotional distress, and the second for a battery by Warde Erwin while acting in the scope of his authority as president of Marquam Investment Corporation. The trial court granted involuntary nonsuits on both counts in favor of defendants Lamb and Mullennex and directed a verdict in favor of Warde Erwin and the corporation on the first count. On the battery count, the jury returned a verdict against Warde Erwin and Marquam in the amount of $650 general damages and no punitive damages.

Damages Under the Residential Landlord and Tenant Act.

The terms of the act. Under three of plaintiff's assignments of error directed at the trial court's rulings on plaintiff's pleadings, the parties argue whether the Residential Landlord and Tenant Act provides for the recovery of damages for emotional distress and punitive damages for violations of the act. ² We begin with an examination of the act.

Enacted in 1973, Oregon's statute is patterned on, though not identical with, the Uniform Residential Landlord and Tenant Act. 7A Uniform Laws Annotated 499 (1978). Beginning with provisions of general applicability (ORS 91.700-91.735), it deals with the terms of rental agreements (ORS 91.740-91.755), imposes obligations on landlords and on tenants (ORS 91.760-91.790), and spells out tenants' and landlords' remedies (ORS 91.800-91.865). Several provisions deal expressly with the remedy of damages. While these provisions do not resolve all arguable issues, it is apparent that the drafters of the Residential Landlord and Tenant Act were as concerned with the remedial aspects of disputes between landlords and tenants as with the parties' substantive obligations during the tenancy. Indeed, prescribing rules for the conduct and consequences of disputes in this often difficult relationship is a central purpose of the act.

Provisions for a tenant's recovery of damages from the landlord are found both in the general and in the more specific sections. The general provision states that the remedies provided by the act "shall be so administered that an aggrieved party may recover appropriate damages." ORS 91.725(1). What damages are "appropriate" is sometimes spelled out and sometimes left obscure.

Among the specific provisions, a tenant may recover "actual damages" plus up to three months' rent if the landlord includes forbidden provisions in the rental agreement, ORS 91.745, and twice the amount of a security deposit or prepaid rent wrongfully withheld, ORS 91.760(8). If the landlord fails to comply with the rental agreement or with his statutory obligations to maintain the premises in a habitable condition, the tenant may "recover damages." ORS 91.800(2). The next section, ORS 91.805, allows the tenant to recover "damages based upon the diminution in the fair rental value of the dwelling unit," unless he or she prefers to procure substitute housing at the landlord's cost, if the landlord, contrary to the rental agreement or the statute, deliberately or with gross negligence fails to supply "any essential service." Next, if the landlord "unlawfully removes or excludes the tenant from the premises or wilfully diminishes services" by interrupting "essential services" such as heat, water, or electricity, the tenant may recover twice the periodic rent or twice the "actual damages" sustained, whichever is greater. ORS 91.815. The same measure of damages applies if the landlord retaliates against a tenant who complains to him or to the government or joins a tenants' organization by raising the tenant's rent, decreasing services, or threatening eviction. ORS 91.865. The landlord is also liable for any "loss" resulting from a "deliberate or negligent act" in storing personal property thought to have been abandoned by the tenant, or twice the "actual damages sustained by the tenant" if the landlord's failure to deal properly with the tenant's goods is "deliberate and malicious." ORS 91.840. Similarly, the damages that a landlord may recover for violations of a tenant's obligations are variously stated as "damages," "actual damages," or "not more than two months' periodic rent or twice the actual damages sustained by him, whichever is greater." ³

As previously mentioned, the specific obligations and remedies of the act are preceded by the general directive of ORS 91.725. It reads, in part:

"(1) The remedies provided by ORS 91.700 to 91.895 shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages."

The text of that section does not offer much affirmative guidance to what measures of damages were prescribed for those breaches of the parties' mutual obligations for which no specific measure is stated, but its history does give an indication of what was not prescribed.

In the Uniform Act, the section corresponding to ORS 91.725(1), section 1.105(a), is accompanied by this comment:

"Subsection (a) is intended to negate unduly narrow or technical interpretation of remedial provisions and to make clear that damages must be minimized. The use of the words 'aggrieved party' is intended to indicate that in appropriate circumstances rights and remedies may extend to third persons under this Act or supplementary principles of law (compare Article IV, Parts I and II (the provisions on remedies))."

The comment indicates that the purpose of the section is as much to extend the range of "aggrieved parties" beyond the parties to the rental agreement as it is to prescribe damages between the landlord and tenant. To this extent, the generality of the term "appropriate damages" simply evinces an unwillingness to pursue the collateral question of damages for injured third parties in this statute. They are whatever may be "appropriate" either under the act or under "supplementary principles of law."

However, one draft of the Uniform Act proposed this text for section 1.105:

"(a) The remedies provided by this Act shall be so administered that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this Act or by other rule of law.

"(b) Any right or obligation declared by this Act is enforceable by action unless the provision declaring it specifies a different and limited effect."

URLTA, § 1.105 (3d Draft, April 1972). One version of the bills that led to the Oregon Residential Landlord and Tenant Act similarly proposed to exclude "consequential, special, or punitive damages" in ORS 91.725. 1973 HB 2424, § 5. These proposals were rejected both by the National Conference of Commissioners on Uniform State Laws and by the Oregon legislature. This does not mean that recovery of "consequential, special, or punitive damages" was affirmatively approved. It does mean that the "appropriateness" of such damages in litigation under the act was left to be otherwise derived from the act and from other legal sources consistent with it.

Punitive damages. With respect to plaintiff's claim for punitive damages, we think that allowing such damages under ORS 91.725 for violation of a statutory provision ...