Elk Creek Mgmt. Co. v. Gilbert

• Decision Date: 31 May 2013
• Docket Number: CA A143348,SC S060187).,(CC M09072786
• Citation: 303 P.3d 929,353 Or. 565
• Parties: ELK CREEK MANAGEMENT COMPANY, Respondent on Review, v. Harold GILBERT and Melissa Strittmatter, Petitioners on Review.
• Court: Oregon Supreme Court

353 Or. 565

303 P.3d 929

ELK CREEK MANAGEMENT COMPANY, Respondent on Review,

v.Harold GILBERT and Melissa Strittmatter, Petitioners on Review.

(CC M09072786; CA A143348; SC S060187).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 7, 2013.

Decided May 31, 2013.

On review from the Court of Appeals.^*

Edward Johnson, Oregon Law Center, Portland, argued the cause and filed the brief for petitioners on review.

Respondent on review waived briefing and oral argument.

WALTERS, J.

ORS 90.385 prohibits a landlord from “retaliat[ing] by” serving notice to terminate a tenancy after the tenant has made a complaint that is in good faith and related to the tenancy.¹ In this case, we conclude that, to prove retaliation under ORS 90.385, a tenant must establish that the landlord served the notice of termination because of the tenant's complaint. The tenant need not prove, in addition, that the complaint caused the landlord actual or perceived injury or that the landlord intended to cause the tenant equivalent injury in return. We reverse the decision of the Court of Appeals, Elk Creek Management Co. v. Gilbert, 244 Or.App. 382, 260 P.3d 686 (2011), adh'd to as modified on recons.,247 Or.App. 572, 270 P.3d 362 (2012), and the judgment of the circuit court, and we remand the case to the circuit court for further proceedings.

This case concerns a month-to-month tenancy pursuant to a written rental agreement. After the landlord gave the tenants a 30–day no-cause notice of termination of tenancy and the tenants failed to vacate the premises, the landlord filed an action for possession. The tenants filed an answer denying that the landlord was entitled to possession and alleging that the landlord had given notice of termination because of the tenants' legitimate complaints. The trial court rejected the tenants' defense and made written Findings of Fact and Conclusions of Law, which serve as the basis for our recitation of the underlying facts.² We recite those facts as background for the legal issue presented—the meaning of ORS 90.385.

At some time before May 19, 2009, the tenants “made some sort of general complaint(s)to [the owner] about the electrical system on the property.” The manager also had noticed a bent service mast and had become concerned about the property's electrical service. On May 19, the landlord gave the tenants written notice that the owner wanted to do a “walk-through” of the premises. That notice stated that the owner was going to “check out the breaker box and want[ed] to see the floor in the bathroom.” After the initial walk-through, the manager advised the tenants that she wanted to do another walk-through on June 16. A licensed electrician accompanied the owner and the manager on that second walk-through, and, at its conclusion, the electrician recommended that the owner make repairs to the electrical system. It was apparent “to everyone” that those repairs would “involve a cost to the owner.” The manager called the tenants the next afternoon and informed them that the owner had decided to terminate their lease. The following day, the tenants received a 30–day no-cause termination notice and a note from the manager, which stated:

“I am sorry that I have to give you the thirty days notice. [The owner] has several repairs including updating the electrical. If there is anything I can do please let me know.”

At trial, the manager testified that she had issued the notice of eviction based on instructions from the owner. The owner did not testify.

In its Findings of Fact and Conclusions of Law, the trial court recognized that “[i]t is a landlord's duty during a tenancy to ‘maintain the dwelling unit in a habitable condition’ and [to maintain the] ‘electrical lighting with wiring and electrical equipment * * * in good working order.’ ORS 90.320(1)(e).” The court found that the electrical system for the dwelling in question was not in good working order. The court further found that (1) it was “a reasonable inference that [the tenant's] conversations with [the owner] as well as [the manager's] concern with the service mast caused [the owner] to want to do the initial walk-through on May 19th”; ³ and (2) there was no evidence of the owner's reason for termination other than that expressed in the note sent by the manager—that the owner “has several repairs including updating the electrical.” The court concluded, however, that the tenants had not established that the tenancy termination constituted “retaliation” by the owner:

“The concept of retaliation (lex talionis) has ancient foundations and in common language is easily understood in metaphors such as ‘an eye for an eye’ or ‘a tooth for a tooth.’ The essence of the concept is that when one suffers a real or perceived wrong, a like injury will be inflicted upon the one who did the initial real or perceived harm. [The tenants] inflicted no wrong upon [the owner] when they noted some problems involving the electrical system. Nor did [the owner] attempt to respond in a wrongful manner by attempting to harm [the tenants] by terminating their tenancy when such complaint(s) were made. In fact, it appears that during the tenancy [the owner] has spent considerable sums attempting to maintain the premises in a habitable condition during the tenancy, and took no action against [the tenants] when they were previously in default on their rent. In fact, the conduct and circumstances involved in this case on the part of both [the tenants] and [the owner] are rather innocuous in this Court's opinion. The facts of this case do not in this Court's opinion establish that the tenancy termination constituted retaliation by [the owner] against [the tenants] because they expressed at some point prior to the termination that they had some electrical concerns regarding the premises.”

(Emphases in original; footnotes omitted.)

The tenants appealed and the Court of Appeals affirmed. Elk Creek Management Co. v. Gilbert, 244 Or.App. 382, 260 P.3d 686 (2011)( Elk Creek I ). The Court of Appeals held that “[t]he concept of retaliation as the term is used in ORS 90.385 involves an intentionon the part of the landlord to cause some sort of disadvantage to the tenant, motivated by an injury (or perceived injury) that the tenant has caused the landlord[,]” and that the tenants had failed to prove those facts. Id. at 390, 260 P.3d 686. The court also included in its opinion two additional sets of statements. One set of statements concerned a landlord's options if the landlord could not afford to make repairs or decided to take the property off the market:

“We agree that requiring a retaliatory motive might decrease a tenant's confidence that his or her complaint will not lead to eviction. A tenant may realize that an opportunistic landlord could, with no intent to inflict a retributory injury whatsoever, evict the tenant because the landlord could not afford to make the repairs or decided to take the property off the market completely. Such a landlord has not violated ORS 90.385 simply because the eviction follows on the heels of a tenant's complaint, at least as the statute is now written—the product, as the legislative history cited above demonstrates, of political compromise between interests representing landlords and tenants.”

Id. Another set of statements concerned the role of temporal proximity in demonstrating retaliation:

“Legislative history is not always illuminating, but we can say with a high degree of confidence that this legislative history, in the absence of statutory text on the issue, demonstrates that, under the current version of ORS 90.385, a tenant cannot rely on chronology—a complaint soon followed by a notice of eviction—to establish a presumption of retaliation that the landlord must then rebut. Thus, in order to prevail in this case, defendants have to affirmatively establish retaliation, and the outcome here depends on what that term means.”

Id. at 389, 260 P.3d 686 (emphasis in original).

The tenants sought reconsideration. They contested the court's interpretation of ORS 90.385 and also asked the court to reconsider the two sets of statements, which the tenants characterized as “ dicta that will have sweeping, dangerous, and presumably unintended consequences for tenants.” Elk Creek Management Co. v. Gilbert, 247 Or.App. 572, 574, 270 P.3d 362 (2012)( Elk Creek II ). The court granted the tenants' motion in part. It declined to revisit the issue of statutory construction but addressed the tenants' arguments about the two sets of statements. First, the court considered the tenants' argument that, by permitting landlords to evict tenants if landlords could not afford repairs or decided to take the leased property off the market, the court had created two new statutory exceptions to a tenant's retaliation defense. The court agreed with the tenants that it did not have authority to insert statutory exceptions and retracted the offending paragraph. Id. at 579, 270 P.3d 362.

Second, the court considered the tenants' argument that temporal proximity could, under some circumstances, constitute evidence of retaliation. Id. at 580, 270 P.3d 362. The court explained that the legislative history that it had reviewed demonstrated that the legislature had “discarded temporal proximity as sufficient for a tenant to establish a prima facie rebuttable presumption of retaliation that would shift the burden to the landlord to demonstrate the eviction was nonretaliatory.” Id. However, the court clarified, the tenants' suggestion that a reasonable trier of fact could draw from such evidence “a permissible inference that the landlord's act was motivated by the tenant's complaint” was consistent with its opinion. Id.

We allowed the tenants' petition for review to consider the tenants' argument that the Court of Appeals incorrectly interpreted ORS 90.385 when it declared that “[t]he concept of retaliation as the term is used in ORS 90.385 involves an intention on...