Kirresh v. Gill

Citation482 P.3d 76,309 Or.App. 47
Decision Date03 February 2021
Docket NumberA165117
Parties Rana KIRRESH, Plaintiff-Respondent, v. Cecil C. GILL, and all others, Defendant-Appellant.
CourtCourt of Appeals of Oregon

309 Or.App. 47
482 P.3d 76

Rana KIRRESH, Plaintiff-Respondent,
v.
Cecil C. GILL, and all others, Defendant-Appellant.

A165117

Court of Appeals of Oregon.

Argued and submitted November 29, 2018.
February 3, 2021


Timothy R. Volpert argued the cause for appellant. Also on the briefs was Tim Volpert P.C.

William E. Gaar argued the cause for respondent. Also on the brief were Richard A. Uffelman, Jillian Pollock, and Buckley Law, P.C.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*

DeHOOG, P. J.

309 Or.App. 49

Defendant appeals a judgment of restitution entered in plaintiff's favor in a residential forcible entry and detainer (FED) action. The trial court awarded that judgment primarily on the basis of an earlier proceeding, which had resulted in declarations that (1) defendant had entered into the "functional equivalent of a land sale contract" with plaintiff's predecessor-in-interest; (2) plaintiff's interest in the property was superior to defendant's; and (3) plaintiff was "entitled to pursue a forfeiture remedy under ORS 93.905 through ORS 93.940 to recover" the property at issue. Plaintiff then "pursued" forfeiture by issuing a notice of default and opportunity to cure, and, when defendant did not cure the claimed default, plaintiff recorded an affidavit of forfeiture. Finally, plaintiff initiated the present FED action, which resulted in the judgment of restitution now on appeal.

On appeal, defendant argues that the earlier declaratory judgment merely recognized plaintiff's right to seek forfeiture; the judgment did not, defendant argues, entitle plaintiff to that remedy. And, in defendant's view, plaintiff was not entitled to forfeiture, because, even if there was an enforceable land sale contract defining the parties’ respective rights, it did not provide for a forfeiture remedy, as the governing statutes contemplate. Plaintiff responds that defendant's arguments are precluded because he had the opportunity to litigate the availability of a forfeiture remedy in the first proceeding. Plaintiff argues in the alternative that she satisfied the statutory requirements for forfeiture. We conclude that defendant's arguments are not precluded, and that plaintiff has not satisfied the statutory requirements for forfeiture. Accordingly, we reverse and remand.

Because she prevailed at trial, we view the facts in the light most favorable to plaintiff. Harvey v. Davis , 276 Or. App. 680, 681, 371 P.3d 1208, rev den , 360 Or. 604, 385 P.3d 86 (2016) (applying that standard in appeal of judgment of restitution based on a land sale contract's forfeiture provision).

In July 2009, plaintiff's then husband, MacBale, and defendant entered into a "Residential Purchase and Sale Agreement and Receipt for Earnest Money" (sale

309 Or.App. 50

agreement) for defendant's purchase of the property at issue in this case. Defendant also executed a promissory note in MacBale's favor at that time. The sale agreement provided for a total purchase price of $310,000 and required defendant to make monthly payments of no less than $1,292 beginning on July 15, 2009, with the entire amount due on or before June 15, 2019.

In 2013, plaintiff divorced MacBale and became his successor in interest as to both the sale agreement and the promissory note,

482 P.3d 79

which were awarded to her in the dissolution proceedings. Defendant failed to make the required payments between June 15 and September 15, 2015. As a result, plaintiff filed a complaint against defendant alleging breach of contract and seeking declaratory relief. Plaintiff specifically sought declarations that: (1) the agreement and note, together, were "akin to a land sale contract" for the property; (2) defendant had an equitable interest in the property; (3) plaintiff had an equitable lien against the property; and (4) "Plaintiff's equitable lien against the Property may be foreclosed ." (Emphasis added.) Despite being served with a summons and a copy of the complaint, defendant did not appear in response, and plaintiff ultimately obtained a default judgment. Plaintiff's motion for default in that 2015 proceeding purported to request "a judgment allowing the relief sought in the complaint" but did not specifically mention a right to foreclosure as alleged in the complaint. Rather, in relevant part, the motion sought a declaration that "Plaintiff's interest in the Property is superior to any interest, lien, right, title or claim of the Defendant in the Property," and further requested allowance of "the relief sought in the complaint" by "[g]ranting Plaintiff the right to cancel the Note and Sale Agreement, declare Defendant's rights under this Note and Sale Agreement to be forfeited , extinguish the debt, and retain sums previously paid under this Contract by Defendant, in the manner provided in ORS 93.905 to ORS 93.940." (Emphasis added.). Plaintiff's motion for entry of a limited judgment by default certified that she had served it on defendant. In December 2015, the trial court found defendant in default and entered the requested limited judgment (the 2015 judgment). In addition to describing the property subject to its terms, the

309 Or.App. 51

2015 judgment contained the declarations sought in plaintiff's motion, including a specific declaration as follows: "5. Plaintiff is entitled to pursue a forfeiture remedy under ORS 93.905 through ORS 93.940 to recover the Property[.]"

Defendant did not appeal that judgment.1 In January 2017, plaintiff served defendant with notice of his default under the sale agreement and of impending forfeiture. The notice stated that the "default by virtue of which this forfeiture is declared is for failure to make timely payments at such time and in such amounts as required under the Note and Agreement." The notice further explained that a "forfeiture is proper under the Note and Agreement because, by [the 2015] judgment *** the Note and Agreement together have been adjudged to be the functional equivalent of a land sale contract." Lastly, the notice informed defendant that the "contract will be forfeited if the default is not cured by March 21, 2017."

Defendant did not timely cure his default, and plaintiff filed an affidavit of forfeiture on March 22, 2017. See ORS 93.930(1) ("When a contract for conveyance of real property has been forfeited in accordance with its terms after the seller has given notice to the purchaser *** the seller shall record an affidavit *** setting forth that the default of the purchaser under the terms of the contract was not cured *** and that the contract has been forfeited."). Plaintiff's affidavit asserted that, because defendant had not cured his default "within the time period provided by law," the note and agreement were forfeited. Plaintiff subsequently filed this FED action seeking to evict defendant contending that he was a "tenant at sufferance under ORS 91.040."2 In

482 P.3d 80

the

309 Or.App. 52

FED action, plaintiff sought possession of the premises, "as well as her costs, disbursements, and attorney's fees" under the sale agreement. To support that request, plaintiff asked the court to take judicial notice of the 2015 judgment and enforce that ruling, thereby precluding defendant from relitigating those issues.

Defendant opposed plaintiff's action, contending that the property was not subject to any actual land sale contract and that, even if the parties’ agreement was functionally equivalent to a land sale contract, plaintiff had not been entitled to forfeiture, because the contract did not provide for a forfeiture remedy as contemplated by the applicable statutory scheme. When questioned by the trial court as to why the 2015 judgment did not control, defendant answered that the 2015 judgment resolved plaintiff's claims for breach of contract, declaratory relief, and foreclosure, and had nothing to do with forfeiture. After taking judicial notice of a statutory warranty deed transferring MacBale's interest to plaintiff, the sale agreement, the promissory note, plaintiff's affidavit of forfeiture, and the 2015 judgment, the trial court ruled as follows:

"I do find that there was an order of limited judgment by default against the defendant in this case that specifically granted the plaintiff the right to pursue a forfeiture remedy under ORS 93.905 through ORS 93.940. And the opportunity for [defendant] to litigate that has long since passed. And, therefore, the proper steps were taken and I will grant the motion of the plaintiff."

In accordance with that ruling, the trial court entered a judgment of restitution and a money award in plaintiff's favor, which defendant now appeals.

On appeal, defendant raises two assignments of error, which he addresses in a single combined argument. In his first assignment, defendant asserts that "[t]he trial court erred in entering a judgment of restitution of the premises against defendant." Defendant's second assignment of error contends that "[t]he trial court erred in granting plaintiff's

309 Or.App. 53...

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5 cases
  • Dep't of Human Servs. v. J. H. (In re E. H.)
    • United States
    • Oregon Court of Appeals
    • June 8, 2022
    ...that well settled law does not apply here, "because the statutory violation in this case is jurisdictional." See Kirresh v. Gill , 309 Or. App. 47, 54-55, 482 P.3d 76 (2021) (general rule that, when a trial court has both subject matter and personal jurisdiction, its judgment even if errone......
  • Hoff v. Certainteed Corp.
    • United States
    • Oregon Court of Appeals
    • December 8, 2021
    ...a violation of ORCP 67 C and due process where the amount of economic damages exceeded the prayer); see also Kirresh v. Gill , 309 Or. App. 47, 66-67, 482 P.3d 76 (2021) (determining violation of due process warranting relief under ORCP 67 C where forfeiture remedy had not been asserted in ......
  • Dep't of Human Servs. v. J. H. (In re E. H.)
    • United States
    • Oregon Court of Appeals
    • June 8, 2022
    ...that that well settled law does not apply here, "because the statutory violation in this case is jurisdictional." See Kirresh v. Gill, 309 Or.App. 47, 54-55, 482 P.3d 76 (2021) (general rule that, when a trial [320 Or.App. 96] court has both subject matter and personal jurisdiction, its jud......
  • Hoff v. Certainteed Corp., A162891
    • United States
    • Oregon Court of Appeals
    • December 8, 2021
    ...of ORCP 67 C and due process where the amount of economic damages [316 Or.App. 147] 18 exceeded the prayer); see also Kirresh v. Gill, 309 Or.App. 47, 66-67, 482 P.3d 76 (2021) (determining violation of due process warranting relief under ORCP 67 C where forfeiture remedy had not been asser......
  • Request a trial to view additional results

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