Ornduff v. Hobbs
| Decision Date | 19 August 2015 |
| Docket Number | FE121181,A152444. |
| Citation | 273 Or.App. 169,359 P.3d 331 |
| Parties | Joe D. ORNDUFF, Plaintiff–Respondent, v. Russell HOBBS, Defendant, and Jason Schmeer and Angela Schmeer, Defendants–Appellants. |
| Court | Oregon Court of Appeals |
273 Or.App. 169
359 P.3d 331
Joe D. ORNDUFF, Plaintiff–Respondent
v.
Russell HOBBS, Defendant
and
Jason Schmeer and Angela Schmeer, Defendants–Appellants.
FE121181
A152444.
Court of Appeals of Oregon.
Submitted March 7, 2014.
Decided Aug. 19, 2015.
Harry D. Ainsworth filed the brief for appellants.
David L. Carlson filed the brief for respondent.
Before NAKAMOTO, Presiding Judge, and EGAN, Judge, and LAGESEN, Judge.
Opinion
LAGESEN, J.
In this forcible entry and detainer (FED) proceeding, defendants appeal a judgment awarding restitution of the premises to plaintiff and a supplemental judgment awarding attorney fees to plaintiff. Defendants contend that the FED complaint should have been dismissed on the grounds that (1) plaintiffs notices of termination inadequately described the deadline for tendering unpaid rent to plaintiff; and (2) the complaint failed to substantially comply with the requirements of ORS 105.124 (governing the form of FED complaints) and failed to satisfy ORCP 18(B). Defendants also challenge the attorney fee award as unauthorized because plaintiffs attorney fee statement was filed outside of the 14–day time period specified in ORCP 68(C)(4)(a). Although the trial court granted plaintiffs motion under ORCP 15(D) to permit a late filing, defendants argue that an attorney fee statement under ORCP 68 is not a “motion” or a “pleading” that is subject to ORCP 15(D). In the alternative, defendants argue that, if ORCP 15(D) did authorize the trial court to permit a late-filed attorney fee statement, then the trial court abused its discretion by granting plaintiffs motion.
We conclude that the trial court did not err when it denied defendants' motion to dismiss.
1 We conclude further that ORCP 15(D) authorized the trial court to grant plaintiffs motion to submit a late-filed attorney fee statement and that the trial court acted within its discretion in granting the motion. We therefore affirm.
I. FACTS
Plaintiff is the owner of real property located in Clackamas County. In December 2010, defendants rented a dwelling on that property from plaintiff for $1,800 per month. Defendants did not tender any rental payments to plaintiff after August 2011. In July 2012, plaintiff issued
a series of 72–hour notices of termination for nonpayment of rent; the notices demanded that defendants either tender the unpaid rent or vacate the premises, and informed them that plaintiff would file an FED action if defendants did not comply with that directive. Defendants neither tendered the unpaid rent nor vacated the premises, and plaintiff filed this FED action. The case proceeded to trial in September 2012.
Defendants moved to dismiss the complaint on the ground that the notices of termination failed to comply with ORS 90.394, and on the additional ground that plaintiffs complaint did not satisfy the requirements of ORS 105.124 and ORCP 18(B). The trial court denied the motion, and the court awarded a judgment of restitution of the premises to plaintiff.
Plaintiff then sought attorney fees. Plaintiff drafted a document titled “MOTION FOR ENTRY OF SUPPLEMENTAL JUDGMENT RE ATTORNEY FEES,” to which he affixed his ORCP 68 statement for fees. Plaintiff mailed those documents to the trial court for filing; he also mailed a copy to defendants. Defendants received the fee statement within 14 days of entry of judgment, as contemplated by ORCP 68, and filed objections. Later, however, defendants learned that the filing was not docketed by the trial court until sixteen days after entry of judgment—two days after the deadline. At that point, defendants filed supplemental objections to plaintiffs statement for attorney fees, challenging the request as untimely.
Approximately two months later, plaintiff moved, under ORCP 15(D), to permit a late-filed attorney fee statement, explaining that he had timely mailed it to the court but that the court had not docketed it within the 14–day timeline prescribed by ORCP 68. Defendants again objected, contending that ORCP 15(D) does not apply to statements for attorney fees as a matter of law. The trial court granted plaintiffs motion, and entered a supplemental judgment awarding plaintiff $4,490 in attorney fees and $132 in costs.
II. ANALYSIS
As noted, defendants assign error to the trial court's denial of their motion to dismiss, arguing that plaintiffs
notices of termination inadequately described the deadline for tendering unpaid rent, and that the complaint failed to substantially comply with the requirements of ORS 105.124 and failed to satisfy ORCP 18(B). Defendants also assign error to the trial court's grant of plaintiffs motion to permit a late-filed attorney fee statement under ORCP 15(D), arguing that ORCP 15(D) does not apply to attorney fee statements as a matter of law, and, alternatively, even if the rule does apply, the trial court abused its discretion by granting plaintiff's motion on the facts of this case. We address those contentions in sequence.
A. Motion to dismiss
In reviewing the trial court's ruling on defendants' motion to dismiss, we review for legal error the court's determination that the notices of termination complied with ORS 90.394. See Guardian Management LLC v. Zamiello, 194 Or.App. 524, 526, 95 P.3d 1139 (2004) (reviewing for legal error ruling that service of written FED notice complied with
ORS 90.155 ). We also review for legal error the trial court's determinations that plaintiff's complaint substantially complied with ORS 105.124 and that it satisfied ORCP 18(B). See Oregon Account Systems, Inc, v. Greer, 165 Or.App. 738, 740–43, 996 P.2d 1025 (2000) (sufficiency of complaint in light of statutory provision is a question of law); see also ORS 105.124(1) (prescribing that complaint “must be in substantially the following form” (emphasis added)); Tompte v. Stone, 195 Or.App. 599, 603, 98 P.3d 1171 (2004) (legislature provides for “substantial compliance” with a statutory requirement when it employs a variation of those terms in the statutory text).
Regarding the sufficiency of the notices of termination, defendants argue that dismissal was required because the notices failed to specify the date by which defendants were required to cure, as required by ORS 90.394(3). We disagree. The notices directed defendants to tender payment “by August 6, 2012 by 11:59 p.m. ” (Boldface in original; italicized emphasis added.) Although defendants contend that the use of the word “by” made it unclear whether their deadline for tendering rent was August 5 or August 6, we see no ambiguity in the directive to tender payment “by August 6,
2012 by 11:59 p.m.” Moreover, the wording of the notices tracked the wording of ORS 90.394(3), which states that notices of termination must “specify the amount of rent that must be paid and the date and time by which the tenant must pay.” (Emphasis added.) Because plaintiffs notices specified the deadline for tendering unpaid rent by echoing the phrasing of ORS 90.394(3), the notices complied with that statute.
Regarding whether dismissal was required on the ground that the FED complaint failed to substantially comply with ORS 105.124 or on the ground that it failed to comply with ORCP 18(B), defendants' only preserved argument is that the complaint does not contain a prayer for relief.2 Although defendants are correct that the FED complaint does not contain a formal “prayer for relief,” that does not mean that defendants were entitled to dismissal of the complaint under either ORS 105.124 or ORCP 18(B).
First, dismissal was not required under ORS 105.124, because the FED complaint substantially complied with that statute. ORS 105.124(1) provides that the complaint shall inform the defendant that the “[l]andlord requests judgment for possession of the premises, court costs, disbursements and attorney fees.” (Emphasis added.) Plaintiffs complaint effectively made that required request. It alleged, in pertinent part, as follows:
“ 2.
“Plaintiff is the landlord and is entitled to possession of the property because of 72–hour notice for nonpayment of rent for August, 2011. ORS 90.394. A copy of the notice relied upon is attached hereto as Exhibits 1A–C.
“3.
“Landlord is entitled to his attorney's fees, costs and disbursements pursuant to ORS 90.255 and ORS 105.137(3).”
(Emphases added.) Those allegations communicated to the court and to defendants that plaintiff was requesting the
court to grant him possession of the premises, costs, disbursements, and attorney fees. That is “substantially” what ORS 105.124 requires in terms of a request for relief.
Second, our case law establishes that the...
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