Emon Enterprises, LLC v. Kilcup

395 P.3d 78, 285 Or. App. 639, 2017 WL 2152914, 2017 Ore. App. LEXIS 604
CourtCourt of Appeals of Oregon
DecidedMay 17, 2017
DocketFE150196; A159316
StatusPublished
Cited by2 cases

This text of 395 P.3d 78 (Emon Enterprises, LLC v. Kilcup) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emon Enterprises, LLC v. Kilcup, 395 P.3d 78, 285 Or. App. 639, 2017 WL 2152914, 2017 Ore. App. LEXIS 604 (Or. Ct. App. 2017).

Opinion

FLYNN, J. pro tempore

In this forcible entry and detainer (FED) action, tenant appeals a judgment of restitution of the premises to landlord. The issue presented in this appeal is whether tenant engaged in conduct that could be considered “outrageous in the extreme” so as to permit landlord to terminate the tenancy on an expedited basis under ORS 90.396(1)(f). For the reasons that follow, we agree with tenant that his conduct did not qualify as “outrageous in the extreme,” within the meaning of ORS 90.396(1)(f). Accordingly, we reverse the restitution judgment.1

The facts pertinent to this appeal are undisputed. Tenant and his wife own a manufactured home for which they rented a space in landlord’s manufactured home park. While living at the park, tenant had experienced psychotic episodes but had not sought professional help. During one such episode, tenant heard voices that told him to prepare and distribute a notice that was the basis for the eviction. The notice, which was drafted to appear that it had been issued by landlord to all of the tenants, announced a new monthly rental rate that was approximately $100 less than the current rate, announced that rent for the preceding two months would be prorated to reflect the new rate, and announced that tenant “will be managing this mobile home park,” with his lot number identified as “the manager’s office.” After distributing the notice to several residents, tenant’s auditory hallucinations abated, and he did not deliver the rest of the notices. However, he did not retrieve or correct the notices that he had already distributed.

The following day, landlord delivered a notice to all of the park’s tenants emphasizing that tenant had no authority to issue the notice that he had distributed, that tenant was not the park manager, and that the monthly rent remained at the rate set by landlord—with the dollar amount specified. Landlord also served tenant with a notice [641]*641that his tenancy was being terminated under a law that allows termination on as little as 24 hours’ notice when the tenant engages in an “act that is outrageous in the extreme.” See ORS 90.396(1)(f). The notice identified tenant’s conduct of creating and distributing the false notice as the “act that is outrageous in the extreme” and gave tenant a week to vacate the premises. Landlord then filed a complaint for eviction, which tenant opposed. The trial court concluded that tenant’s conduct justified termination under the expedited-termination statute because it was “outrageous in the extreme for a landlord,” and the court granted a judgment awarding landlord restitution of the premises.

On appeal, the dispute turns on whether tenant’s conduct falls within the intended scope of ORS 90.396(1)(f). That statute authorizes a landlord to terminate a tenant’s rental agreement and take possession “after at least 24 hours’ written notice” when, among other circumstances, “[t]he tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme on the premises or in the immediate vicinity of the premises.” ORS 90.396(1)(f).2 Termination under ORS 90.396(1) is authorized on an expedited basis compared to other statutory authority to terminate a tenancy, which generally requires “not less than 30 days” advance notice before the termination is effective. See ORS 90.392(3)(b) (general termination of a tenancy “for cause”); ORS 90.630(1) (termination of rental agreement for space for a manufactured dwelling or floating home for specified reasons).

As with all matters of statutory construction, our “paramount goal” is to determine the legislature’s intent, and to accomplish that goal we give “primary weight” to the statute’s text and context. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). Here, the text of ORS 90.396(1)(f) provides significant guidance regarding the meaning of the term “outrageous in the extreme.” At the outset, the statute specifies, in part:

[642]*642“For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others.”

Several aspects of that sentence are significant. First whether the act is “outrageous in the extreme” is judged from the perspective of “a reasonable person,” a phrase that is consistently used to describe an objective test. See, e.g., State v. Shapiro, 270 Or App 701, 706, 349 P3d 608 (2015) (describing standard for determining whether a building meets the definition of “not open to the public” for purposes of crime of burglary); McDowell v. Employment Dept., 348 Or 605, 612, 236 P3d 722 (2010) (describing test under administrative rule defining when an employee has left work for “good cause”); Padrick v. Lyons, 277 Or App 455, 466, 372 P3d 528, rev den, 360 Or 26 (2016) (describing test for discovery of a civil cause of action). Moreover, the text makes clear that the focus of the objective test is on “a reasonable person in that community,” not just what landlords as a subgroup might consider sufficient to warrant termination.

The quoted sentence also reveals that, as the term suggests, the legislature intended to set a high bar for conduct that is “outrageous in the extreme.” It is conduct that “so offensive” that “a reasonable person in that community would consider” that it warrants “termination of the tenancy within 24 hours.”

As guidance for applying that somewhat imprecise standard, the legislature has specified that the act must be “similar in degree” to the acts—listed in paragraphs (a) to (e) of the statute—that also justify termination in as few as 24 hours. Those paragraphs describe conduct in which someone3 “seriously threatens to inflict substantial personal injury” or actually inflicts a “substantial personal injury,” ORS 90.396(l)(a), (c); “recklessly” creates “a seri-ousrisk of substantial personal injury,” ORS 90.396(1)(b); [643]*643“intentionally inflicts any substantial damage to the premises,” ORS 90.396

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Related

Emon Enters., LLC v. Kilcup
437 P.3d 248 (Court of Appeals of Oregon, 2019)
Forward v. Graham
401 P.3d 797 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
395 P.3d 78, 285 Or. App. 639, 2017 WL 2152914, 2017 Ore. App. LEXIS 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emon-enterprises-llc-v-kilcup-orctapp-2017.