Kenyon v. O'neal

938 P.2d 801, 147 Or. App. 642, 1997 Ore. App. LEXIS 571
CourtCourt of Appeals of Oregon
DecidedApril 30, 1997
Docket94-CV0195; CA A89307
StatusPublished

This text of 938 P.2d 801 (Kenyon v. O'neal) 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
Kenyon v. O'neal, 938 P.2d 801, 147 Or. App. 642, 1997 Ore. App. LEXIS 571 (Or. Ct. App. 1997).

Opinion

EDMONDS, J.

Plaintiffs brought an action in district court against Gomez, their landlord, seeking an injunction and damages for habitability violations and retaliation under the Oregon Residential Landlord and Tenant Act (ORLTA), ORS 90.100 et seq. The district court ruled in favor of plaintiffs, awarding them damages for diminution in the fair rental value of the property and for retaliation. Plaintiffs then sought review in the circuit court under ORS 34.010 et seq, asserting that the district court erred when it declined to grant them certain additional damages that they claimed. The circuit court denied their claim for relief. They appeal, ORS 34.100, and we reverse and remand.

Plaintiffs rented Gomez’s house from August 1992 to December 1993.1 Throughout the term of the lease, there were many problems with the house.2 The district court granted judgment in plaintiffs’ favor, finding that

“[t]he rental premises subject of this action substantially lacked safe water, working plumbing and electricity, water- and weatherproofing, heat, working locks and grounds safe for foreseeable use at the inception of the tenancy.”

The district court also found that the landlord “had actual notice of these conditions at or near the inception of the tenancy” and awarded plaintiffs $2,632 in damages for diminution in the fair rental value during the period from January 1993 to the time plaintiffs obtained temporary alternate housing on December 17, 1993, and $1,000 for retaliatory damages.

The district court purportedly declined to award plaintiffs damages for the costs of substitute housing, the repair of appliances, plumbing and electrical systems, of obtaining potable water and for the cleaning of their possessions as a result of a malfunctioning furnace. It found:

[645]*645“5. There is insufficient evidence to support plaintiff tenants’ allegations that they had to pay for appliance, electrical and plumbing repairs in an effort to make the premises habitable, and therefore they are entitled to no special damages on those grounds.
“6. There is insufficient evidence to support plaintiff tenants’ allegations that they needed to purchase potable water for drinking during the time the landlord failed to repair the dangerous water supply, and therefore they are entitled to no special damages for those costs.
“7. There is insufficient evidence to support plaintiff tenants’ allegations that they needed to seek substitute housing in December 1993, and therefore plaintiffs are not entitled to damages for the reasonable value of such housing nor for consequential damages associated therewith.
“8. There is insufficient evidence to support plaintiffs’ allegations that their personal property was damaged by the malfunction of the furnace, and they are therefore not entitled to damages in the amount of $500 to satisfy the deductible portion of their insurance coverage for repairs to their property.”

Plaintiffs sought a writ of review in the circuit court, alleging that the district court had improperly construed the applicable law and had made findings that are not supported by substantial evidence. In response to the petition, the circuit court ruled:

“Turning to the merits of the matters raised in Plaintiffs’ Writ of Review, this court is of the opinion that the matters complained of are findings of fact, and not matters involving ‘construing] the applicable law.’ ORS 34.040(4). In reviewing this matter, it is not a question of whether or not this court agrees with the trial court’s factual findings, or whether this court would have reached the same factual conclusions based on the record below. Rather, the question is whether the trial court’s findings are ‘supported by substantial evidence in the whole record.’ ORS 34.040(3); * * * Although Plaintiffs urge that the evidence on certain of these matters was uncontroverted, it may very well be that the trial judge found the witnesses presenting this evidence to be lacking in credibility or specificity on these particular issues, or that although the evidence was uncontroverted, [646]*646that it was an insufficient basis on which to award additional damages. It may also be possible that several of the matters complained of were the basis for other damages which were awarded by the trial judge.
“In any event, this court cannot find that the findings below were not supported by substantial evidence (or in some instances, the trial court’s denial of damages may have been based on the lack of substantial evidence in the record). Accordingly, Plaintiffs’ requested relief is denied.” (Emphasis in original; citation omitted.)

On appeal, plaintiffs argue, in part, that “[t]he circuit court erred by incorrectly applying the standard of review required by ORS 34.040.”3 We understand plaintiffs’ argument to mean that the district court erred when it failed to award damages for the previously enumerated claims because they were established by uncontroverted evidence. Gomez responds that to award plaintiffs additional damages would result in a double recovery for them. We exercise review in accordance with ORS 34.100.

The damages provisions relevant to this case are as follows: ORS 90.125(1) provides that “[t]he remedies provided by this chapter shall be so administered that an aggrieved party may recover appropriate damages.” ORS 90.360(2) provides that

“[e]xcept as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 90.320.”

ORS 90.365(1) provides that ifa landlord deliberately refuses or is grossly negligent in failing to supply any essential service, then the tenant may:

[647]*647“(a) Procure reasonable amounts of the essential service during the period of the landlord’s noncompliance and deduct their actual and reasonable cost from the rent;
“(b) Recover damages based upon the diminution in the fair rental value of the dwelling unit; or

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Related

L & M Investment Co. v. Morrison
594 P.2d 1238 (Oregon Supreme Court, 1979)
Lane v. Kelley
643 P.2d 1375 (Court of Appeals of Oregon, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
938 P.2d 801, 147 Or. App. 642, 1997 Ore. App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenyon-v-oneal-orctapp-1997.