Ornduff v. Hobbs

359 P.3d 331, 273 Or. App. 169, 2015 Ore. App. LEXIS 990
CourtCourt of Appeals of Oregon
DecidedAugust 19, 2015
DocketFE121181; A152444
StatusPublished
Cited by3 cases

This text of 359 P.3d 331 (Ornduff v. Hobbs) 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
Ornduff v. Hobbs, 359 P.3d 331, 273 Or. App. 169, 2015 Ore. App. LEXIS 990 (Or. Ct. App. 2015).

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 [171]*171a 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 16 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 [172]*172notices 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 plaintiffs 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 P3d 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 plaintiffs 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 P2d 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 P3d 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, [173]*1732012 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

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson Mobile Park, Inc. v. Schoffstall
341 Or. App. 264 (Court of Appeals of Oregon, 2025)
McCorquodale v. Oxford House, Inc.
514 P.3d 1189 (Court of Appeals of Oregon, 2022)

Cite This Page — Counsel Stack

Bluebook (online)
359 P.3d 331, 273 Or. App. 169, 2015 Ore. App. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ornduff-v-hobbs-orctapp-2015.