Gibson v. Walsh , 308 Or. App. 119 ( 2020 )

119
Argued and submitted December 12, 2019, affirmed December 23, 2020
James E. GIBSON,
Plaintiff-Respondent,
v.
Patrick Warren WALSH,
Defendant-Appellant.
Josephine County Circuit Court
18LT11082; A168958
480 P3d 990
In this forcible entry and detainer action, tenant appeals a judgment that
awarded possession of the rented premises to landlord. He contends that (1) the
nonpayment of rent notice did not comply with ORS 90.394(3) because, in tenant’s
view, it did not state the correct amount of monthly rent and (2) the trial court
failed to rule on tenant’s counterclaim that landlord impermissibly interrupted
tenant’s electrical service. Held: Tenant’s assignments of error were unpreserved.
At trial, tenant contended that he was entitled to a deduction in rent for inter-
ruption of electrical service, not that the rent amount on his notice was incorrect.
Tenant’s claim about electrical service was unpreserved because he had never
asserted that contention as a counterclaim; rather, he had raised it as a defense
at trial and did not, on appeal, assign error to the trial court’s ruling that that
was not a valid defense.
Affirmed.
Amanda C. Thorpe, Judge pro tempore.
Harry D. Ainsworth argued the cause and filed the brief
for appellant.
No appearance for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Landau, Senior Judge.
LAGESEN, P. J.
Affirmed.
120 Gibson v. Walsh
LAGESEN, P. J.
In this forcible entry and detainer (FED) action,
tenant appeals a judgment that awarded possession of the
rented premises to landlord. In four assignments of error, he
contends that the trial court erred in awarding the premises
to landlord for two different reasons: (1) the 72-hour non-
payment of rent notice did not comply with ORS 90.394(3)
because, in tenant’s view, it did not state the correct amount
of monthly rent; and (2) landlord impermissibly interrupted
tenant’s electrical service, in violation of ORS 90.375. Tenant
requests reversal of the court’s judgment and remand of
“the case for determination of Tenant’s claim for violation of
ORS 90.375 due to interruption of electric service.” Landlord
has not appeared on appeal. For the reasons that follow, we
affirm.
Generally, we review rulings in residential FED
actions for errors of law. Community Development v. Stanley,
248 Or App 495, 497, 274 P3d 211, rev den, 353 Or 127 (2012).
To the extent that we must review the trial court’s determi-
nation of a factual question, we review for any evidence to
support the court’s findings. Id. As long as “there is evidence
in the record to support the trial court’s findings, we state the
facts as the court found them.” Id. When evaluating whether
there is evidence in the record to support a finding of fact, we
view the evidence in the light most favorable to the prevail-
ing party and give the prevailing party “the benefit of every
reasonable inference which may be drawn from the evidence.”
Hendrix v. McKee, 281 Or 123, 126, 575 P2d 134 (1978). We
state the facts in accordance with this standard.
This case arose out of a dispute between a landlord
and tenant that ended in eviction. In April 2015, tenant
rented a space from landlord and landlord’s father for his
recreational vehicle (RV).1 The parties’ agreement was that
tenant could rent the space “as long as he was not hooked up
to any of the utilities and only stayed no longer than three
months.” Landlord described this arrangement as “dry
camping.” The initial agreement was that tenant would pay
$200 per month in rent.
1
There is no written rental agreement in the trial court record.
Cite as 308 Or App 119 (2020) 121
Although the agreement had been for a maximum
of three months, tenant ended up staying more than three
years; landlord explained that, due to his father’s illness and
then death, he was unable to “deal with the stress of anything
else,” including dealing with his tenants. On January 1,
2018, landlord raised the rent from $200 to $225.
On March 26, 2018, landlord received a power bill
that was significantly higher than usual for that time of year,
and he suspected that tenant was using power. Landlord
decided to end the tenancy and, on July 1, 2018, gave tenant
a 60-day notice to vacate. Landlord and tenant had an argu-
ment when landlord delivered the notice, and landlord put
a padlock on the power box near tenant’s trailer to prevent
him from using it. Tenant told landlord he was not “hooked
to the electric anyway.” Later that day and the next, tenant
created disturbances with another tenant.
Landlord texted tenant on July 5, 2018, indicating
that he might be willing to move tenant to another one of his
properties. Tenant responded on July 6, 2018, expressing
appreciation and indicating that he would be willing to talk
the next day. Tenant next contacted landlord on July 23,
2018, “texting [landlord] threats” and offering to pay land-
lord $20 per month for access to power. At that point, land-
lord felt certain that tenant had already been using power
in contravention of the original agreement and decided not
to place tenant on any of his other properties.
After that confrontation, tenant texted several con-
flicting messages over the course of several days about pay-
ment of his August rent, listing different locations that land-
lord could find his check. Then, on August 6, 2018, landlord
received a letter from tenant with a check in the amount
of $117.76 and another letter indicating that tenant would
pay the remaining balance of the rent “when he was given
access to the power.” Tenant’s letter stated that he was with-
holding the remaining rent, which tenant calculated to be
$107.24 (apparently $225.00 minus $117.76), because it cost
him that amount to rent a hotel room to access electricity.
On August 8, 2018, landlord personally returned
tenant’s check and gave him a 72-hour nonpayment of rent
122 Gibson v. Walsh
notice of eviction. The nonpayment of rent notice stated the
amount of rent owed as $225.
When tenant did not vacate the premises, land-
lord initiated this FED action based on nonpayment of rent.
Landlord attached the 72-hour nonpayment of rent notice to
the complaint. In his answer, tenant asserted two defenses.
First, he alleged that the eviction notice was legally incorrect
because tenant had paid his August rent. Second, tenant
alleged that he was not properly served with the 72-hour
nonpayment of rent notice. Tenant did not allege that the
notice incorrectly stated the amount of rent due or raise
any other defenses. Tenant also did not assert any coun-
terclaims, although ORS 90.370(1), by its terms, authorizes
tenant counterclaims “[i]n an action for possession based
upon nonpayment of the rent.” See generally Timmermann
v. Herman, 291 Or App 547, 422 P3d 347 (2018) (consider-
ing tenant counterclaims under ORS 90.370 in FED action
based on nonpayment of rent).
At trial, both parties represented themselves, and
their questions to each other covered an immense amount
of territory, emotional, factual, and legal. At the close of the
trial, the trial court found in favor of landlord. In so doing,
it rejected tenant’s contention that landlord’s act of placing
a padlock on the power supply box provided a defense within
the context of an FED action. In reaching that conclusion,
the court also reasoned that rental of an “RV space” did not
mean that power was required to be provided. The court
further noted that tenant might have some other claim
against landlord for the conduct of shutting off the power,
something the court expressly did not opine on. Based on
those conclusions, the court declined to offset any amounts
from the $225 in rent it determined was owed.
As noted, on appeal, tenant argues that the trial
court erred in two primary respects. First, tenant contends
that the court erred both in determining that the rent due
was $225 and that the 72-hour notice properly stated that
that was the amount of rent due. Tenant’s theory on appeal
is that he was never given proper notice of the January 1,
2018, rent increase. This means, according to tenant, that
the rent was never properly raised to $225 per month, which
Cite as 308 Or App 119 (2020) 123
means both that the 72-hour notice was invalid for misstat-
ing the amount of rent due, and also that the court erred in
finding that tenant owed that much rent for August.
Having reviewed the record, we conclude that those
contentions are not preserved. “For an issue to be preserved
for purposes of appeal, it must have been raised with suffi-
cient clarity in the trial court to put the trial court on notice
that it needs to rule on the issue and for the opposing party to
have an opportunity to address the issue.” Ploplys v. Bryson,
188 Or App 49, 58, 69 P3d 1257 (2003). Here, although cer-
tain statements made in passing in the trial court may have
touched on the issue, the issue was not pressed with suffi-
cient clarity to allow landlord to respond fully. In particu-
lar, tenant never disputed that his monthly rent was $225;2
his contention was that he was entitled to a deduction from
that amount because of landlord’s act of putting a lock on
the power supply. Thus, tenant’s contentions regarding the
amount of monthly rent do not provide a basis for reversing
the trial court’s judgment.
Next, tenant argues that the trial court erred in
determining that landlord had no obligation to supply elec-
tricity and that we should remand to allow the court to deter-
mine what damages tenant might be entitled under ORS
90.375. Assuming for the sake of argument that tenant is
correct that the trial court erred, that error does not provide
grounds for reversal in the context of this case. Although
tenant contends that we should remand to permit the court
to consider what tenant characterizes as an “unpled” claim
or counterclaim under ORS 90.375 for landlord’s act of cut-
ting off the power, the problem for tenant is that tenant
never filed a counterclaim or asked the court to rule on a
counterclaim. Rather, defendant raised his contentions about
the power as a defense to landlord’s claim of possession for
nonpayment of rent, and the trial court ruled that it was
not a defense, while expressly recognizing that tenant might
have some other claim. As defendant has not assigned error
to the trial court’s ruling that defendant’s contentions about
2
We note that, when tenant withheld amounts from his August rent, the
amount withheld, when added to the amount tendered to landlord, added up to
$225.
124 Gibson v. Walsh
the power supply did not constitute a valid defense in this
FED action where, as here, no counterclaim was filed,3 those
contentions supply no basis for reversing the trial court’s
judgment.4
Affirmed.
3
Tenant cites Timmermann, 291 Or App at 547, for the proposition that
“ORS 90.370 makes a counterclaim for a violation of ORS 90.375 a defense in an
action on a nonpayment of rent notice.” But the problem here is that tenant never
pleaded any counterclaims. This is significant because landlord was not afforded
a fair opportunity to answer and defend against affirmative counterclaims by
tenant.
4
Tenant argues that the trial court agreed to consider his unpleaded coun-
terclaims. The record reflects, however, that the court agreed to consider tenant’s
statutory arguments as defenses and did not understand tenant to be asking it to
consider those arguments as counterclaims.