Erickson v. R&R Ranches, LLC ( 2021 )

287
Argued and submitted May 7, affirmed December 15, 2021
Randy ERICKSON
and Keri Erickson,
Plaintiffs-Respondents,
v.
R&R RANCHES, LLC,
Defendant-Appellant.
Crook County Circuit Court
16CV21611; A171744 (Control)
Randy ERICKSON
and Keri Erickson,
Plaintiffs-Appellants,
v.
R&R RANCHES, LLC,
Defendant-Respondent.
Crook County Circuit Court
16CV21611; A167399
503 P3d 1261
Plaintiffs, former residential tenants of defendant R&R Ranches, LLC,
appeal a limited judgment dismissing their declaratory judgment claim and
their claim under ORS 90.300 for return of a security deposit on the residential
property. Plaintiffs also appeal a second limited judgment awarding R&R attor-
ney fees under ORS 90.255 for prevailing on plaintiffs’ statutory claim. R&R
brought a counterclaim for breach of a stipulated judgment entered in a forcible
entry and detainer (FED) proceeding, which the trial court rejected. R&R appeals
the general judgment dismissing its counterclaim, challenging only the award
of attorney fees to plaintiffs. Held: On plaintiffs’ appeal, the Court of Appeals
affirmed both limited judgments without discussion. The court wrote to explain
its rejection of R&R’s appeal from the general judgment. ORS 90.255 authorizes
an award of attorney fees to the prevailing party in any action “arising under”
ORS chapter 90. The court concluded that R&R’s counterclaim for breach of a
stipulated judgment entered in an FED proceeding arose under ORS chapter 90,
because the stipulated judgment came into existence as a result of R&R’s FED
proceeding, which originated from a residential lease subject to ORS chapter 90.
The trial court therefore did not err in awarding attorney fees to plaintiffs under
ORS 90.255 for prevailing on R&R’s counterclaim.
Affirmed.
Daina A. Vitolins, Judge. (General Judgment)
Daniel Joseph Ahern, Judge. (Limited Judgment)
288 Erickson v. R&R Ranches, LLC
Jenny Rae Foreman argued the cause and filed the briefs
for appellants and respondents Randy Erickson and Keri
Erickson.
Michael W. Peterkin argued the cause for appellant and
respondent R&R Ranches, LLC. Also on the briefs was
Peterkin Burgess.
Before Armstrong, Presiding Judge, and Aoyagi, Judge,
and Sercombe, Senior Judge.
ARMSTRONG, P. J.
Affirmed.
Cite as 316 Or App 287 (2021) 289
ARMSTRONG, P. J.
Plaintiffs, who are former residential tenants of
defendant R&R Ranches, LLC, appeal a limited judgment
dismissing their declaratory judgment claim and their claim
under ORS 90.300 for return of a security deposit on the
residential property. Plaintiffs also appeal a second limited
judgment awarding R&R attorney fees under ORS 90.255
for prevailing on plaintiffs’ statutory claim. We affirm both
limited judgments without further discussion.
R&R brought a counterclaim against plaintiffs that
the trial court rejected. R&R appeals the general judgment
dismissing its counterclaim, challenging only the award of
attorney fees to plaintiffs. We write to address R&R’s chal-
lenge to the award of attorney fees, conclude that the trial
court did not err, and affirm the award.
In April 2014, R&R rented residential property to
plaintiffs under a lease agreement. An issue arose concern-
ing a security deposit required by the lease. R&R asserted
that plaintiffs never paid the deposit. Plaintiffs asserted
that they gave cash for the deposit to R&R’s agent, Brown,
but that Brown had failed to deliver the money to R&R.
R&R sought to evict plaintiffs through an FED
proceeding filed pro se in October 2015. Through court-
sponsored mediation in November 2015, the parties entered
into a stipulated judgment, purportedly under ORS 105.145,1
1
ORS 105.145 provides, in part:
“(2) If, as a result of a court-sponsored or other mediation or otherwise,
the plaintiff and defendant agree, in the manner provided by ORCP 67 F
for judgment by stipulation, that the defendant shall perform in a certain
manner or that the plaintiff shall be paid moneys agreed to be owing by the
defendant and that as a result of that performance or payment the defendant
shall retain possession of the premises, including retention of possession con-
tingent upon that performance or payment of moneys by the defendant by
a certain date, the court shall enter an order or judgment to that effect. In
addition, if the plaintiff and defendant agree that the plaintiff shall perform
in a certain manner or pay moneys to the defendant by a certain date, the
court shall enter an order or judgment to that effect.
“(3) If, as provided by subsection (2) of this section, the parties enter an
order or judgment by stipulation that requires the defendant to perform in
a certain manner or make a payment by a certain date and the defendant
later demonstrates compliance with the stipulation, the court shall enter a
judgment of dismissal in favor of the defendant.”
290 Erickson v. R&R Ranches, LLC
on a form entitled “stipulated agreement” and approved
by the court. The stipulated judgment required plaintiffs
to vacate the property, to pay a specific amount for court
costs and back rent, and to “participate vigorously on an
as-needed basis” in collection efforts to recover the security
deposit from Brown through civil or criminal proceedings.
The court did not check a box on the form reserving the par-
ties’ possible claims under the rental agreement. The form
provided, however, that,
“if [plaintiffs do] not comply with the terms of this
STIPULATED AGREEMENT, [R&R] may file an affida-
vit of noncompliance under ORS 105.146(4). The court may
then issue a judgment for immediate restitution of prem-
ises, costs, disbursements, and prevailing party or attorney
fees and any amounts agreed upon in this agreement.”
The paragraph purports to refer to the procedure described
in ORS 105.146(4). The stipulated judgment thus did not
dismiss the FED action but stayed it, for up to 12 months,
see ORS 105.146(3) (providing that 12 months following the
entry of the order, the court shall “automatically dismiss” the
FED action without further notice to either party),2 pending
2
ORS 105.146 provides, in part:
“(2) A plaintiff may obtain and enforce a judgment of restitution based
upon an order entered as provided under ORS 105.145(2), provided the order
includes only:
“(a) Future performance or conduct as described in the order for a period
of not more than six months following entry of the order;
“(b) Payment of past due rent and other past due amounts pursuant to
a schedule provided in the order for a period of not more than six months
following entry of the order;
“(c) Payment of rent due for future rental periods that follow entry of the
order pursuant to a schedule provided in the order for not more than the first
three monthly rental periods following entry of the order; and
“(d) Payment of any costs, disbursements or attorney fees pursuant to a
schedule provided in the order.
“(3) The order shall contain a statement providing that 12 months fol-
lowing the entry of the order, the court shall automatically dismiss the order
without further notice to either the plaintiff or the defendant.
“(4) If the defendant fails to comply with the order, the plaintiff may
file with the clerk of the court an affidavit or declaration of noncompliance
describing how the defendant has failed to comply. The plaintiff shall attach
a copy of the order to the affidavit or declaration. The affidavit or declaration,
or the order, must include the terms of the underlying settlement agreement
or stipulation or have a copy of the agreement attached.
Cite as 316 Or App 287 (2021) 291
plaintiffs’ compliance with the agreement. The stipulated
judgment was, essentially, a component of the FED proceed-
ing. Plaintiffs vacated the premises and made the required
payment.
Subsequently, in April 2016, without serving plain-
tiffs, R&R filed an “affidavit of noncompliance,” asserting
that plaintiffs were not in compliance with the stipulated
judgment’s requirement that they pursue recovery of the
security deposit from Brown. R&R also filed a motion for
judgment of default in the FED proceeding, seeking judg-
ment and a monetary award. The court entered the judg-
ment, including the monetary award.
On November 14, 2016, R&R filed a motion to vacate
the FED judgment, which the court granted. The court then
entered a new judgment dismissing the FED action, deter-
mining that “the case is now settled.”
Plaintiffs brought this action in July 2017, seeking
a declaration that the default general judgment in the FED
proceeding was void ab initio and a return of the disputed
security deposit under ORS 90.300. R&R filed an answer,
asserting that plaintiffs’ declaratory judgment claim was
moot in light of the trial court’s previous vacation of the gen-
eral judgment in the FED proceeding, and that plaintiffs’
statutory claim for return of the deposit was barred by the
“(5) Upon receipt of a plaintiff’s affidavit or declaration:
“(a) The court shall enter a judgment of restitution; and
“(b) The clerk shall issue a notice of restitution as provided by ORS
105.151 and attach to the notice a copy of the plaintiff’s affidavit or declara-
tion of noncompliance and any attachments for service.
“(6) The court shall establish a procedure that allows the defendant to
request a hearing on the plaintiff’s affidavit or declaration of noncompliance
and delay expiration of the notice of restitution period or execution upon a
judgment of restitution pending the hearing.
“(7) The court shall enter a judgment dismissing the plaintiff’s action in
favor of the defendant without assessment of costs, disbursements, prevail-
ing party fee or attorney fees against either party except as provided in the
order and without further notice to either party:
“(a) Upon receipt of a writing signed by the plaintiff showing compliance
with or satisfaction of the order; or
“(b) Twelve months following entry of the order, unless the plaintiff has
filed an affidavit or declaration of noncompliance and the court has found in
favor of the plaintiff on the affidavit or declaration.”
292 Erickson v. R&R Ranches, LLC
parties’ stipulated judgment in the FED proceeding. In a
counterclaim, R&R asserted that plaintiffs had breached
their obligation under the stipulated judgment to pursue
recovery of funds from Brown.
The trial court rejected plaintiffs’ claims and also
rejected R&R’s counterclaim. The court awarded attorney
fees to R&R on plaintiffs’ claims and to plaintiffs on R&R’s
counterclaim.
On appeal, R&R contends that there was no author-
ity for the award of attorney fees to plaintiffs on its counter-
claim. A party is not entitled to an award of attorney fees
unless a statutory or contractual provision specifically
authorizes the award. Mattiza v. Foster, 311 Or 1, 4, 803 P2d
723 (1990). The trial court believed that fees were autho-
rized under ORS 90.255, which provides:
“In any action on a rental agreement or arising under
this chapter, reasonable attorney fees at trial and on appeal
may be awarded to the prevailing party together with costs
and necessary disbursements, notwithstanding any agree-
ment to the contrary. As used in this section, ‘prevailing
party’ means the party in whose favor final judgment is
rendered.”
(Emphasis added.) The trial court reasoned that, although
R&R’s breach-of-contract counterclaim was not on the lease
agreement, it did “arise under” ORS chapter 90, because the
stipulated judgment arose out of R&R’s FED action. Thus,
the trial court awarded fees to plaintiffs under ORS 90.255
for prevailing on R&R’s counterclaim.
The trial court was correct. ORS 90.255 includes
the broad statement that attorney fees are authorized in
any action “arising under” ORS chapter 90. A claim “arises
under ORS chapter 90” when it originates under one of the
sections of that chapter, see, e.g., Barbara Parmenter Living
Trust v. Lemon, 345 Or 334, 341 n 4, 194 P3d 796 (2008)
(claims under ORS 90.322 (unlawful entry of premises); ORS
90.375 (unlawful ouster); and ORS 90.425 (unlawful dispo-
sition of personal property)); or when it has a connection to
a dispute under a residential lease or rental agreement sub-
ject to ORS chapter 90. See Whittle v. Marion County Dist.
Court, 108 Or App 463, 816 P2d 658 (1991) (attorney fees
Cite as 316 Or App 287 (2021) 293
available under ORS 90.255 in writ of review proceeding
seeking to recover possession of residential rental premises).
R&R’s counterclaim for breach of contract was not brought
under a section of ORS chapter 90. But it did have its origin
in the FED proceeding: R&R contended that plaintiffs had
breached a component of the stipulated judgment, which
came into existence in the context of the FED proceeding.
Attorney fees are available under ORS 90.255 in
an FED proceeding originating out of a residential lease.
Kendall v. Daggett, 139 Or App 170, 911 P2d 971 (1996).
Because the stipulated judgment in this case came into exis-
tence as a result of R&R’s FED proceeding originating out
of a residential lease subject to ORS chapter 90, we conclude
that the trial court was correct in determining that plain-
tiffs were entitled to their attorney fees for prevailing on
R&R’s counterclaim for breach of the stipulated judgment.
In view of our conclusion that the trial court did
not err in awarding fees under ORS 90.255, we need not
consider whether the trial court erred in concluding that
attorney fees were also available under the parties’ lease
agreement.
Affirmed.