Hathaway v. B & J Property Investments, Inc. ( 2023 )

648
Argued and submitted February 15, 2022, reversed and remanded May 3, 2023
Loren HATHAWAY,
on behalf of himself and all others
similarly situated within the state of Oregon;
Gennise Hathaway, on behalf of herself and all others
similarly situated within the state of Oregon; and
Heather Noble, on behalf of herself and all others
similarly situated within the state of Oregon,
Plaintiffs-Respondents,
v.
B & J PROPERTY INVESTMENTS, INC.,
an Oregon corporation;
Better Business Management, Inc., an Oregon
corporation doing business as Salem RV Park; and
William J. Berman, an individual,
Defendants-Appellants.
Marion County Circuit Court
13C14321; A169427
531 P3d 152
In 2013, plaintiffs Loren and Gennise Hathaway (the Hathaways) filed suit on
behalf of themselves and all similarly situated persons against Better Business
Management, Inc. (BBM), the manager of Salem RV Park, where the Hathaways
lived, alleging that certain park utility billing practices violated ORS 90.315(4)
(2011) of the Oregon Landlord Tenant Act (ORLTA). As the litigation progressed,
plaintiffs brought an additional claim for unlawful retaliation under ORS 90.385
after the park raised monthly rents by $20 in the first months of litigation. By late
2017, the court had resolved nearly all the issues in the litigation, largely through
a series of partial summary judgment rulings that, in total, held BBM liable to
plaintiffs for violations of the ORLTA pursuant to ORS 90.315(4) (2011) and ORS
90.385 and awarded plaintiffs nearly $5 million in damages. BBM asserts nine
assignments of error arising from class certification, summary judgment rulings
for plaintiffs on the ORLTA claims, an order directing defendants to bear the
costs of class notice, the court’s order striking defendant’s “good faith” affirma-
tive defense, and the attorney fee award. Held: The Court of Appeals concluded
that the trial court erred (1) in certifying a 10-year class for plaintiffs’ claims
under ORS 90.315(4) (2011), a ruling which was based on the court’s conclusion
that a discovery rule applied to the statute of limitations for plaintiffs’ ORLTA
claims, ORS 12.125, as described in BBM’s second assignment of error; (2) in
granting partial summary judgment to plaintiffs on the issue of BBM’s liabil-
ity under ORS 90.315(4) (2011) for its rate billing practices, a ruling that was
due to the trial court’s conclusion that BBM violated ORS 90.315(4) (2011) as a
matter of law when it charged tenants a higher kilowatt-per-hour (kWh) rate for
electricity than the electricity utility had charged BBM, as described in BBM’s
first assignment of error; and (3) in granting partial summary judgment to plain-
tiffs on the issue of damages under ORS 90.315(4) (2011) based on its erroneous
Cite as 325 Or App 648 (2023) 649
interpretation of the damages provision in ORS 90.315(4)(e) (2011), as described
in BBM’s seventh assignment of error. The court also concluded that several
rulings were not erroneous—specifically, the trial court’s grant of partial sum-
mary judgment to plaintiffs on the issue of BBM’s liability under ORS 90.315(4)
(2011) for its “meter reading fee,” a ruling which was based on its conclusion that
BBM’s $10 meter reading fee violated ORS 90.315(4) (2011) as a matter of law,
as described in BBM’s second assignment of error, and the trial court’s grant of
partial summary judgment to plaintiffs on their retaliation claim, a ruling which
was based on the trial court’s conclusion that BBM’s rent increase constituted
retaliation under ORS 90.385 as a matter of law, as described in BBM’s fifth
assignment of error. The court also concluded that, to the extent that the trial
court erred as alleged in BBM’s sixth assignment of error in striking BBM’s good
faith defense, any error was harmless. The court summarily rejected or did not
need to address the other assignments of error.
Reversed and remanded.
Dennis J. Graves, Judge. (General Judgment dated
October 31, 2018)
Donald D. Abar, Judge. (Supplemental Judgment dated
January 2, 2020)
Matthew J. Kalmanson argued the cause for appellants.
Also on the briefs were Hart Wagner LLP, and Janet M.
Schroer.
Rick Klingbeil argued the cause for respondents. Also on
the briefs were Rick Klingbeil, PC, Brady Mertz, PC, and
Brady Mertz.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed and remanded.
650 Hathaway v. B & J Property Investments, Inc.
SHORR, P. J.
This appeal reaches us following nearly seven
years of class-action litigation in the trial court. In 2013,
plaintiffs Loren and Gennise Hathaway (the Hathaways)
first filed suit on behalf of themselves and all similarly sit-
uated persons against the owners and managers of Salem
RV Park, where the Hathaways lived, alleging that certain
park utility billing practices violated ORS 90.315(4) (2011) of
the Oregon Landlord Tenant Act (ORLTA).1 Originally, the
defendants to the action were Better Business Management,
Inc. (BBM), which managed the park, and B & J Property
Investments, Inc. (B & J), which owned the land. As the lit-
igation progressed, more named plaintiffs joined; plaintiffs
added William Berman, an owner and president of BBM
and B & J, as a defendant; plaintiffs brought an additional
claim for unlawful retaliation under ORS 90.385 after the
park raised monthly rents by $20 in the first months of lit-
igation; and, eventually, plaintiffs sought to pierce BBM’s
corporate veil to recover damages for BBM’s violations from
both B & J and Berman individually.2
By late 2017, the court had resolved nearly all the
issues in the litigation, largely through a series of partial
summary judgment rulings that, in total, held BBM liable
to plaintiffs for violations of the ORLTA pursuant to ORS
90.315(4) (2011) and ORS 90.385 and awarded plaintiffs
nearly $5 million in damages. The case then proceeded to
a bench trial solely on the issue of whether to pierce BBM’s
corporate veil to permit plaintiffs to recover those damages
from B & J and Berman. The court again ruled in plain-
tiffs’ favor and entered a general judgment against all
three defendants, “and each of them,” on plaintiffs’ claims.
Over the next year, litigation over attorney fees and costs
1
ORS 90.315(4) (2011) was subsequently amended after plaintiffs filed their
class action complaint. See Or Laws 2015, ch 388, § 8. As a result, we refer to the
2011 version of the statute throughout this opinion. Where other ORLTA statutes
mentioned in this opinion have substantively changed since plaintiffs filed their
action, we cite to the 2011 versions of those statutes as well.
2
Plaintiffs also alleged other claims during the litigation pursuant to ORS
646.608 of the Unlawful Trade Practices Act and ORS 124.100 for financial abuse
of elderly persons. Those claims were ultimately unsuccessful and are not at
issue on appeal.
Cite as 325 Or App 648 (2023) 651
ultimately resulted in entry of a supplemental judgment
awarding plaintiffs nearly $1 million in fees.
Defendants appeal from the court’s general and
supplemental judgments. BBM asserts nine assignments of
error arising from class certification, summary judgment
rulings for plaintiffs on the ORLTA claims, an order direct-
ing defendants to bear the costs of class notice, the court’s
order striking defendant’s “good faith” affirmative defense,
and the attorney fee award. In separate briefing, B & J and
Berman assert seven assignments of error arising from the
piercing trial.
Because we conclude that the trial court erred as
to several of its legal rulings that occurred early in the lit-
igation, we reverse and remand the general judgment for
further proceedings. Specifically, we conclude that the trial
court erred (1) in certifying a 10-year class for plaintiffs’
claims under ORS 90.315(4) (2011), a ruling which was
based on the court’s conclusion that a discovery rule applied
to the statute of limitations for plaintiffs’ ORLTA claims,
ORS 12.125, as described in BBM’s second assignment of
error; (2) in granting partial summary judgment to plain-
tiffs on the issue of BBM’s liability under ORS 90.315(4)
(2011) for its rate billing practices, a ruling that was due
to the court’s conclusion that BBM violated ORS 90.315(4)
(2011) as a matter of law when it charged tenants a higher
kilowatt-per-hour (kWh) rate for electricity than the elec-
tricity utility had charged BBM, as described in BBM’s first
assignment of error; and (3) in granting partial summary
judgment to plaintiffs on the issue of damages under ORS
90.315(4) (2011) based on its erroneous interpretation of the
damages provision in ORS 90.315(4)(e) (2011), as described
in BBM’s seventh assignment of error.
We also write to address several rulings that we
conclude were not erroneous—specifically, the court’s grant
of partial summary judgment to plaintiffs on the issue of
BBM’s liability under ORS 90.315(4) (2011) for its “meter
reading fee,” a ruling which was based on its conclusion that
BBM’s $10 meter reading fee violated ORS 90.315(4) (2011)
as a matter of law, as described in BBM’s second assign-
ment of error, and the court’s grant of partial summary
652 Hathaway v. B & J Property Investments, Inc.
judgment to plaintiffs on their retaliation claim, a ruling
which was based on the court’s conclusion that BBM’s rent
increase constituted retaliation under ORS 90.385 as a mat-
ter of law, as described in BBM’s fifth assignment of error.
We also conclude that, to the extent that the court erred
as alleged in BBM’s sixth assignment of error in striking
BBM’s good faith defense, any error was harmless for the
reasons explained below. BBM’s eighth assignment of error,
which asserts that the trial court erred in granting partial
summary judgment to plaintiffs on the issue of calculating
retaliation damages under ORS 90.375, is undeveloped in
part and unpreserved in part, as explained in greater detail
below, and we thus reject it. BBM’s third assignment of error
depends on the argument that the court erred in granting
partial summary judgment to plaintiffs on any theory of
BBM’s liability under ORS 90.315(4) (2011), and we reject
that assignment of error because we reject the argument
it depends on. BBM’s fourth assignment of error is mooted
by our conclusion that the trial court erred in certifying a
10-year class. Thus, we do not further discuss BBM’s third
and fourth assignments of error.
We also do not address the assignments of error
raised by defendants B & J and Berman that pertain to
the piercing trial that followed the court’s legal rulings
addressed above, because we are not persuaded that those
issues would necessarily arise in the same way and with the
same factual evidence on remand. We reverse the general
judgment in this case due to other legal errors, returning
this case to a posture that existed well before the pierc-
ing trial occurred. On remand, BBM’s ultimate liability to
plaintiffs will be significantly reduced, and assuming that
plaintiffs still pursue a piercing claim under those circum-
stances, the issues presented to the court may be markedly
different as well.
Finally, we do not address BBM’s ninth assignment
of error regarding plaintiffs’ attorney fee award. We reverse
the court’s supplemental judgment as a matter of law because
we are reversing the general judgment to which that sup-
plemental judgment applies. See ORS 20.220(3)(a) (“[w]hen
an appeal is taken from a judgment under ORS 19.205 to
which an award of attorney fees or costs and disbursements
Cite as 325 Or App 648 (2023) 653
relates[, i]f the appellate court reverses the judgment, the
award of attorney fees or costs and disbursements shall be
deemed reversed”).
Because BBM’s assignments of error implicate vary-
ing standards of review as to the facts, we do not provide
facts relevant to the litigation as a whole, but instead detail
any facts relevant to a given assignment of error within our
discussion of that issue. BBM’s assignments of error do not
track the chronological development of the litigation in the
trial court, and we do not attempt to address each assign-
ment in precise chronological order either. Instead, we orga-
nize our discussion into the three main overarching topics
at issue in BBM’s appeal. We begin with the court’s class
certification ruling, in which the court applied a discovery
rule to the one-year statute of limitations in ORS 12.125.
We then address the court’s summary judgment rulings on
liability and damages for plaintiffs’ utility billing claims
under ORS 90.315(4) (2011). Lastly, we address the court’s
summary judgment and ORCP 21 E(2) rulings relevant to
plaintiffs’ retaliation claim under ORS 90.385 and BBM’s
affirmative defense thereto.
I. ORS 12.125 STATUTE OF LIMITATIONS AND
BBM’S SECOND ASSIGNMENT OF ERROR
We begin by addressing BBM’s contention that the
trial court erred when it certified a 10-year class for plain-
tiffs’ utility billing claims, a ruling which depended on the
court’s conclusion that the one-year statute of limitations for
ORLTA claims, ORS 12.125, includes a discovery rule that
tolls the limitation period until a tenant knew or reasonably
should have known that they had a cause of action under the
ORLTA. That argument constitutes the bulk of BBM’s sec-
ond assignment of error.3 We review the trial court’s ruling
for errors of law. Waxman v. Waxman & Associates, Inc., 224
Or App 499, 503, 198 P3d 445 (2008).
3
BBM also raises the argument that, if we conclude that the trial court erred
in ruling that BBM violated ORS 90.315(4) (2011), we must also reverse the class
certification decision, because the court’s “incorrect view” of ORS 90.315(4) (2011)
“necessarily drove its conclusion that class treatment was appropriate.” We reject
that argument because we conclude, as discussed later in our opinion, that the
trial court did not err in granting partial summary judgment to plaintiffs based
on its conclusion that BBM’s meter fee violated ORS 90.315(4) (2011).
654 Hathaway v. B & J Property Investments, Inc.
The only relevant facts are procedural. In the trial
court, the parties agreed that ORS 12.125 set a one-year
limitations period applicable to plaintiffs’ ORLTA claims but
disagreed on whether ORS 12.125 incorporated a discovery
rule. While plaintiffs contended that their ORLTA claims
were subject to a discovery rule, BBM contended that they
were not and asserted that plaintiffs “should be barred from
bringing their [O]RLTA claims and defining any alleged
class for the [O]RLTA claims for any period of time greater
than [one] year prior to the filing of the complaint.”
After briefing and argument on the issue, the trial
court issued a letter opinion in which it stated that the
requirements for class certification had been met and that
a discovery rule applied to toll the applicable statute of lim-
itations. However, the court relied on ORS 12.110(1), a pro-
vision applicable to tort claims that neither party had cited
as controlling. In its later order certifying a 10-year class for
the electricity billing claims, the court restated that “[t]he
statute of limitations applicable to the ORLTA claims is one
year pursuant to ORS 12.125” and “[t]he discovery rule shall
apply to toll the applicable statute of limitations relating to
the ORLTA.”
On appeal, the parties reprise their arguments
made to the trial court below. BBM contends that the text,
context, and legislative history of ORS 12.125 “support the
argument that the legislature did not intend for ORS 12.125
to embody a discovery rule.” Plaintiffs contend the opposite.
“The existence of a discovery rule cannot be
assumed, but rather must be embodied in the applicable
statute of limitations.” Rice v. Rabb, 354 Or 721, 726, 320 P3d
554 (2014). Thus, the parties’ arguments present a question
of statutory interpretation to which we apply our familiar
methodology, considering the text, context, and any relevant
legislative history we deem helpful. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009). We apply that method-
ology to determine whether the legislature intended to
incorporate a discovery rule in ORS 12.125, and thus begin
by examining the text and context of that statute as well
as any case law previously interpreting it. Rice, 354 Or at
726.
Cite as 325 Or App 648 (2023) 655
We begin with the statute at issue. ORS 12.125
states that “[a]n action arising under a rental agreement or
ORS chapter 90 shall be commenced within one year.” On
its face, then, nothing in the plain text of ORS 12.125 states
explicitly that the legislature intended for that limitations
period to begin when the plaintiff discovers or should have
discovered the harm, rather than when the facts necessary
for the plaintiff to prove their claim have occurred. We have
generally stated that, “when the legislature intends to sub-
ject a statute of limitations to a discovery rule, it knows how
to make its intent to do so clear.” Waxman, 224 Or App at
511; see also, e.g., ORS 12.135(3)(a)(A) (providing that spec-
ified actions must be commenced before the earliest of two
years “after injury or damage is first discovered or in the
exercise of reasonable care should have been discovered”).
However, “the absence of an express discovery pro-
vision * * * is not dispositive.” Rice, 354 Or at 730 (listing
cases where the Supreme Court applied a discovery rule
absent explicit language). Notably, the Supreme Court has
interpreted the word “accrue” to incorporate a discovery
rule in many circumstances. Id. at 728. As a result, case
law establishes that tort claims generally “accrue” when the
“plaintiff obtain[s] knowledge, or reasonably should have
obtained knowledge of the tort committed upon her person
by defendant.” Berry v. Branner, 245 Or 307, 316, 421 P2d
996 (1966).
Plaintiffs first defend the trial court’s ruling by con-
tending that the plain language of ORS 12.125 includes a
discovery rule via “accrual” language. As we understand it,
plaintiffs assert that, in specifying that ORS 12.125 applies
to “[a]n action arising under a rental agreement or ORS
chapter 90,” the legislature intended for the term “arising”
to function as “accrual” language that communicated a dis-
covery rule. (Emphasis added.) That argument appears to
rely on the Berry opinion’s definition of the word “accrue”
as “to arise, to happen to come into force or existence.” 245
Or at 311-12 (emphasis added). Plaintiffs further claim that
our opinion in Abraham v. Kendall, 69 Or App 341, 686 P2d
428 (1984), already established that ORS 12.125 includes
“accrual” language that incorporates a discovery rule.
656 Hathaway v. B & J Property Investments, Inc.
We reject that argument. In specifying that “[a]n
action arising under a rental agreement or ORS chapter
90 shall be commenced within one year,” ORS 12.125 uses
the word “arising” as part of the phrase “arising under.”
(Emphasis added.) That phrase designates the variety of
claims to which the statute is applicable—those arising from
a breach of a rental agreement or a violation of ORS chapter
90. As used here, the word “arise” means “to originate from
a specified source.” Webster’s Third New Int’l Dictionary 117
(unabridged ed 2002); see also Waldner v. Stephens, 345 Or
526, 540, 200 P3d 556 (2008) (“Combining the ordinary
meaning of ‘arise’ (‘to originate from a specified source,’ ‘to
come into being’) and ‘under’ (‘in accordance with’), we think
that the phrase ‘action arising under a rental agreement
or [the ORLTA]’ is most naturally read as applying when
the action itself is authorized by, or brought in accordance
with, one of those two sources.” (Footnotes and emphasis
omitted.)).
Further, our opinion in Abraham does not support
plaintiffs’ argument. That case involved an alleged oral con-
tract in which the plaintiff agreed to lease a space in defen-
dant’s mobile home park on a month-to-month basis and
the defendant agreed to obtain certain county permits for
the plaintiff. 69 Or App at 343. The discussion in Abraham
that plaintiffs cite does not address whether a discovery rule
applies to ORS 12.125—although we framed the issue as
when the plaintiff’s cause of action “accrued,” our discus-
sion was clearly focused on determining when the defendant
breached the alleged oral contract to obtain the permits,
and we did not discuss or consider whether a discovery rule
applied to the claim. Id. at 346. That approach was consis-
tent with the well-settled principle that “a contract claim
accrues on breach.” Waxman, 224 Or App at 512; see also
Romero v. Amburn, 323 Or App 410, 415, 523 P3d 1135
(2022) (summarize the case law supporting that principle
going back “more than 50 years”).4 In other words, Abraham
4
In Romero, we recently reaffirmed the rule that a breach of contract action
accrues at the time of breach, even while acknowledging that the rule might
appear inconsistent with some of the reasoning in the Supreme Court’s opinion in
Rice. See 323 Or App at 421 (“contract actions ‘accrue’ at the time of breach, * * *
even if most other types of actions ‘accrue’ when the plaintiff knew or reasonably
should have known of the wrong, under the reasoning of Rice”).
Cite as 325 Or App 648 (2023) 657
does not support plaintiffs’ contention that ORS 12.125 con-
tains “accrual” language that implicates a discovery rule.
Plaintiffs next contend that ORS 12.125 is subject
to a discovery rule by operation of ORS 12.010, and that con-
tention presents a closer issue. Our precedent establishes
that, even when a statute of limitations does not contain
a discovery rule on its face, the statute may incorporate a
discovery rule by operation of ORS 12.010, the introductory
statute to ORS chapter 12. See Rice, 354 Or at 728, 730. ORS
12.010 states that “[a]ctions shall only be commenced within
the periods prescribed” in ORS chapter 12, “after the cause
of action shall have accrued, except where a different lim-
itation is prescribed by statute.” (Emphasis added.) A claim
“accrue[s]” under ORS 12.010 when the “plaintiff obtained
knowledge, or reasonably should have obtained knowledge”
of the claim. Rice, 354 Or at 728.
In Rice, the Supreme Court determined that ORS
12.010 may attach a discovery rule to other ORS chapter
12 statutes of limitations that lack language specifying
when the limitations period begins to run. Rice, 354 Or at
728. There, the court considered ORS 12.080(4), the stat-
ute of limitation for conversion and replevin claims, which
declares only that such actions “shall be commenced within
six years.” The court concluded that ORS 12.080(4) did “not
specify when the limitation begins to run” and therefore
“f[ell] under the purview of ORS 12.010.” Rice, 354 Or at
728. As a result, the court read ORS 12.080(4) and ORS
12.010 together to require that relevant actions be com-
menced within six years from the point in time when the
action “accrued” pursuant to ORS 12.010, or when “plain-
tiff obtained knowledge, or reasonably should have obtained
knowledge of the tort committed upon her person by a
defendant.” Id. In the years since Rice, we have attached
the discovery rule in ORS 12.010 to a number of other stat-
utes of limitations in ORS chapter 12 by following the same
analysis. See Hayes Oyster Co. v. DEQ, 316 Or App 186, 200,
504 P3d 15 (2021), rev den, 369 Or 507 (2022) (attaching
discovery rule in ORS 12.010 to limitation period in ORS
12.140); Hammond v. Hammond, 296 Or App 321, 334, 438
P3d 408 (2019) (attaching discovery rule in ORS 12.010 to
12.050); Tavtigian-Coburn v. All Star Custom Homes, LLC,
658 Hathaway v. B & J Property Investments, Inc.
266 Or App 220, 222, 337 P3d 925 (2014) (attaching discov-
ery rule in ORS 12.010 to 12.080(3)).
Discerning whether ORS 12.010 attaches a discov-
ery rule to ORS 12.125 seems like a simple question on first
blush. ORS 12.125 is a statute of limitations in ORS chapter
12, and it does not contain language specifying when the
limitations period begins to run, directing only that “[a]n
action arising under a rental agreement or ORS chapter 90
shall be commenced within one year.” By its plain language,
ORS 12.125 is similar to other statutes of limitations that
include a discovery rule by operation of ORS 12.010. See
ORS 12.050; ORS 12.080(3) - (4); ORS 12.140.
However, defendant correctly observes that ORS
12.125 was placed in ORS chapter 12 by the Office of
Legislative Counsel. See Vollertsen v. Lamb, 302 Or 489,
495-96, 732 P2d 486 (1987) (explaining that ORS 12.125
was originally passed as Senate Bill (SB) 159, section 39
(1973)—part of the same bill that codified the original
ORLTA in ORS chapter 90—but that “[d]uring the process
of compilation for inclusion in the Oregon Revised Statutes,
Legislative Counsel moved this section to chapter 12”).
Proceeding from that fact, defendant argues that there is no
evidence that the legislature intended for ORS 12.125 to be
codified in ORS chapter 12, and therefore no evidence that
the legislature intended for ORS 12.010 to apply a discovery
rule to ORS 12.125. In response, plaintiffs contend that, “[i]f
the legislature did not intend ORS 12.125 to be treated as
a ‘period prescribed in’ ORS chapter 12 per ORS 12.010, it
could have indicated so or moved it back to ORS chapter 90.”
Because the legislature never amended ORS 12.125 in such
a way despite opportunities to do so, plaintiffs contend that
“ORS 12.125 is on equal footing with the other statutes of
limitation contained in ORS chapter 12.”
We note first that the lack of legislative action
moving ORS 12.125, or otherwise amending its language,
is not particularly compelling evidence that the legislature
intended for ORS 12.010 to attach a discovery rule to ORS
12.125. See Berry, 245 Or at 311 (“Legislative inaction is a
weak reed upon which to lean in determining legislative
Cite as 325 Or App 648 (2023) 659
intent.”). However, we understand plaintiffs to essentially
contend that the legislative history of ORS 12.125 is insuf-
ficient to overcome our case law that ORS 12.010 applies a
discovery rule to ORS chapter 12 statutes of limitations that
look like ORS 12.125. Indeed, recent cases applying ORS
12.010 to other statutes of limitations have not analyzed
how those statutes came to be codified in ORS chapter 12;
it was enough that they simply were statutes of limitations
in ORS chapter 12 that lacked “triggering event” language.
See, e.g., Hayes Oyster Co., 316 Or App at 200 (“Because the
catch-all statute, ORS 12.140, falls within the scope of ORS
12.010, we regard the discovery rule applicable.” (Footnote
omitted.)).
Despite those factors, however, a review of the leg-
islative history of ORS 12.125 leads us to conclude that the
legislature did not intend for ORS 12.010 to apply a discov-
ery rule to ORS 12.125. To explain why, we summarize the
legislative history of both statutes. We start by considering
ORS 12.010, which predated the enactment of the ORLTA
and ORS 12.125.
ORS 12.010 has roots as one of Oregon’s oldest stat-
utes. The statute that would become ORS 12.010 was first
passed during the Second Legislative Assembly in 1862
and was part of the first Code of Civil Procedure. An Act
to Provide a Code of Civil Procedure, Or Laws 1862, ch 1,
title II, § 3, compiled in General Laws of Oregon, Civ Code,
ch 1, title II, § 3, p 140 (Deady 1845-1864) (“Actions at law
shall only be commenced within the periods prescribed in
this title, after the cause of action shall have accrued; except
where, in special cases a different limitation is prescribed
by statute.”).5 It has remained largely unchanged ever since.
See Rice, 354 Or at 726 n 7 (although ORS 12.010 has “under-
gone slight modification and renumbering” since 1862, “the
relevant operative text remains the same”). Chapter I, title
II of the original Code of Civil Procedure was organized in
much the same way as today’s ORS chapter 12—section 3
5
It appears that the 1862 law was largely derived from an earlier territorial
version. See Statutes of Oregon 1854, Act for the Limitation of Actions, ch 1, § 1,
p 170 (“actions shall only be commenced within the periods prescribed in this
chapter, after the cause of action shall have accrued, except when in special cases
a different limitation is prescribed by statute”).
660 Hathaway v. B & J Property Investments, Inc.
introduced the title, then various provisions defined the lim-
itation periods for certain categories of actions. Like ORS
12.010, many of those first statutes of limitations remain
largely the same today. See, e.g., General Laws of Oregon,
Civ Code, ch 1, title II, § 6(2), p 141 (Deady 1845-1864)
(defining a six-year limitation period for actions “upon a
liability created by statute, other than a penalty or forfei-
ture,” today codified as ORS 12.080(2)); General Laws of
Oregon, Civ Code, ch 1, title II, § 6(4), p 141 (Deady 1845-
1864) (defining a six-year limitation period for actions “for
taking, detaining or injuring personal property, including
an action for the specific recovery thereof,” today codified
as ORS 12.080(4)). Thus, when the legislature originally
created the predecessor to ORS 12.010 stating that actions
“shall be commenced within the periods prescribed in this
title,” it intended for that provision to apply to the statutes of
limitations in chapter I, title II of the same act. Although the
legislature surely contemplated that new statutes of limita-
tions could become part of title II due to future lawmaking,
section 3 originally applied to a set collection of statutes of
limitations.
With that in mind, we turn to ORS 12.125. ORS
12.125 was first passed in 1973 as part of SB 159, which
created the ORLTA. When the bill was first introduced,
however, it did not contain a statute of limitations provi-
sion applicable to the causes of action the bill created. The
Senate Committee on Local Government and Urban Affairs
amended the bill to add what became section 39, providing
that “[a]n action arising under sections 1 to 35 of this Act
shall be commenced within one year.” See Exhibit 1, Senate
Local Government & Urban Affairs Committee, SB 159,
March 26, 1973 (memorandum and adopted amendments
to SB 159). The House Committee on Local Government
and Urban Affairs later adopted an amendment to extend
the statute to also cover actions under a rental agreement.
See Minutes, House Local Government & Urban Affairs
Committee, SB 159, June 1, 1973, 4-5 (adopting proposed
amendments dated May 18, 1973). In its final form, section
39 stated: “An action arising under a rental agreement or
sections 1 to 33 of this Act shall be commenced within one
year.” Or Laws 1973, ch 559, § 39.
Cite as 325 Or App 648 (2023) 661
The legislative history to SB 159 contains little
background on the provision, presumably because it was
part of a much larger bill. The record notes only that section
39 institutes a “short” one-year limitations period and “was
added at the suggestion of Senator John Burns [to] prevent
landlords and tenants from dragging out ancient history
in a dispute between them.” Explanation of Engrossed SB
159, House Local Government & Urban Affairs Committee,
SB 159, May 18, 1973, 8. We see no indication that the leg-
islature ever discussed whether a discovery rule would or
should apply.
Most of the ORLTA created new provisions of law,
and although there is some evidence that legislators may
have expected that the act would “replace” the existing
landlord-tenant provisions in ORS chapter 91, the final act
did not specify that any of the provisions were “added to
and made a part of” any preexisting chapter. See Exhibit 2,
Senate Local Government & Urban Affairs Committee, SB
159, Mar 20, 1973 (memorandum on proposed amendments
to SB 159) (explaining that the act “would replace ORS
[chapter] 91”); Or Laws 1973, ch 559 (specifying only that
act “creat[es] new provisions”). This is important, because
the legislature knew how to specify that a provision should
be added to and made a part of a certain chapter or series,
yet did not take that action here. See, e.g., Or Laws 1973,
ch 694, § 21 (in legislation from same year, specifying that
“[s]ections 22 to 25” of act relating to parole procedures “are
added to and made a part of ORS 144.310 to 144.400”); Or
Laws 1971, ch 285, § 1 (specifying that “[s]ection 2” of act
relating to ad valorem taxation “is added to and made a part
of ORS chapter 307”).
It then fell upon the Office of Legislative Counsel
to codify the new law into the Oregon Revised Statutes. See
ORS 173.160 (explaining that Legislative Counsel “prepar[es]
editions of the statutes for publication and distribution”). As
part of its statute preparation duties, Legislative Counsel
may renumber or rearrange sections so long as those changes
do “not alter the sense, meaning, effect or substance of any
Act.” ORS 173.160. Absent direction from the legislature
that the provisions were “added to and made a part of” any
662 Hathaway v. B & J Property Investments, Inc.
specific chapter or series, Legislative Counsel codified most
of the new Act in ORS chapter 91 (which was later renum-
bered to ORS chapter 90) but codified the statute of limita-
tions provision into ORS chapter 12. See Vollertsen, 302 Or
at 495-96 (explaining that history).
Thus, there is no evidence that the legislature
intended for the ORLTA statute of limitations to be codified
in ORS chapter 12 or subject to the discovery rule in ORS
12.010. Not only did the legislature know how to make such
an intent clear, but it had also used the required language to
explicitly add another statute of limitations to ORS chapter
12 in the prior legislative session. See Or Laws 1971, ch 664
(specifying that sections that later became the original ver-
sion of ORS 12.135 “are added to and made a part of ORS
12.070 to 12.260”). In the case of ORS 12.135, including the
“added to and made a part of” language means that ORS
12.135 is part of ORS chapter 12 for purposes of other pro-
visions that broadly apply to ORS chapter 12. Here, the leg-
islature could have made ORS 12.125 subject to ORS 12.010
by using the “added to and made a part of” convention but
took no such action.
Because the placement of the ORLTA statute of
limitations in ORS chapter 12 was the result of an orga-
nizational decision by Legislative Counsel, and not legisla-
tive action adding the statute to and making it a part of
ORS chapter 12, we cannot draw any legislative intention
from the placement of ORS 12.125 within ORS chapter 12.
Legislative Counsel cannot “alter the sense, meaning,
effect or substance of any Act.” ORS 173.160. Legislative
Counsel’s editorial actions in assigning an enacted law an
ORS number within a certain chapter does not mean that
the law is therefore subject to other general provisions that
apply to that chapter; that sort of effect, when it occurs,
must be the result of legislative action. See State v. Burris,
370 Or 339, 354 n 10, 518 P3d 891 (2022) (“A statute has
the effect of falling within a series only if the legislature
says that it falls within the series.”). Thus, we conclude
that ORS 12.125 is not affected by the language in ORS
12.010 applicable to limitations “periods prescribed in this
chapter.”
Cite as 325 Or App 648 (2023) 663
Finally, we conclude that Rice and its progeny do not
mandate that any statute of limitations in ORS chapter 12
that lacks triggering language is subject to a discovery
rule by operation of ORS 12.010, regardless of other factors.
Rice, Tavtigian-Coburn, Hammond, and Hayes Oyster Co. all
involved statutes of limitations that were part of the 1862
Code of Civil Procedure that first enacted the predecessor to
ORS 12.010. See Rice, 354 Or at 723 (applying discovery rule
in ORS 12.010 to ORS 12.080(4), formerly chapter I, title II,
section 6(4) of 1862 Code); Hayes Oyster Co., 316 Or App at
200 (applying discovery rule in ORS 12.010 to 12.140, for-
merly chapter 1, title II, section 11 of 1862 Code); Hammond,
296 Or App at 334 (applying discovery rule in ORS 12.010
to 12.050, formerly chapter 1, title II, section 4(1) of 1862
Code); Tavtigian-Coburn, 266 Or App at 222 (applying dis-
covery rule in ORS 12.010 to 12.080(3), formerly chapter 1,
title II, section 6(3) of 1862 Code). The legislature’s intent
for those statutes of limitations to be subject to and inter-
act with ORS 12.010 was clear. In other words, Rice and its
progeny do not imply that the question whether ORS 12.010
attaches a discovery rule to a certain statute of limitation
is determined only by where the statute was codified and
whether it lacks relevant triggering language. As to a stat-
ute like ORS 12.125, the lack of any legislative intent for the
statute to be added to and made a part of ORS chapter 12
controls over those other considerations.
For those reasons, we conclude that a discovery
rule does not apply to ORS 12.125. In the absence of a dis-
covery rule, a limitations period begins to run when every
fact necessary for the plaintiff to prove the elements of their
claim has occurred and the plaintiff has a right to sue. See
Stupek v. Wyle Laboratories Corp., 327 Or 433, 438, 963 P2d
678 (1998) (so stating). As to plaintiffs’ ORS 90.315(4) (2011)
claims that fall under the one-year statute of limitations in
ORS 12.125, the limitations period began to run when the
relevant billing violations occurred. Thus, the trial court
erred in certifying a 10-year class for plaintiffs’ claims
under ORS 90.315(4) (2011).6
6
We do not address plaintiffs’ contention that defendant should be “estopped”
from asserting a statute of limitations defense, because we conclude that plain-
tiffs did not present that argument in the trial court or request our consideration
of the argument under our “right for the wrong reason” doctrine.
664 Hathaway v. B & J Property Investments, Inc.
II. PLAINTIFFS’ ORS 90.315(4) (2011) CLAIMS
AND BBM’S FIRST AND SEVENTH
ASSIGNMENTS OF ERROR
A. BBM’s Liability under ORS 90.315(4) (2011) and First
Assignment of Error
We next address BBM’s first assignment of error, in
which it contends that the trial court erred “when it granted
summary judgment to plaintiffs on their ORS 90.315(4)
[(2011)] claims.” That ruling was based on the trial court’s
legal conclusions that (1) to the extent that BBM charged
residents a higher kWh rate for electricity than BBM was
billed by the utility provider, Portland General Electric
(PGE), that practice violated ORS 90.315(4) (2011); and
(2) BBM’s practice of charging residents a meter reading fee
violated ORS 90.315(4) (2011). On review, we view the evi-
dence, and all reasonable inferences that may support it, in
the light most favorable to BBM as the nonmoving party to
determine whether there are any genuine issues of material
fact and whether plaintiffs were entitled to judgment as a
matter of law. Day v. Day, 299 Or App 460, 461, 450 P3d 1
(2019). In so doing, we first conclude that the trial court
erred in granting summary judgment to plaintiffs on their
rate claim, as plaintiffs were not entitled to judgment as a
matter of law on that claim. However, we conclude that the
trial court did not err in granting plaintiffs’ summary judg-
ment motion on the meter reading claim.
We take the relevant facts from the summary judg-
ment record.7 BBM operated a 158-site recreational vehi-
cle (RV) park in Salem. The park’s rental agreements with
its residents varied, but stated either that residents were
responsible for “electric” or “Electric As Used,” depending on
the specific tenant and when they signed their agreement,
as an extra charge paid to BBM each month in addition to
rent. Prior to the filing of plaintiffs’ complaint, those agree-
ments did not explain how electricity charges would be cal-
culated or disclose fees for meter reading.
7
We note that plaintiffs have directed our attention to materials that were
not in the record at the time the trial court considered plaintiffs’ motion for sum-
mary judgment. We consider only the evidence that was in the record at the per-
tinent time, viewed in the light most favorable to BBM.
Cite as 325 Or App 648 (2023) 665
Each of the park’s 158 sites were separately metered
for electrical service by individual meters that were owned
by BBM. Approximately six to 12 individual site meters
fed into one PGE-owned submeter, and a total of 16 PGE-
owned submeters serviced all 158 sites at the park. PGE
billed BBM monthly for the electricity delivered to each
PGE-owned submeter at a kWh rate that “varie[d] each
month, and varie[d] monthly between the submeters.” BBM
contended that PGE’s rates ranged from $0.09 to $0.12 per
kWh during the relevant time period.
BBM, in turn, billed residents on a monthly basis
for the electricity used at individual tenant sites. BBM’s
process for determining tenant electricity bills involved
the park’s maintenance worker reading each individual
site meter monthly and computing the electricity used by
subtracting the prior month’s meter reading from the cur-
rent month’s reading. Once the kWh usage for the month
was computed, that number was multiplied by “the current
kWh rate.” Finally, a $10 “meter fee” was added to reach
the total tenant electricity charge amount. The meter fee
was intended to cover BBM’s costs “associated with reading
the meters, the costs associated with installing the individ-
ual tenant site meters, lines and pedestals as well as the
repairs and upkeep for the individual tenant meters.”8
The “current kWh rate” that BBM charged its res-
idents was not the current rate PGE charged BBM for elec-
tricity for the relevant month or submeter, but instead a
$0.12 “flat kWh rate” set by the park. BBM contended that
the different billing periods used by PGE and the park, the
different kWh rates assessed by PGE for different submeters,
and the different kWh rates assessed by PGE from month
to month combined to make computing each resident’s elec-
trical fee based on the actual kWh rate PGE charged for
the resident’s usage “an administrative and accounting bur-
den [that] would result in a high likelihood of error in the
calculations.”
8
Plaintiffs contend on appeal that this fee was instead intended to recoup a
PGE “basic charge.” Plaintiffs’ contention is not supported by the relevant sum-
mary judgment record or consistent with our standard of review to view the evi-
dence in the light most favorable to BBM.
666 Hathaway v. B & J Property Investments, Inc.
BBM’s flat kWh rate was reviewed annually by ana-
lyzing the total amount billed to BBM by PGE for the 16
submeters in the previous year and the total amount paid
by residents for electricity in that year. Despite the higher
rate, the park did not make a profit on electricity, appar-
ently because each PGE meter recorded more electricity use
in kilowatt hours than the total of all the individual subme-
ters that fed into it. Although the parties disputed the rea-
son for that discrepancy, they agreed that it existed. BBM
“attempt[ed] to lose a slight amount of money each year” and
had a “longstanding policy to charge its tenants slightly less
for their electricity expenses” than what BBM was charged
by PGE.
In the trial court, plaintiffs moved for partial sum-
mary judgment on two legal issues central to its ORS
90.315(4) (2011) claims: that charging tenants a higher kWh
rate than BBM was billed by the utility and charging a
meter reading fee both violated ORS 90.315(4) (2011) as a
matter of law. BBM contended that neither did. Specifically,
BBM contended that ORS 90.315(4) (2011) did not require it
to bill tenants the same kWh rate as PGE had billed BBM
and instead only required that “the landlord does not make
a profit” on electricity. As to the meter reading fee, BBM
contended that ORS 90.315(4) (2011) was not relevant to the
charge at all because it was for BBM’s services “in account-
ing for the electricity used by the tenant.” After receiving
briefing and argument, the trial court granted plaintiffs’
motions. The parties essentially repeat their summary
judgment arguments on appeal.9
Whether the inflated kWh rate and “meter fee” bill-
ing practices at issue in this case violated ORS 90.315(4)
(2011) as a matter of law are questions of statutory inter-
pretation for which we again turn to the familiar frame-
work laid out in Gaines, 346 Or at 171-72, beginning with
the relevant statute. ORS 90.315 (2011) defines a “[u]tility or
9
We do not address plaintiffs’ arguments that rely on evidence that was not
part of the summary judgment record. As we discuss further below, we also do not
consider arguments plaintiffs make for the first time on appeal that rely on a sec-
tion of the ORLTA relevant to manufactured dwellings and floating homes, both
because plaintiffs did not bring their claims under those statutes and because
the parties agreed below that those statutes did not apply to BBM’s RV park.
Cite as 325 Or App 648 (2023) 667
service,” as used in the statute, specifying that it “includes
but is not limited to electricity, natural or liquid propane
gas, oil, water, hot water, heat, air conditioning, cable tele-
vision, direct satellite or other video subscription services,
Internet access or usage, sewer service and garbage collec-
tion and disposal.” ORS 90.315(1)(b) (2011). ORS 90.315(4)
(2011) then addresses certain landlord obligations regard-
ing utility billing. It states, in part:
“(a) Except for tenancies covered by ORS 90.505 to
90.840, if a written rental agreement so provides, a land-
lord may require a tenant to pay to the landlord a utility or
service charge that has been billed by a utility or service pro-
vider to the landlord for utility or service provided directly to
the tenant’s dwelling unit or to a common area available to
the tenant as part of the tenancy. A utility or service charge
that shall be assessed to a tenant for a common area must
be described in the written rental agreement separately
and distinctly from such a charge for the tenant’s dwelling
unit. Unless the method of allocating the charges to the
tenant is described in the tenant’s written rental agree-
ment, the tenant may require that the landlord give the
tenant a copy of the provider’s bill as a condition of paying
the charges.
“(b) Except as provided in this paragraph, a utility
or service charge may only include the cost of the utility or
service as billed to the landlord by the provider. A landlord
may add an additional amount to a utility or service charge
billed to the tenant if [the charge is for certain cable, satel-
lite, video, or internet services not relevant here.]”
ORS 90.315(4) (2011) (emphases added).
We first consider the inflated kWh rate billing
issue. Pursuant to ORS 90.315(4)(a) (2011), because BBM’s
rental agreements provided that residents were respon-
sible for “electric” or “Electric As Used” (depending on the
rental agreement at issue), BBM could require a resident
to pay a “utility or service charge” that had been billed by
PGE to BBM for electricity (a “utility”) “provided directly to
the tenant’s [RV site or] dwelling unit.” See ORS 90.100(12)
(“ ‘Dwelling unit’ regarding a person who rents a space for a
* * * recreational vehicle * * * means the space rented * * *.”).
And, pursuant to ORS 90.315(4)(b) (2011), that “utility or
668 Hathaway v. B & J Property Investments, Inc.
service charge” could “only include the cost” of the electricity
“as billed” by PGE to BBM. ORS 90.315(4) (2011) does not
mandate that a landlord charge the exact same rate it is
billed by a utility—instead, the landlord is only required to
charge the exact same “cost.” The “cost” of something is gen-
erally “the amount or equivalent paid or given or charged or
engaged to be paid or given for anything bought or taken in
barter or for service rendered : CHARGE, PRICE.” Webster’s
at 515. Here, the kWh rate PGE charged to BBM for resi-
dent site electricity was but one component of the overall
cost charged.
The legislative history of ORS 90.315(4) (2011)
supports that reading. The provision was first passed in
1997 as part of legislation that created new statutes and
amended large swaths of the ORLTA. See Or Laws 1997,
ch 577, § 16. According to the bill’s principal drafter, John
Van Landingham, the utility provisions at issue here were
intended to ensure that “the landlord cannot add on to the
charge” or “include any capital costs incurred by a land-
lord, such as installing a water system.” Exhibit O, House
Commerce Committee, SB 675, May 29, 1997, 8 (accompa-
nying comments by Van Landingham) (emphasis added).
In subsequent years, the provision was subject to minor
changes, but the focus remained on ensuring that landlords
did not pass on more than the overall “cost” billed by the
utility provider.10
Further, we reject plaintiffs’ arguments that we con-
sider the utility billing provisions in ORS 90.531 to 90.543
(2011) in interpreting ORS 90.315(4) (2011). Those statutes
specifically address permissible utility billing methods for
manufactured dwellings and floating home space tenancies
and do not apply to BBM’s RV park. See ORS 90.100(25) (2011)
(“ ‘Manufactured dwelling’ does not include a recreational
vehicle.”); ORS 90.120(5) (2011) (“Residential tenancies for
10
House Bill (HB) 3098 (1999) amended the original 1997 language that “[a]
landlord shall not increase the utility or service charge to the tenant by adding
any costs of the landlord, such as a handling or administrative charge, other
than those costs billed to the landlord by the provider for utilities or services” to
require that “[a] utility or service charge shall include only the value or cost of the
utility or service as billed to the landlord by the provider.” Or Laws 1999, ch 603,
§ 18. SB 772 (2009) subsequently changed “should only include the value or cost”
to “may only include the cost.” Or Laws 2009, ch 816, § 4a.
Cite as 325 Or App 648 (2023) 669
recreational vehicles * * * shall be subject to ORS 90.100
to 90.465.”); ORS 90.315(4)(a) (2011) (excepting “tenancies
covered by ORS 90.505 to 90.840”). Plaintiffs did not bring
their claims under those statutes or raise them below, and
the parties in fact agreed in the trial court that ORS 90.505
to 90.840 (2011) did not apply to BBM’s RV park.
We are also not persuaded that those statutes pro-
vide relevant context for interpreting ORS 90.315(4) (2011).
Indeed, those statutes provide specific guidelines for land-
lord utility billing for those tenancies, limiting landlords who
seek reimbursement for utility service costs to three options:
(1) including the costs in the rent, (2) separately billing ten-
ants via pro rata apportionment based on a “master meter,”
or (3) separately billing tenants based on the tenant’s actual
use as measured by their submeter “at a rate no greater
than the average rate billed to the landlord by the utility or
service provider, not including any base or service charge.”
ORS 90.536(1), (2) (2011); ORS 90.532(1) (2011). However, we
see no evidence that the legislature intended for those stat-
utes to have any application outside of the manufactured
dwelling and floating home tenancies they regulate. See
also ORS 90.315(4)(a) (2011) (excepting “tenancies covered
by ORS 90.505 to 90.840”).
In short, ORS 90.315(4)(a) and (b) (2011) ensure that
a landlord does not upcharge a tenant for utilities beyond
the “cost” that the landlord is billed by the provider. Those
provisions do not require that a landlord must charge a
tenant the exact same kWh rate for electricity that the land-
lord is itself billed by the utility. Of course, a landlord’s use
of an inflated kWh rate may lead to tenant bills that exceed
the landlord’s cost to the provider—in fact, that might be
the most likely result of such a practice. But determining
whether that is the case would depend on the facts.
In this case, plaintiffs did not allege, or later pres-
ent facts in the summary judgment record, that BBM’s
inflated rate billing resulted in electricity charges to ten-
ants that exceeded BBM’s cost to PGE for that electricity,
in violation of ORS 90.315(4) (2011). Instead, in the opera-
tive complaint at the time of their partial summary judg-
ment motion, plaintiffs only alleged that BBM violated
670 Hathaway v. B & J Property Investments, Inc.
ORS 90.315(4) (2011) when it “charged plaintiffs and class
members a rate per kilowatt hour for electricity that was in
excess of the rate defendants paid to PGE.” Because, as we
concluded above, an inflated rate billing practice is not alone
sufficient to violate ORS 90.315(4) (2011) as a matter of law,
the trial court erred in granting partial summary judgment
to plaintiffs on their rate claim.
We reach a different conclusion as to BBM’s practice
of adding a $10 “meter fee” or “meter reading fee” into tenant
electricity charges, however. Again, under ORS 90.315(4)
(2011), “a landlord may require a tenant to pay to the land-
lord a utility or service charge that has been billed by a util-
ity or service provider to the landlord for utility or service
provided directly to the tenant’s dwelling unit,” and a utility
charge for electricity “may only include the cost of the utility
or service as billed to the landlord by the provider.” ORS
90.315(4)(a), (b) (2011). As we understand it, BBM’s argu-
ment is that ORS 90.315(4) (2011) “does not prohibit or even
address the meter fee” to recoup BBM’s capital and admin-
istrative electrical costs, because, in BBM’s view, the fee was
not for PGE’s electricity “provided directly to the tenant’s
dwelling unit,” but instead, for a service BBM provided.
However, BBM misconstrues the relevant language.
ORS 90.315(4) (2011) applies to the meter fee because it was
a surcharge that BBM added into residents’ monthly elec-
tricity charges and not a cost passed on from PGE. BBM
required tenants “to pay to the landlord a utility or service
charge,” or electricity charge, “that ha[d] been billed by a
utility or service provider to the landlord.” ORS 90.315(4)(a)
(2011). That charge was “for utility or service provided
directly to the tenant’s dwelling unit” rather than “a com-
mon area available to the tenant as part of the tenancy.” Id.Thus, BBM’s electricity charges to tenants fell under ORS
90.315(4)(b) (2011) and could “only include the cost of the
utility or service as billed to the landlord by the provider.”
However, the charges were not limited as required. BBM
added a meter reading fee into the tenant electricity charges
to recoup its own capital and labor expenses, expenses which
were not part of the “cost” of electricity “as billed” by PGE.
That type of surcharge is the precise type of billing practice
Cite as 325 Or App 648 (2023) 671
that the legislature intended to prevent with ORS 90.315(4)
(2011). See Exhibit O, House Commerce Committee, SB
675, May 29, 1997, 8 (accompanying comments by Van
Landingham) (explaining that “the landlord cannot add on
to the charge” or “include any capital costs incurred by a
landlord”). Thus, BBM’s meter fee violated ORS 90.315(4)
(2011), and the trial court did not err in granting summary
judgment to plaintiffs on that issue.
B. Damages under ORS 90.315(4) (2011) and BBM’s Seventh
Assignment of Error
We next turn to the arguments in BBM’s seventh
assignment of error, in which it contends that the trial court
erred in granting plaintiffs’ motion for summary judgment
on the issue of damages under ORS 90.315(4)(e) (2011).
Under that provision, “[i]f a landlord fails to comply with
paragraph (a), (b) or (c) of this subsection, the tenant may
recover from the landlord an amount equal to one month’s
periodic rent or twice the amount wrongfully charged to
the tenant, whichever is greater.” ORS 90.315(4)(e) (2011).
Specifically, the court adopted plaintiffs’ view that ORS
90.315(4)(e) (2011) provided one month’s rent as a remedy for
each specific and repeated violation of ORS 90.315(4)(a) to (c)
(2011), such that each tenant could receive as much as two
month’s rent for every month in which they were charged
both an inflated kWh rate and meter fee.
We recently rejected that interpretation in Shepard
Investment Group LLC v. Ormandy, 320 Or App 521, 514
P3d 1125, rev allowed, 370 Or 404 (2022). In that case, a
landlord had violated two recently created provisions of
ORS 90.315(4): ORS 90.315(4)(b)(A), requiring that utility
charges are billed to a tenant in writing, and ORS 90.315
(4)(b)(B), requiring that a landlord provide a tenant with
a written explanation of the manner in which the utility
provider assessed its charges and the manner in which the
landlord allocated those charges among the tenants. Id. at
524-25. The trial court in Shepard Investment Group LLC
also concluded that the violations had been repeated every
month over the course of a year every time the landlord
billed the tenant for utilities absent the required writings.
Id. Citing the remedy provision now numbered as ORS
672 Hathaway v. B & J Property Investments, Inc.
90.315(4)(f), the tenant argued that, because the landlord
had “fail[ed] to comply with paragraph * * * (b)” 12 separate
times, the tenant was entitled to recover “an amount equal
to one month’s periodic rent or twice the amount wrongfully
charged to the tenant, whichever is greater” as a separate
remedy for each of those 12 individual violations. Id. at 524.
The trial court agreed and awarded the tenant an amount
equal to 12 months’ rent or nearly $10,000. Id. at 525.
On the landlord’s appeal, we construed the rem-
edy provision and concluded that the legislature had not
intended for it to provide “one month’s periodic rent or twice
the amount wrongfully charged” as a remedy each time a
landlord “fail[ed] to comply” with the listed requirements.
Id. at 530-31. We noted that the plain language of the pro-
vision does not specify that it applies on a “per violation” or
“per noncompliant billing” basis as the tenant had argued.
Id. at 531. Instead, the provision provides for the greater of
two possible remedies if a tenant establishes that a land-
lord “fails to comply” with any of the listed requirements,
language which plainly does not distinguish between the
number of times a landlord violates the requirements.
Id. at 530-31. However, the provision still provides for an
increased remedy when a tenant is “wrongfully charged” on
a repeated basis if “twice the amount wrongfully charged
to the tenant” is greater than “one month’s periodic rent.”
Id. at 530. Applying that interpretation to the facts, we con-
cluded that the tenant had been “wrongfully charged” $40
each month over 12 months, because each of those monthly
utility charges had failed to comply with ORS 90.315(4)(b).
Id. at 532. Because twice the total amount wrongfully
charged was greater than one month of the tenant’s periodic
rent, the tenant was entitled to “twice the amount wrong-
fully charged” or $960. Id.
In accordance with our decision in Shepard
Investment Group LLC, we agree with BBM that the trial
court erred in granting partial summary judgment to plain-
tiffs on the issue of damages under ORS 90.315(4)(e) (2011)
and conclude that plaintiffs were not entitled to two months’
rent for each month in which BBM violated ORS 90.315(4)(b)
(2011). A tenant is not entitled to “an amount equal to
one month’s periodic rent or twice the amount wrongfully
Cite as 325 Or App 648 (2023) 673
charged to the tenant, whichever is greater” as a sepa-
rate remedy for each individual billing over time that fails
to comply with ORS 90.315(4)(b) (2011). Regardless of the
total number of billings that “fail[ed] to comply” with ORS
90.315(4)(b) (2011), the court should only consider whether
BBM “fail[ed] to comply with paragraph * * * (b),” and, if the
answer is yes, award a tenant “an amount equal to one
month’s periodic rent or twice the amount wrongfully charged
to the tenant, whichever is greater.” ORS 90.315(4)(e) (2011).
In short, the trial court here erred in granting summary
judgment to plaintiffs on the issue of calculating damages
under ORS 90.315(4)(e) (2011).
III. PLAINTIFFS’ RETALIATION CLAIM
AND BBM’S FIFTH AND SIXTH
ASSIGNMENTS OF ERROR
A. Plaintiffs’ Retaliation Claim and BBM’s Fifth Assignment
of Error
Next, we consider BBM’s fifth assignment of error,
in which BBM assigns error to the trial court’s ruling grant-
ing partial summary judgment to plaintiffs on their retali-
ation claim. As relevant here, ORS 90.385 prohibits a land-
lord from retaliating “by increasing rent” after “[t]he tenant
has performed or expressed intent to perform any * * * act
for the purpose of asserting, protecting or invoking the pro-
tection of any right secured to tenants under any federal,
state or local law.” ORS 90.385(1)(f).
The facts relevant to the court’s summary judg-
ment ruling, viewed in the light most favorable to BBM, are
as follows. In June 2013, approximately two months after
plaintiffs filed this action, BBM issued a “30-day Written
Notice of Change of Policies and Practices” to all current
park residents, explaining that on July 29, 2013, BBM
would stop charging tenants a “monthly $10.00 electricity
service charge,” begin charging tenants a kWh electricity
rate that was based on the average kWh rate charged by
the utility for each billing cycle, and increase rent for all
tenants by $20 per month. The notice stated that “[i]t has
recently been brought to our attention that our RV sites are
metered with electro-mechanical meters that consistently
674 Hathaway v. B & J Property Investments, Inc.
read less power used than the PG&E smart meters,” that
BBM had “been losing money on electricity” for that rea-
son, and that the billing changes were intended “to sim-
plify billings, break even on electricity, and keep total rents
down.” (Underscoring in original.) The notice ended by stat-
ing that “[i]t is our hope that these changes will only affect
your monthly billings slightly, if at all.” Berman held three
different meetings to announce the new billings policies to
tenants. At the meetings, Berman explained to the tenants
that the changes were “revenue neutral.”
Explaining the changes in a later deposition, Berman
stated that “attorneys had impact” on his decision to pro-
duce the notice and hold the tenant meetings regarding the
restructured billing practices and rent increase “specifically
right then,” but that “the fact that [he] had been sued for
charging a meter reading fee” had not been “a factor that
went into that decision.” Acknowledging that the billing
changes made some residents’ overall bills increase by “two,
three bucks” a month, Berman stated that “I don’t know any
other way to do it * * * [to] be so far above board and com-
pliant that I’m never having this discussion with [plaintiffs’
attorney] again.” In a later affidavit, Berman added that the
park made the billing changes “because it was attempting
to be more legally compliant in its practices, because it was
engaging in protected settlement discussions, because the
park had legitimate business reasons for the restructuring
(as reflected in the notice to the tenants about the same) and
it was attempting to meet Plaintiffs’ ORCP 32 H demands.”11
Plaintiffs amended their complaint to add an addi-
tional claim for retaliation and moved for partial summary
judgment on the claim, contending that “conduct admitted
to by Defendants—raising rent as a result of the filing of
11
Under ORCP 32 H, potential class action plaintiffs must “[n]otify the
potential defendant of the particular alleged cause of action” and “[d]emand that
such person correct or rectify the alleged wrong” in writing at least 30 days “prior
to the commencement of an action for damages.” In turn, a defendant who shows
that all potential class members have been reasonably identified and notified that
“the defendant will make the appropriate compensation, correction, or remedy of
the alleged wrong,” makes “[s]uch compensation, correction, or remedy” within a
reasonable time, and has or will cease “from engaging in * * * such methods, acts,
or practices alleged to be violative of the rights of potential class members” may
avoid an action for damages. ORCP 32 I.
Cite as 325 Or App 648 (2023) 675
this lawsuit—constitutes unlawful retaliation under ORS
90.385.” Citing Elk Creek Management Co. v. Gilbert, 353 Or
565, 303 P3d 929 (2013), plaintiffs contended that they had
met the requirements of ORS 90.385 and proved that “the
landlord made the decision to act because of the tenant’s pro-
tected activity.” Specifically, plaintiffs pointed to a June 10,
2013 letter from BBM’s attorney to plaintiffs’ counsel during
settlement negotiations and Berman’s deposition testimony
as proof that BBM had admitted that the lawsuit motivated
the rent increase.
In response, BBM argued that plaintiffs had not
established retaliation as a matter of law. First, BBM con-
tended that the statute did not apply at all, because the rent
increase had accompanied decreases in other fees that made
the overall changes “revenue neutral,” and because none of
the current tenants at the time of the rent increase were yet
involved in the litigation—only the Hathaways were named
plaintiffs, they no longer resided at the park, and the court
had yet to certify a class. BBM also argued that plaintiffs’
complaint was not the “but for” cause of the rent increase
and that other factors had motivated the changes.
Additionally, BBM pointed to different settlement
communication letters, this time those dated May 31 and
July 11, 2013, from plaintiffs’ attorneys to BBM’s counsel,
as evidence that plaintiffs had brought their retaliation
claim in bath faith. See ORS 90.130 (“[e]very duty under this
chapter and every act which must be performed as a con-
dition precedent to the exercise of a right or remedy under
this chapter imposes an obligation of good faith in its per-
formance or enforcement”). Specifically, BBM argued that
plaintiffs
“should not be entitled to the right to enforce ORS 90.385
or be entitled to damages under [ORS] 90.375 as a result
of alleged retaliation. Defendants were negotiating with
Plaintiffs in good faith pursuant to ORCP 32 H and 32 I
at or around the time the Park changed its practices.
Additionally, counsel for Plaintiffs assured counsel for
Defendants that Defendant was ‘free to increase rent’
in the present proceeding. In a letter from Counsel to
Plaintiffs dated May 31, 2013, which counsel for Plaintiffs
filed in support of their Motion for Leave to File its Second
676 Hathaway v. B & J Property Investments, Inc.
Amended Complaint to add damages to the proceeding,
and in discussing the meter reading fee being dropped,
counsel stated: ‘My understanding from our discussion
is that this fee will be dropped altogether. Obviously,
defendant is free to increase rent, or, as I read the stat-
ute, disclose and include this charge as an explicit term
in any new leases.’ Additionally, in June 11, 2013, corre-
spondence from counsel for Plaintiffs, counsel for Plaintiffs
stated that they ‘welcome[d] implementation of the cura-
tive steps outlined in your letter.’ (Plaintiffs’ June 11, 2013
correspondence was also previously filed in support of its
Motion for Leave to File its Second Amended Complaint).
In this respect, Plaintiffs through their counsel, acted in
bad faith by encouraging the changes proposed by counsel
for Defendant through settlement negotiations, and even
expressly stated that rent could be raised to address their
legal concerns related to the meter reading fee, and then
proceeded to file a retaliation claim after the park made its
proposed changes.”
(Internal citations omitted.) That argument did not fashion
ORS 90.130 as an affirmative defense, and BBM had not
pleaded ORS 90.130 as an affirmative defenses to the retal-
iation claim at that time.
Lastly, at the same time that BBM invoked settle-
ment letters from plaintiffs’ counsel in its arguments, BBM
moved to strike the settlement letter from BBM’s counsel
that plaintiffs had included and referenced in their motion,
arguing that it was evidence of statements made in com-
promise negotiations that was protected and inadmissible
under OEC 408 to prove BBM’s liability.
After receiving briefing and oral argument, the
trial court made its rulings. First, the court granted defen-
dant’s motion to strike the letter from BBM’s attorneys, con-
cluding that it was inadmissible under OEC 408. The court
then granted plaintiffs’ motion “to establish liability under
ORS 90.385.” The court explained:
“Once the Defendants were no longer able to illegally over-
charge tenants for electricity and meter reading fees, they
chose to instead increase the rent. It is clear that this
action was done in response and because of tenants’ filing
this lawsuit. As a result, this court finds that Defendants
Cite as 325 Or App 648 (2023) 677
did in fact violate ORS 90.385 by retaliating when they
raised rent by $20.”
In granting the motion, the trial court implicitly concluded
that there was no genuine issue as to any material fact and
that plaintiffs were entitled to prevail on the claim as a mat-
ter of law. See ORCP 47 C.
With that background in mind, we summarize the
controlling law on this issue. As relevant here, ORS 90.385
prohibits a landlord from retaliating “by increasing rent”
after the tenant has “made any complaint to the landlord
that is in good faith and related to the tenancy”; “testified
against the landlord in any judicial, administrative, or legis-
lative proceeding”; or “performed or expressed intent to per-
form any other act for the purpose of asserting, protecting
or invoking the protection of any right secured to tenants
under any federal, state or local law.” ORS 90.385(1). There
must be a causal connection between the landlord’s action
and the tenant’s protected activity—specifically, the tenant
must prove that the landlord made the decision to raise rent
because of the tenant’s complaint. Elk Creek Management
Co., 353 Or at 574, 582. The reason for a landlord’s decision
is a question of fact. Id. at 584. Typically, the tenant must
establish that, “but for” the protected activity, the land-
lord would not have made the decision to raise rent. Id. In
the event that multiple factors motivated the decision but
either operating alone would have been sufficient to cause
it, a tenant may also prevail by proving that the tenant’s
protected activity was a “material and substantial factor”
in the landlord’s decision. Id. at 584-85. In neither instance
is the tenant required to prove that the tenant’s protected
activity was the “sole” or “dominant” reason for the land-
lord’s decision. Id. at 585. In other words, the tenant’s pro-
tected activity need only be “a factor that made a difference
in the landlord’s decision.” Id. at 583.
We first address BBM’s renewed argument that
its rent increase was not retaliatory because no current
tenant had asserted protected rights when the rent increase
occurred. We reject that argument. The complaint asserted
claims on behalf of “a Class consisting of * * * [a]ny person
who, at any time during the ten[-]year period preceding the
678 Hathaway v. B & J Property Investments, Inc.
date this lawsuit was filed,” had paid electricity bills from
BBM that had been computed using the kWh rate and meter
fee practices at issue in plaintiffs’ ORS 90.315(4) (2011)
claims. The complaint made clear that a class that included
current tenants intended to pursue class action litigation to
assert its rights under the ORLTA, and by the time of the
rent increase, at least two current tenants had actually par-
ticipated in the action by declaring that BBM’s ORLTA vio-
lations were ongoing. Further, ORS 90.385(5) makes clear
that “a complaint made by another on behalf of a tenant is
considered a complaint by the tenant” for purposes of ORS
90.385. In that context, current tenants had “expressed
intent” to assert their rights.
We are also not persuaded by BBM’s contention that
the rent increase did not violate ORS 90.385 because it was
“revenue neutral.” ORS 90.385 states that “a landlord may
not retaliate” by taking certain delineated actions, including
“increasing rent,” after a tenant asserts its ORLTA rights.
In short, the legislature chose to prohibit a landlord from
responding to tenant complaints by raising rent, without
any exception for rent increases as part of other fee restruc-
turing that potentially also lowers other tenant costs.12
We also reject BBM’s contention that the trial court
erred because “[t]here was an issue of fact on good faith.”
Although plaintiffs did not address this particular argu-
ment, both in the trial court and on appeal, we nevertheless
conclude that it does not provide BBM with a basis for rever-
sal because it relies on a fundamental misunderstanding of
the requirements of ORS 90.130.
As we have said before, the duty of good faith in
ORS 90.130 applies to “every act that is a condition prece-
dent to exercising a right or a remedy under the ORLTA.”
Lopez v. Kilbourne, 307 Or App 301, 309, 477 P3d 14 (2020).
As relevant here, because a tenant must bring a claim as a
condition precedent to recovering a remedy for retaliation
12
We also reject BBM’s contention that the trial court erroneously relied on
its earlier conclusions that BBM’s inflated kWh rate billing and meter fees vio-
lated ORS 90.315(4) (2011) in granting summary judgment to plaintiffs on their
retaliation claim. Having reviewed the trial court’s ruling, we conclude that the
court did not apply an incorrect legal standard or improperly rely on its earlier
rulings in ruling on the retaliation claim.
Cite as 325 Or App 648 (2023) 679
pursuant to ORS 90.385, the tenant is obligated to bring
that claim in good faith. See id.Although the ORLTA defines “good faith” as “hon-
esty in fact in the conduct of the transaction concerned,”
ORS 90.100(19), ORS 90.130 is not so broad as to prohibit
plaintiffs’ alleged conduct at issue here. The Supreme Court
has explained that good faith under the ORLTA has a nar-
rower meaning than the “broader concept of good faith that
is frequently found in both statute and common law.” Eddy
v. Anderson, 366 Or 176, 188, 458 P3d 678 (2020). A tenant
violates the ORLTA’s obligation of good faith with respect
to a claim “only if they acted dishonestly with respect to
the allegation” in the claim, meaning that they alleged a
claim “that they knew to lack merit.” Id. at 189 (“So long as
they subjectively believed that the [claim] had merit, and
so long as they did not knowingly fail to comply with any
prerequisite for asserting their claim, they were entitled to
bring it.”). For example, ORS 90.130 prevented tenants in
an eviction proceeding who “deliberately” avoided personal
service of a termination notice, and who in fact received a
notice that was slipped under their door, from enforcing the
statutory requirement for personal delivery of the notice.
See Stonebrook Hillsboro, L.L.C. v. Flavel, 187 Or App 641,
69 P3d 807, rev den, 335 Or 656 (2003). The duty of good
faith does not function to deny a remedy to a tenant who
subjectively believes that their claim has merit, but who
otherwise engaged in unfair dealing or had “unclean hands”
or a “malicious purpose.” Id.; see also Lopez, 307 Or App at
311 (explaining that ORS 90.130 did not bar tenant who lied
on rental application from prevailing on defense to a later,
unrelated eviction proceeding for nonpayment of rent).
Applying that law to the facts of this case, ORS
90.130 required that plaintiffs bring their retaliation claim
in good faith, or with the subjective belief that the claim has
merit. For sure, several factual scenarios could have sup-
ported an argument that plaintiffs’ retaliation claim lacked
good faith in its enforcement. As in Stonebrook Hillsboro,
L.L.C., plaintiffs could not prevail if they had knowingly
prevented or thwarted BBM’s attempts to comply with ORS
90.385. ORS 90.130 also barred plaintiffs’ recovery if they
subjectively believed their claim lacked merit, such as if
680 Hathaway v. B & J Property Investments, Inc.
they knew that they had never made a protected complaint
or if they knew that BBM had raised rent for a reason unre-
lated to the lawsuit.
None of those circumstances, or any other circum-
stances that would violate ORS 90.130, are present on these
facts. The extent of the record on the issue, viewed in the
light most favorable to BBM, was limited to the following:
In the first letter dated May 31, 2013, plaintiffs’ attorney
welcomed BBM’s cessation of the meter fee and added that
“[o]bviously, defendant is free to increase rent, or, as I read
the statute, disclose and include [the meter reading fee] as
an explicit term in any new leases.
“Regardless, as long as defendant proposes a solution
that complies with the statute and is fair to the class, we
will likely agree to it.”
In the second letter, plaintiffs’ attorney “agree[d] with
defendants’ proposal” to eliminate the meter fee and wel-
comed “cessation of the $10 per month charge,” if approved
by the court, as a part of “implementation of the curative
steps outlined in your [June 10, 2013] letter.”13 At most, that
evidence could support a finding that plaintiffs encouraged
BBM’s violation of ORS 90.385 with an improper motive to
add more claims, and thus more damages, to their recovery.
It does not, however, create an issue of fact as to whether
plaintiffs had a good faith belief in the legitimacy of their
claim. Again, ORS 90.130 is not so broad as to prohibit
recovery by a tenant with unclean hands or malicious pur-
pose, and as in Lopez, BBM has not presented an argument
as to what “precise duty or condition precedent” plaintiffs
were either “performing or enforcing” when they encour-
aged BBM’s retaliatory rent increase in violation of ORS
90.385. 307 Or App at 311. “Without the identification of a
duty or an act that is a condition precedent, the statutory
duty of good faith does not apply.” Id. The ORLTA does not
condition a tenant’s right to bring a claim under ORS 90.385
on a requirement that the tenant not encourage the land-
lord’s violation. Nowhere in the ORLTA are those rights and
13
The reader may recall that BBM successfully blocked admission of the
June 10, 2013 letter from BBM’s attorney. No other evidence from the settlement
negotiations entered the summary judgment record.
Cite as 325 Or App 648 (2023) 681
duties tied together. As a result, we reject BBM’s contention
that a question of fact as to whether plaintiffs had acted
in good faith precluded the trial court’s grant of summary
judgment to plaintiffs on their retaliation claim.
Lastly, BBM contends that an issue of fact as to the
cause of or motivation behind the rent increase precluded
summary judgment. As we explained earlier, a tenant must
prove that the tenant’s protected activity was a factor that
made a difference in the landlord’s decision. A tenant is not
required to prove that the tenant’s protected activity was
the “sole” or “dominant” reason for the landlord’s decision.
Although the reason for a landlord’s decision to
raise rent is generally a question of fact, we agree with
the trial court that, even viewing the summary judgment
record in the light most favorable to BBM and making all
reasonable references in its favor, no objectively reasonable
jury could conclude that plaintiffs’ class-action complaint
was not a factor that made a difference in BBM’s decision
to raise rent. BBM raised rent as part of billing changes
that also eliminated the meter fee and inflated kWh rate
that were the subject of plaintiffs’ claims, changes which
occurred only two months after plaintiffs filed their lawsuit.
Berman stated that “attorneys had impact” on his decision
to make the changes “specifically right then” and opined
during deposition that “I don’t know any other way to do it
* * * [to] be so far above board and compliant that I’m never
having this discussion with [plaintiffs’ attorney] again.”
Perhaps most importantly, Berman also submitted an affi-
davit in which he asserted that the park made the billing
changes “because it was attempting to be more legally com-
pliant in its practices, because it was engaging in protected
settlement discussions,* * * [and because] it was attempting
to meet Plaintiffs’ ORCP 32 H demands.” Even viewed in
the light most favorable to BBM, those statements consti-
tute admissions by BBM and Berman that the class-action
complaint was a factor that made a difference in the park’s
decision to institute the billing changes, one component of
which was a $20 rent increase.
Further, Berman’s singular statement that “the fact
that [he] had been sued for charging a meter reading fee”
682 Hathaway v. B & J Property Investments, Inc.
was not “a factor that went into [his] decision” to raise rent
does not establish a material dispute of fact on causation
sufficient to preclude summary judgment, even viewing the
record in BBM’s favor as we must. In response to plaintiffs’
summary judgment motion, BBM insisted that a number of
purposes motivated the rent increase, including its efforts
to meet plaintiffs’ demands, made pursuant to ORCP 32 H,
that BBM remedy the alleged ORLTA violations raised in
plaintiffs’ complaint. In other words, BBM took the legal
position that it could be motivated by “Plaintiffs’ ORCP 32 H
demands” while also simultaneously not being motivated
by the tenants’ legal action to assert their rights more gen-
erally. But we do not agree that BBM’s motivations can be
parsed in such a way. BBM would not have been motivated
to meet plaintiffs’ ORCP 32 H demands but for plaintiffs’
act of pursuing legal action against BBM in the first place.
Lastly, a plaintiff need not establish that their pro-
tected activity was the sole or dominant cause of the land-
lord’s action. For that reason, BBM could not avoid summary
judgment in plaintiffs’ favor by noting other causes that may
also have motivated the change, such as its asserted “legit-
imate business reasons for the restructuring” and desire to
“to simplify billings, break even on electricity, and keep total
rents down.” Even if those asserted interests could plausi-
bly constitute reasons for a landlord to raise rent as part of
changes to its billing practices, the existence of those other
motivations does not negate BBM’s admission that plain-
tiffs’ ORCP 32 H demands, and therefore plaintiffs’ com-
plaint generally, was a cause of the rent increase decision.
In short, we see no material factual dispute on this record
that plaintiffs’ complaint was a cause of BBM decision to
raise rents, and thus reject BBM’s argument that the trial
court erred in granting summary judgment to plaintiffs on
their retaliation claim for that reason.
B. BBM’s Good Faith Defense and Sixth Assignment of
Error
We next address BBM’s sixth assignment of error,
in which it contends that the trial court legally erred in
striking BBM’s good faith affirmative defense as “insuffi-
cient in substance and therefore frivolous.”
Cite as 325 Or App 648 (2023) 683
Although the record on this issue is somewhat con-
voluted, the relevant procedural facts are that in May 2016,
over a year after BBM first raised its good faith arguments
in opposition to plaintiffs’ motion for summary judgment
on the retaliation claim, and also nearly a year after the
trial court granted that motion and concluded that BBM
“violate[d] ORS 90.385 by retaliating when [it] raised rent
by $20,” BBM, for the first time, pleaded as an affirmative
defense that plaintiff Seaman “failed to act in good faith
in that before she commenced a claim for retaliation, her
lawyers stated that BBM could raise rents to offset for the
additional losses resulting from eliminating a park meter
reading fee and/or developing a different allocation system
to reimburse tenants’ electrical usage.”14 Nearly a year later
in May 2017, plaintiffs moved to strike that defense, argu-
ing that the defense depended on settlement correspondence
that was inadmissible under OEC 408 and that, as a result,
there was “no admissible evidence to support defendant’s
allegation.” Plaintiffs also noted that the court had already
ruled for plaintiffs on the issue of BBM’s liability for retalia-
tion and argued that that ruling rendered the defense moot.
In plaintiffs’ view, BBM’s “time to present its good faith
defense was during the pendency of those motions.”
BBM responded that the settlement correspondence
at issue was admissible and had already been admitted
without objection, waiving plaintiffs’ OEC 408 arguments.
BBM also argued that the motion to strike was untimely,
because it was not filed within 10 days of service of BBM’s
first assertion of the defense. As to plaintiffs’ mootness argu-
ment, BBM contended that its good faith defense had never
been adjudicated or waived and that issues of fact regarding
the assertions underlying the defense still remained.
After briefing and argument on the issue, the trial
court concluded first that plaintiffs’ motion to strike was
14
BBM also asserted good faith as a defense to plaintiffs’ claims under ORS
90.315(4) (2011), specifically alleging that plaintiffs “failed to act in good faith in
that they did not notify BBM that they believed that they were being allegedly
overcharged for electricity or that the park meter reading fees were allegedly a
violation of the [ORLTA].” BBM does not raise arguments on appeal that are spe-
cific to that aspect of their defense, however, and only raises arguments regard-
ing its good faith defense to the retaliation claim. As a result, we only consider
that defense as it relates to plaintiffs’ retaliation claim.
684 Hathaway v. B & J Property Investments, Inc.
untimely. However, the court concluded that defendant’s
good faith defense relied on settlement correspondence that
was inadmissible under OEC 408 and struck the defense
as insufficient and frivolous pursuant to its own authority
under ORCP 21 E(2).
On appeal, BBM assigns error to that ruling, con-
tending that the trial court erred in its applications of ORCP
21 E and OEC 408. In turn, plaintiffs defend the trial court’s
ruling on its merits while also offering that the ruling may
be affirmed on the alternative basis that the defense was
not timely raised because BBM pleaded ORS 90.130 as an
affirmative defense long after the trial court granted plain-
tiffs’ motion for summary judgment on retaliation liability.
In reply, BBM presses that we disregard plaintiffs’ timeli-
ness argument, which it contends was never raised below.
Further, BBM contends, “[e]ven assuming there is a legal
source for plaintiffs’ argument, at best it would give the
court discretion to strike the defense and would not require
it to be stricken as a matter of law.” (Emphasis in original.)
Discretionary questions, BBM asserts, cannot be affirmed
under the “right for the wrong reason” doctrine.
Several points of clarification resolve the parties’
arguments. First, plaintiffs did preserve their argument
that BBM’s good faith affirmative defense was untimely or
moot when they raised that argument as part of their origi-
nal motion to strike the defense. As explained earlier, plain-
tiffs moved to strike BBM’s defense on two rationales—both
that there was no admissible evidence to support the defense
and that the time for litigating BBM’s retaliation liability
had passed—either of which would, if legally correct, sup-
port striking the defense as legally insufficient or frivolous.
Whether a pleading or defense is, in fact, sham, frivolous,
or irrelevant is a question of law, not an issue left to the
discretion of the court. Ross and Ross, 240 Or App 435, 439,
246 P3d 1179 (2011) (distinguishing the legal question of
whether a pleading is sham, frivolous, or irrelevant from
the discretionary decision to strike a matter and preclude
further pleading).
As we recently clarified in Sherertz v. Brownstein
Rask, 314 Or App 331, 341, 498 P3d 850 (2021), rev den, 369
Cite as 325 Or App 648 (2023) 685
Or 338 (2022), the “right for the wrong reason” doctrine is not
implicated when an alternative argument was indeed raised
in the trial court rather than for the first time on appeal. If
“the argument is properly presented again on appeal and
raises a question of law, we may simply resolve it, typically
remanding only if it is necessary for the trial court to make
factual findings from conflicting evidence, exercise discre-
tion, or the like.” Id. Thus, we may consider such an alter-
native argument without first determining whether it satis-
fies the requirements of Outdoor Media Dimensions, Inc. v.
State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (not-
ing additional requirements and discretionary character of
“right for the wrong reason” review).
With those considerations in mind, we conclude that
BBM has not established that a reversible error occurred
here. Even if it constituted legal error for the trial court to
strike the defense as frivolous due to its conclusion that no
admissible evidence could support the defense under OEC
408, any purported error was harmless, because the defense
was also untimely—and therefore insufficient or frivolous—
for the reason that it attempted to relitigate a claim that
had already been resolved by the court. When a party moves
for summary judgment on an issue, “[t]he adverse party has
the burden of producing evidence on any issue raised in the
motion as to which the adverse party would have the bur-
den of persuasion at trial.” ORCP 47 C. Thus, BBM’s time
to litigate plaintiffs’ alleged lack of good faith in bringing
the retaliation claim, and in particular, their time to raise
ORS 90.130 as an affirmative defense to which they would
have had the burden of persuasion at trial, was when plain-
tiffs moved for summary judgment on that claim.15 Indeed,
BBM did litigate plaintiffs’ good faith at that time and the
trial court rejected the argument. For those reasons, BBM’s
sixth assignment of error does not provide a sufficient basis
for reversal, even in the event that any legal error occurred,
and we reject it.
15
Just as we need not decide whether the trial court erred in striking the
defense based on its understanding that no admissible evidence could support
the claim, we also need not evaluate whether ORS 90.130 is more appropriately
characterized as a regular or affirmative defense. Regardless, BBM’s time to lit-
igate its liability for plaintiffs’ retaliation claim was when plaintiffs moved for
summary judgment on that issue.
686 Hathaway v. B & J Property Investments, Inc.
C. Retaliation Damages and BBM’s Eighth Assignment of
Error
Finally, we acknowledge BBM’s eighth assignment
of error, in which it contends that the trial court erred
in granting summary judgment to plaintiffs on the issue
of calculating retaliation damages. Specifically, the trial
court concluded that ORS 90.375, which permits a tenant
who establishes retaliation to recover “an amount up to two
months’ periodic rent or twice the actual damages sustained
by the tenant, whichever is greater,” entitled plaintiffs to
“damages of double rent for each month the retaliatory rates
have been charged.”
BBM first contends that “[t]he trial court erred in
the same manner that is described supra relating to dam-
ages” under ORS 90.315(4)(e) (2011), but provides no further
explanation as to how we should interpret that solitary
statement. Presumably, BBM contends that its arguments
as to ORS 90.315(4)(e) (2011)—that plaintiffs are only enti-
tled to a “one-time” award rather than a separate award for
each individual violation over time—apply equally to ORS
90.375. However, BBM’s arguments as to ORS 90.315(4)(e)
(2011) actually engage with the specific text of that statute.
Its single sentence argument as to ORS 90.375 does not—it
does not account for the varied language defining the viola-
tions at issue, the varied measures of penalties, or the dif-
fering legislative history or case law relevant to those pro-
visions. Thus, because a construction of ORS 90.375 would
differ significantly in its approach and analysis from the
construction of ORS 90.315(4)(e) (2011), we conclude that
BBM’s undifferentiated argument is not sufficiently devel-
oped for our consideration.
BBM also raises the additional argument that the
trial court erred in granting partial summary judgment
to plaintiffs because ORS 90.375 is a discretionary statute
that permits a factfinder to award ‘up to’ or less than two
months’ rent. Specifically, BBM contends that the trial court
“usurped the jury’s role” when it ruled on summary judg-
ment that each retaliation class member was entitled to two
months’ rent as a matter of law. However, the record estab-
lishes that BBM argued for the trial court to “make findings
Cite as 325 Or App 648 (2023) 687
in the present proceeding as a matter of law” and “assess
the actual damages suffered by the tenant,” at which time it
was then “within [the court’s] discretion to award ‘up to two
month’s periodic rent or twice the actual damages sustained
by the tenant, whichever is greater.’ ” (Emphases in origi-
nal.) Due to that record, we conclude that BBM’s additional
argument regarding ORS 90.375 is unpreserved.
IV. CONCLUSION
In summary, the trial court erred (1) in certifying
a 10-year class for plaintiffs’ claims under ORS 90.315(4)
(2011), based on its determination that a discovery rule
applied to ORS 12.125; (2) in granting summary judg-
ment to plaintiffs on the ground that BBM violated ORS
90.315(4) (2011) as a matter of law when it charged tenants
a higher kWh rate for electricity than the electricity utility
had charged BBM; and (3) in granting summary judgment
to plaintiffs on the issue of computing damages under ORS
90.315(4)(e) (2011). The trial court did not err in granting
summary judgment to plaintiffs on the basis that BBM’s
$10 “meter reading fee” violated ORS 90.315(4) (2011), or in
granting summary judgment to plaintiffs on their retalia-
tion claim. Even if the trial court erred in striking BBM’s
good faith defense, any legal error in that regard was harm-
less. Because we reject BBM’s third assignment of error,
the court’s order shifting the costs of class notice to BBM
stands. Likewise, because we do not address BBM’s eighth
assignment of error, the trial court’s ruling granting partial
summary judgment to plaintiffs on the issue of calculating
retaliation damages stands. We do not address the assign-
ments of error raised by B & J and Berman regarding the
piercing trial, as those issues may arise differently, or not at
all, on remand. Finally, we do not address the assignments
of error stemming from the supplemental judgment in this
case, although that judgment is reversed by this ruling as a
matter of law due to our conclusion that several legal errors
underlie the general judgment to which the supplemental
judgment applies. We reverse and remand the trial court
judgments for further proceedings consistent with this
opinion.
Reversed and remanded.