514 P.3d 1125
Or. Ct. App.2022Background
- Tenant Ormandy leased an apartment from Shepard Investment Group and was charged a $40 monthly flat utility fee (water/sewer/garbage) beginning 2013.
- In 2019 tenant failed to pay November rent; landlord served termination and filed eviction; tenant counterclaimed under ORS 90.315(4)(f) alleging landlord violated ORS 90.315(4)(b) billing/disclosure rules for each of 12 months prior.
- Trial court found 12 noncompliant monthly utility billings and awarded tenant one month’s rent for each violation, totaling $9,050; after offsets tenant received a judgment and fees.
- Landlord appealed, arguing ORS 90.315(4)(f) does not authorize a per-billing statutory penalty; tenant argued each noncompliant billing is a separate failure meriting the statutory measure each time.
- The court interpreted ORS 90.315(4)(f), held the statute does not mandate per-billing awards, and remanded with instructions that tenant recover the greater of one month’s periodic rent or twice the total amount wrongfully charged for the alleged period.
Issues
| Issue | Plaintiff's Argument (Shepard) | Defendant's Argument (Ormandy) | Held |
|---|---|---|---|
| Whether ORS 90.315(4)(f) authorizes a damages award for each noncompliant billing (per-violation) | Statute is not a “per violation” penalty; remedy applies once for the course of noncompliance | Each noncompliant monthly billing is a separate “failure to comply” and entitles tenant to the statutory measure per billing | Not per-billing; tenant may recover one month’s periodic rent or twice the total amount wrongfully charged for the period, whichever is greater |
| What “wrongfully charged” means under ORS 90.315(4)(f) | (Implicit) Damage measure should not multiply per bill; focus on statutory language | A wrongful charge occurs whenever a landlord bills without required disclosures/attachments | “Wrongfully charged” means a charge levied without complying with ORS 90.315(4)(a)–(d); multiple wrongful charges can be aggregated for the twice-the-amount measure |
| Effect of alleged procedural errors ("nail and mail" termination notice) | Service/notice rulings could affect eviction relief | Tenant argued those errors were immaterial because statutory damages offset rent owed | Any error on notice was harmless here because tenant’s statutory recovery exceeded the rent owed; landlord would not have obtained possession |
Key Cases Cited
- Lopez v. Kilbourne, 307 Or. App. 301 (2020) (standard of review for legal error)
- State v. Gaines, 346 Or. 160 (2009) (statutory interpretation methodology: text and context)
- Elk Creek Mgmt. Co. v. Gilbert, 353 Or. 565 (2013) (court’s duty to identify correct statutory interpretation)
- Eddy v. Anderson, 366 Or. 176 (2020) (history/context of ORLTA and its amendments)
- Timmermann v. Herman, 291 Or. App. 547 (2018) (possession judgment when no rent remains due)