Gail Neidhart v. Adrianne Page

Defendant, who rented a room in a house owned by

plaintiff, appeals from a judgment in a Forcible Entry and

Detainer (FED) proceeding that awarded possession of the

rented premises and $2,201 in restitution for unpaid rent to

plaintiff. Defendant assigns error to the trial court's denial

of her motion to dismiss the proceeding and to the trial

court's decision not to offset a prior judgment that defendant

had obtained against plaintiff against the restitution

award. We affirm.

The facts pertinent to the issues on appeal are not

disputed. Defendant rented a room in a house owned by

plaintiff in 2008. Defendant's monthly rent under the rental

agreement was $355, with rent due "monthly in advance

on the 4th day of each and every month.” In 2011, conflicts

developed between the parties as to their respective obligations

under the rental agreement. As a result of those

conflicts, defendant tendered less than the full amount of

rent due under the rental agreement in February 2011;

plaintiff declined to accept the tender. See ORS 90.417(1)

(providing that "[a] landlord may refuse to accept a rent

tender that is for less than the full amount of rent owed

or that is untimely”). The next month, March 2011, defendant

tendered a rent payment of $355; plaintiff accepted

that payment. Each month thereafter, through the rental

period starting in October 2011, defendant either tendered

less than the amount of rent due1 or tendered no rent at

all. Plaintiff declined to accept any partial payments of rent;

as a result, defendant made no rent payments after March

2011.

After defendant failed to pay the rent due on October 4,

2011, plaintiff notified defendant by letter that plaintiff

would terminate defendant's tenancy for nonpayment of

rent and seek possession of the premises in the manner

1 In June 2011, as a result of a separate court case between plaintiff and

defendant, defendant's rent was reduced. From that date forward, defendant

treated the reduced amount as the amount of rent owed under the parties' rental

agreement. Even taking into account that reduction in defendant's monthly rent

obligation, it is undisputed that for any given month from April 2011 through

October 2011, defendant did not tender the full amount of rent that she owed for

that particular month.

Cite as 268 Or App 643 (2015) 645

authorized by ORS 90.394.2 In accordance with the requirements

of ORS 90.394, the letter stated that defendant owed

a total of $2,201 in unpaid rent for the period extending

from February 2011 through October 2011, excluding March

2011, and informed defendant that she had 72 hours in which

to pay that amount in order to cure the nonpayment of rent.

Defendant did not tender the payment of any amount

of rent within the 72-hour period, and plaintiff initiated

this FED proceeding to obtain possession of the premises.

At the FED trial, defendant moved to dismiss. Defendant

argued that plaintiff had accepted a "partial payment” of

the February rent within the meaning of ORS 90.417(4)3

2 ORS 90.394 provides:

"The landlord may terminate the rental agreement for nonpayment of

rent and take possession as provided in ORS 105.105 to 105.168, as follows:

"(1) When the tenancy is a week-to-week tenancy, by delivering to the

tenant at least 72 hours' written notice of nonpayment and the landlord's

intention to terminate the rental agreement if the rent is not paid within that

period. The landlord shall give this notice no sooner than on the fifth day of

the rental period, including the first day the rent is due.

"(2) For all tenancies other than week-to-week tenancies, by delivering

to the tenant:

"(a) At least 72 hours' written notice of nonpayment and the landlord's

intention to terminate the rental agreement if the rent is not paid within that

period. The landlord shall give this notice no sooner than on the eighth day of

the rental period, including the first day the rent is due; or

"(b) At least 144 hours' written notice of nonpayment and the landlord's

intention to terminate the rental agreement if the rent is not paid within that

period. The landlord shall give this notice no sooner than on the fifth day of

the rental period, including the first day the rent is due.

"(3) The notice described in this section must also specify the amount of

rent that must be paid and the date and time by which the tenant must pay

the rent to cure the nonpayment of rent.

"(4) Payment by a tenant who has received a notice under this section is

timely if mailed to the landlord within the period of the notice unless:

"(a) The notice is served on the tenant:

"(A) By personal delivery as provided in ORS 90.155(1)(a); or

"(B) By first class mail and attachment as provided in ORS 90.155(1)(c);

"(b) A written rental agreement and the notice expressly state that payment

is to be made at a specified location that is either on the premises or at

a place where the tenant has made all previous rent payments in person; and

"(c) The place so specified is available to the tenant for payment throughout

the period of the notice.”

3 ORS 90.417(4) states, in relevant part, "The acceptance of a partial

payment of rent waives the right of the landlord to terminate the tenant's rental

agreement under ORS 90.394 for nonpayment of rent * * *.”

646 Neidhart v. Page

when plaintiff accepted defendant's payment of the March

rent and had, consequently, waived the right to terminate

the tenancy based on defendant's nonpayment of the

February rent. Defendant further asserted that dismissal

was required as a result of plaintiff's alleged waiver of the

right to terminate the tenancy based on the nonpayment of

the February rent.

The trial court rejected that argument and ultimately

found that plaintiff was entitled to the premises.

The court entered judgment awarding possession of the

premises and $2,201 in restitution to plaintiff. In so doing,

the trial court rejected defendant's request to offset against

the restitution award the amount of a money judgment that

defendant had obtained against plaintiff in a separate matter.

The court noted that such an offset might be appropriate

if the parties stipulated to it, but otherwise concluded

that the offset was not required, in light of the fact that the

judgments arose from separate matters.

On appeal, defendant first renews her argument

that the trial court was required to dismiss the proceeding

in the light of the "invalid” notice of intent to terminate the

tenancy. She again asserts that plaintiff accepted a "partial

payment of rent” under ORS 90.417(4) in accepting rent

for March 2011 because, at that point in time, defendant

owed two months' rent and defendant paid only one month's

rent. Defendant contends further that plaintiff's acceptance

of that "partial payment of rent” "waiv[ed] the right

of the landlord to terminate the tenant's rental agreement

under ORS 90.394 for nonpayment of rent,” ORS 90.417(4),

and that defendant is entitled to dismissal of this case as a

result. In response, plaintiff asserts that defendant's March

2011 tender was not "a partial payment of rent” within the

meaning of ORS 90.417(4), and, therefore, plaintiff did not

waive the right to terminate defendant's tenancy based on

her failure to pay rent in February 2011.

We need not resolve the parties' dispute as to

whether defendant's payment of the rent in March 2011 constituted

a "partial payment of rent” within the meaning of

ORS 90.417(4) and, therefore, a waiver of plaintiff's right

to terminate for failure to pay the February rent. Even if

Cite as 268 Or App 643 (2015) 647

defendant's interpretation of that statute is correct, defendant

has not presented a sufficiently developed argument

as to why that interpretation would entitle defendant to dismissal

under the circumstances of this case. Regardless of

any waiver of the right to terminate the tenancy for nonpayment

of rent in March 2011, plaintiff did not attempt

to terminate the tenancy for nonpayment of rent at that

time. Instead, plaintiff waited until October 2011 to terminate

the tenancy for nonpayment of rent. At that point in

time, defendant had not paid rent for seven months, and it is

undisputed both that plaintiff did nothing to waive the right

to terminate for nonpayment of rent based on defendant's

nonpayment of rent from April through October, and that

defendant made no effort to cure that nonpayment of rent

within 72 hours of receiving the notice of intent to terminate

the tenancy. That is, even if plaintiff gave up the right to

terminate for nonpayment of rent in March 2011, it is undisputed

that plaintiff did not give up the right to terminate

for nonpayment of rent based on subsequent failures to pay

rent. See Reach Community Development v. Stanley, 248 Or

App 495, 500-01, 274 P3d 211 (2012) (landlord was entitled

to terminate tenancy where tenant failed to pay all accrued

rent within 72 hours of receiving notice under ORS 90.394).

As noted, defendant does not squarely address in

her brief why she would be entitled to dismissal if she is

correct that plaintiff's acceptance of the March 2011 rent

effected a waiver of plaintiff's right to terminate for nonpayment

of rent at that point in time. Instead, defendant's

argument on the point consists of a single sentence: "A termination

notice is defective if it demands too much money.”

But defendant has provided us with no developed argument

as to why the notice in this case demanded "too much

money”4 or as to why that defect would compel dismissal

4 Even if plaintiff waived the right to terminate the tenancy based on the

nonpayment of February rent when she accepted the rent payment in March,

by statute, defendant continued to owe plaintiff for that rent: "Notwithstanding

any acceptance of a partial payment of rent under subsection (4) of this section,

the tenant continues to owe the landlord the unpaid balance of the rent.” ORS

90.417(6). Because defendant continued to owe that amount to plaintiff, it is

not obvious that it was impermissible for plaintiff to include that amount in the

notice, once defendant's subsequent defaults gave plaintiff new grounds to terminate

the tenancy. We do not resolve the issue, because the parties have not

sufficiently addressed it.

648 Neidhart v. Page

of this proceeding under the circumstances present here.

Absent a developed argument as to why dismissal would be

required if defendant's interpretation of ORS 90.417 is correct,

defendant has not demonstrated that the trial court

committed reversible error by denying her motion to dismiss.

See Beall Transport Equipment Co. v. Southern Pacific, 186

Or App 696, 700 n 2, 64 P3d 1193, adh'd to on recons, 187 Or

App 472, 68 P3d 259 (2003) ("Nor is it our proper function

to make or develop a party's argument when that party has

not endeavored to do so itself.”).

Defendant next asserts that the trial court erred

when it declined to offset the amount of the judgment that

she had obtained against plaintiff in the separate case

against the amount of the restitution award in this case.

However, whether to offset the competing judgments was a

discretionary call for the trial court, and there is nothing

in this record to suggest that the trial court's decision not

to offset the judgments represented an abuse of discretion.

Ketcham v. Selles, 96 Or App 121, 124, 772 P2d 419 (1989)

("[O]ffsetting one judgment against another is not a matter

of right[.]”).

Affirmed