51 Trial Lawyer • Fall 2023 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT Damages payable under ORS 90.315(4) (f) by a landlord to a tenant, following the landlord’s failure to comply with statutory utility billing requirements, are calculated by aggregating the value of the utilities wrongfully billed, doubling that figure, and then comparing it against the tenant’s monthly periodic rent and awarding to the tenant the larger of those two sums. Shepard Inv. Group LLC v. Ormandy, 371 Or 285 (2023); Larry, J. The tenant was represented by Matthew Shepard. Kristen Williams filed an amicus brief on behalf of OTLA. The tenant rented a residential unit in the landlord’s apartment complex. In 2013, the landlord began charging residents, including the tenant, a monthly $40 flat fee for several utilities, including water, sewer and garbage services. In November 2019, the tenant defaulted on that month’s rent charges, causing the landlord to issue an eviction notice and file a forcible entry and detainer action. The tenant counterclaimed, alleging that the landlord had violated four statutory utility billing requirements over the previous year, including the failure to timely bill the tenant in writing for each month’s utility charges and to provide the tenant with any written explanation of utility pass-through charges. The trial court ruled the landlord had violated those statutory requirements 12 times, once each month over the course of the one-year statute of limitations period. The court then awarded the tenant $9,050 in damages, which amounted to one month of periodic rent for each violation, under ORS 90.315(4)(f), which requires an award that is the greater of “twice the amount wrongfully charged” or one month’s periodic rent. The landlord appealed, and the Court of Appeals reversed, holding that the tenant was not entitled to a calculation that included an amount of periodic rent for each of the 12 months within the year. Instead, the court assessed the appropriate statutory damages based on “twice the amount wrongfully charged” to be only $960 ($480 for the billed utilities at $40 per month for 12 months, then doubled). The Supreme Court affirmed the Court of Appeals. The court examined the text, context and legislative history of ORS 90.315(4)(f) and explained that damages under ORS 90.315(4)(f) are awarded when a landlord “fails to comply” with identified statutory requirements — which by its terms, is not limited to discrete failures. Ongoing failures to comply are included. The court reasoned that the phrase “amount wrongfully charged” is properly understood as an aggregate term, encompassing both discrete and ongoing landlord violations. The court added that reading that term as an aggregate one harmonized it with a related statutory damages provision. Applying that construction to the facts, the court concluded that the trial court had erred when it awarded the See Sheets 52
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