49 Trial Lawyer • Summer 2023 in 2013 are residents of the Salem RV Park. The plaintiff class alleged claims against the park’s manager, defendant Better Business Management, Inc. (BBM); the land owner, defendant B & J Property Investments (B & J); and the owner/president of both of those corporations, defendant William Berman. The plaintiffs alleged claims arising from the park’s utility billing practices in violation of the Oregon Landlord Tenant Act (ORLTA). Specifically, the plaintiffs alleged that defendants (1) charged residents a higher kilowatt-hour rate than was being billed by PGE, and (2) charged an impermissible monthly “meter fee,” in violation of ORS 90.315(4) (2011). Those claims included a retaliation claim under ORS 90.385, alleging that the defendants impermissibly raised their rent responsive to the filing of this lawsuit. In 2017, after granting partial summary judgments on most of the issues litigated, the court found BBM liable to plaintiffs and awarded them $5 million in damages. The next phase of the trial involved determining whether to pierce the corporate veil to permit recovery from defendants B & J and Berman. On appeal, BBM made nine assignments of error and defendants B & J and Berman made seven. The Court of Appeals first concluded that the trial court erred in certifying a ten-year class period for plaintiff’s claims. Under the pertinent statute of limitation at ORS 12.125, the one-year limitation period began to run when the billing violations occurred and was not extended by the discovery rule under ORS 12.010. The court considered the legislative history of ORLTA statute of limitation and concluded that, when enacted, the legislature neither intended for the statute to be codified in ORS chapter 12 nor subject to ORS 12.010. The court next concluded that the trial court erred in granting the plaintiffs’ summary judgment on their ORS 90.315(4)(e) (2011) claim alleging a higher kilowatt-hour rate charge for electricity, but not the claim alleging an impermissible “meter fee.” Under ORS 90.315(4) (2011), landlords may not impose an upcharge to tenants for their use of a utility. The Court of Appeals concluded that the plaintiffs did not establish as a matter of law that the defendants’ flat fee kilowatt-hour rate charge was higher than the rates charged by PGE. However, the “meter fee” defendants’ charged effectively to pay for its own accounting and billing tasks did not constitute a permissible “cost of the utility or service as billed to the landlord by the provider” under the ORLTA statute. The Court of Appeals also concluded the trial court erred in granting the plaintiffs’ summary judgment on the issue of damages under the statute. For violations of ORS 90.315(4), the statute entitles tenants to seek damages “equal to one month's periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.” The Court of Appeals concluded the trial court erroneously awarded one month’s rent for each specific and repeated violation. As construed in a prior case, the statute requires a determination of whether the defendant landlord generally failed to comply with its requirements, and thereafter it awards the one-time remedy of the greater of one month’s rent or the entirety of the amounts wrongfully charged. The Court of Appeals next concluded that the trial court properly granted the plaintiffs’ partial summary judgment motion on their retaliation claim. Under ORS 90.385, landlords may not retaliate by increasing rent after a tenant “has performed or expressed intent to perform any * * * act for the purpose of asserting, protecting or invoking the protection of any right secured to tenants under any federal, state or local law.” Two months after the tenants filed this action, BBM notified tenants that it would stop charging the “meter fee,” start charging a kilowatt-hour electricity rate based on the average monthly rate charged by PGE, and raise each tenant’s rent by $20 per month. BBM defended the rent increase as part of a “revenue neutral” process and the restructuring of charges as an attempt to be more legally compliant and the subject of protected settlement discussions with the plaintiffs’ lawyers. The Court of Appeals characterized those assertions as admissions that BBM increased rent responsive to the plaintiffs “invoking the protection[s] of * * * state law.” Accordingly, the court determined there was no material factual dispute over the rent increase being retaliatory within the meaning of ORS 90.385. The court declined to consider BBM’s underdeveloped and unpreserved arguments against the trial court’s award of retaliation damages in the amount of “double rent for each month the retaliatory rates ha[d] been charged” pursuant to ORS 90.375. It further declined to address remaining arguments as either See Sheets 50 Your client has a story to tell. Hire a communication professional to help tell it.
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