521
Argued and submitted December 2, 2020, reversed and remanded
September 15, 2021
John BIRCHALL
and Mireille Henriette Jeukens,
Plaintiffs-Respondents,
v.
Tyler MILLER and all others,
Defendant-Appellant.
Washington County Circuit Court
17LT09720; A170087
497 P3d 1268
In this forcible entry and detainer case, tenant appeals a general judgment
awarding possession of certain residential real property to landlords after tenant
had vacated the property at issue. Landlords argue that the judgment was necessary for the purpose of determining entitlement to attorney fees. Tenant
maintains that the matter should have been dismissed as moot once he vacated
the premises, and that the trial court erred in denying his motion to dismiss.
Held: Nordbye v. BCRP/GM Ellington, 271 Or App 168,
349 P3d 639 (2015), the
controlling case on this issue, held that, if an underlying claim becomes moot
before the trial court enters judgment on the merits, an interest in attorney fees
cannot revive or maintain the controversy. Therefore, the trial court erred when
it did not dismiss the case as moot after tenant moved from the premises and
there was no longer a live dispute about landlords’ right to possess the property.
Reversed and remanded.
James Lee Fun, Jr., Judge.
Harry D. Ainsworth argued the cause for appellant. Also
on the brief were Geoffrey B. Silverman and The Law Office
of Geoffrey B. Silverman, LLC.
Kevin W. Luby argued the cause for respondents. Also on
the brief was Luby/Daraee Law Group, P.C.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded.
522 Birchall v. Miller
LAGESEN, P. J.
In this forcible entry and detainer (FED) proceeding, tenant appeals a general judgment awarding possession of certain residential real property to landlords. Among
other things, tenant assigns error to the trial court’s denial
of his motion to dismiss the proceeding as moot once he
vacated the premises, thereby restoring possession to landlords. The court denied the motion based on its conclusion
that it retained jurisdiction to resolve the merits of the parties’ underlying dispute over possession for the sole purpose
of determining whether landlords were entitled to attorney fees. Because that ruling is contrary to our decision in
Nordbye v. BCRP/GM Ellington, 271 Or App 168,
349 P3d
639 (2015)—a case that neither party cited to us but that
we are bound to follow—we reverse and remand for the trial
court to dismiss the complaint.
Whether a proceeding is moot is a question of law,
so we review for legal error a trial court’s ruling on a motion
to dismiss on mootness grounds. See Nordbye, 271 Or App
at 174-75. Because a claim’s mootness typically depends on
events occurring after the filing of the complaint, we not only
consider the allegations in the complaint, accepting them as
true for purposes of the motion to dismiss, but also consider
evidence of the subsequent events alleged to have mooted
the case.
Id. To the extent that the court made implicit or
explicit factual findings regarding those subsequent events,
we credit those findings if they are not challenged on appeal.
See
id. at 174 & n 5.
In this instance, the facts relevant to the issue of
mootness are not disputed. In June 2016, plaintiffs entered
into a rental agreement with defendant for a house. The
term of the rental was to run from July 1, 2016 to June 30,
2017. When defendant did not vacate the premises by July 1,
2017, plaintiffs filed this proceeding on July 5, 2017.
Plaintiffs alleged that defendant was “currently in possession of the Property,” and that “[defendant’s] tenancy of the
Property expired on June 30, 2017, and Plaintiffs are entitled to possession of the Property.” For relief, they requested
“judgment for possession of the premises, court costs,
Cite as 314 Or App 521 (2021) 523
disbursements and attorney fees, pursuant to ORS 90.255
and/or 105.137(3).”
Defendant vacated the premises and delivered possession to plaintiffs on July 31, 2017.1 After vacating the
premises, defendant moved for summary judgment, asserting (among other things) that the proceeding should be dismissed as moot because possession of the premises had been
restored to plaintiffs and defendant no longer contested
plaintiffs’ right to possession going forward. The trial court
denied the motion. At trial—which took place more than
10 months after defendant vacated the premises—defendant
again argued on multiple occasions that the court should
dismiss the proceeding as moot. The court again declined to
do so, concluding that plaintiffs were “essentially asking for
a declaration about whether or not the tenancy to the property expired on June 30, 2017, and at that time, Plaintiffs
are entitled to possession of the property.”
On appeal, defendant points out that this is an FED
action, not a declaratory judgment action, which is what the
trial court effectively treated it as. Defendant further notes
that, given the statutorily limited scope of FED proceedings,
the only thing at issue was plaintiffs’ right to possession of
the premises. That, defendant asserts, rendered the action
moot once possession was restored to plaintiffs and defendant no longer claimed any right to possession. Plaintiffs
respond that the trial court remained empowered to determine whether they were entitled to possession as of the
date they filed the proceeding for the purpose of determining whether plaintiffs should be awarded prevailing-party
attorney fees.
We agree with defendant. Although neither side
cited the case to us, our decision in Nordbye disposes of
plaintiffs’ contention that a trial court has jurisdiction to
resolve an otherwise moot merits claim simply for the purpose of awarding prevailing-party attorney fees in connection with that claim.
1
The parties dispute whether the terms of the lease permitted defendant
to stay an extra month. The trial court ultimately ruled in favor of plaintiffs on
that issue. Our conclusion that this case was moot obviates the need to address
defendant’s challenge to that ruling.
524 Birchall v. Miller
In Nordbye, the plaintiff, a qualified low-income
tenant who had been evicted, brought a declaratory judgment
action to enforce certain program requirements of the Low-Income Housing Tax Credit program against the defendant
landlord, which was a participant in that program. Nordbye,
271 Or App at 170. The plaintiff then sought to certify the
action as a class action.
Id. Later, the plaintiff became ineligible for low-income housing and stipulated that she had
no intention to move back to her apartment complex.
Id. at
173. The defendant moved to dismiss on the ground that the
plaintiff’s claims became moot because, under those factual circumstances, a determination of whether the defendant was in compliance with the program requirements
could have no practical effect on the plaintiff’s rights.
Id. at
173-74. The trial court denied the motion.
We reversed. Relevant to the issue before us,
we rejected the plaintiff’s argument that the trial court
retained subject matter jurisdiction to resolve the merits
of the plaintiff’s claims for the sole purpose of determining
entitlement to prevailing-party attorney fees. Id. at 181-84.
Relying largely on our decision in Charles Wiper Inc. v. City
of Eugene,
235 Or App 382,
232 P3d 985 (2010) (Wiper), we
explained that “the trial court lacked jurisdiction and was
required to dismiss the case after plaintiff’s claims became
moot as to the declaratory and injunctive relief, because
the court had not entered a judgment in plaintiff’s favor”
at that time.
Id. We explained further that, “[w]hen plaintiff’s claims for declaratory and injunctive relief became
moot, the trial court was foreclosed” from entering judgment in the plaintiff’s favor on those claims.
Id. Because
the case became moot before the plaintiff had prevailed on
her claims, the plaintiff’s potential claim for attorney fees
in the event that she prevailed “could not prevent the case
from becoming moot.” Nordbye,
271 Or App at 183; see also
Wiper,
235 Or App at 390 (explaining that, once underlying
claim becomes moot, “subsequent attorney fee award did not
revive a controversy that had already become moot by the
time the circuit court entered judgment on the merits”).
As a procedural matter, this case cannot be distinguished in any persuasive way from Nordbye. Plaintiffs’
claim, as alleged in their complaint, was for possession of
Cite as 314 Or App 521 (2021) 525
the premises. In particular, consistent with the narrow
scope of an FED proceeding, they requested entry of judgment for possession of the premises. See Bunch v. Pearson,
186 Or App 138, 141-42,
62 P3d 878, rev den,
335 Or 422
(2003) (“Under ORS 105.105 to 105.168, the issue that is
to be decided in FED cases is entitlement to possession.”
(Footnote omitted.)). Once possession was restored to them,
and defendant no longer claimed any right to possession, the
parties’ dispute over possession became moot and the trial
court no longer had jurisdiction to enter a judgment in plaintiffs’ favor on that claim. That is because a judicial determination that landlords were entitled to possession could have
no practical effect on plaintiffs’ rights once plaintiffs had
possession, apart from establishing an entitlement to attorney fees as the prevailing party on the claim of possession.2
Just as was the case in Nordbye, because plaintiffs’ claim
for possession of the premises became moot before they prevailed on it, their potential claim for prevailing-party based
attorney fees did not prevent the case from going moot.3
Opposing this result, plaintiffs argue that several of our cases have held to the contrary. None of those
cases, however, stand for the proposition that a court may
retain jurisdiction of an otherwise moot claim based on the
2
Plaintiffs did not seek any other remedy in connection with their claim for
possession, nor could they have done so within the narrow confines of an FED
proceeding. Bunch, 186 Or App at 142 (only remedy available in an FED action
is possession of premises); see Bunch v. Lowry,
313 Or App 398, 399,
496 P3d 660
(2021) (discussing limited scope of FED action). In other words, contrary to the
trial court’s perspective, plaintiffs did not seek a declaration of entitlement to
possession as of the date of the filing of the complaint. Beyond that, plaintiffs
have not demonstrated that declaratory relief is an available remedy in an FED
proceeding, and we have located no authority for that proposition. Class v. Carter,
293 Or 147, 151,
645 P2d 536 (1982) (in an FED proceeding, “[t]he judgment is for
restitution of the premises and nothing more”). If plaintiffs desired declaratory
relief, their recourse was to file an action for a declaratory judgment.
3
Plaintiffs originally pleaded that they were entitled to fees under ORS
90.255, which allows for an award of attorney fees to the prevailing party in an
action under ORS chapter 90. They later amended their complaint to allege an
entitlement to fees under the rental agreement, which also made fees contingent
on prevailing-party status. Were entitlement to fees dependent on a statute or
agreement authorizing fees under a different theory, the analysis might be different. In other words, our holding in this case is limited to the situation addressed
in Nordbye, involving a court’s authority to adjudicate an otherwise moot claim
simply for the purpose of determining who, in the absence of mootness, would
have been the prevailing party for purposes of a prevailing-party attorney fee
award.
526 Birchall v. Miller
contention that the plaintiff would be entitled to attorney
fees if the claim had not gone moot and the plaintiff had
prevailed.
The first case on which plaintiffs rely is Brennan v.
La Tourelle Apartments, 184 Or App 235,
56 P3d 423 (2002).
In that case, which was an action for the return of personal
property, the trial court dismissed the case as moot after
the plaintiff recovered the property from the defendant.
Brennan,
184 Or App at 239-40. The court declined to designate either party as the prevailing party or award attorney
fees, apparently believing the whole dispute to be moot. See
id. at 241-42. Although we upheld the court’s determination of mootness, we concluded that the court erred when
it did not designate defendant as the prevailing party for
obtaining the dismissal.
Id. at 244. We remanded so that
the court could determine whether to exercise its discretion
to award attorney fees to the defendant as the prevailing
party.
Id. at 245. We did not hold that the court retained
jurisdiction to resolve the plaintiff’s otherwise moot claim
for possession simply to assess whether the plaintiff would
have prevailed and been entitled to attorney fees if the
case had not gone moot.
Id. at 244-45. Rather, we held that
the court was required to determine who prevailed based
on the fact that the case properly was dismissed as moot.
Id. at 245. In other words, Brennan stands for the proposition
that, upon dismissing a proceeding as moot, a court retains
jurisdiction to determine what party qualifies as the prevailing party based on the dismissal and, further, to award
prevailing-party attorney fees where a statute or agreement
authorizes an award of fees to the prevailing party.
The second case on which plaintiffs rely, Pacific
N. W. Dev. Corp. v. Holloway, 274 Or 367,
546 P2d 1063
(1976), also presents a scenario different than the one here.
In that case, also an FED, the district court awarded possession of the premises and attorney fees and costs to the defendant tenants.
Id. at 369. The plaintiff landlord appealed.
Id. During the pendency of the appeal, the defendants
relinquished the premises to the plaintiff and argued that
doing so mooted the appeal.
Id. at 369-70. Rejecting that
contention, the Supreme Court held that the award of attorney fees meant that the appeal was not moot and that the
Cite as
314 Or App 521 (2021) 527
circuit court retained appellate jurisdiction to review the
correctness of the judgment on which the award of fees was
predicated. Id. at 370-71. That is an entirely different scenario. As we explained when distinguishing a similar case
in Nordbye, at issue in Holloway “was whether, under the
circumstances, [the appellate review court] had jurisdiction
to review a trial court judgment that had been entered when
the trial court had subject matter jurisdiction.” Nordbye,
271 Or App at 184. By contrast, in this case as was true in
Nordbye, “the problem is that the trial court had not entered
a judgment on the merits when [plaintiffs’] claims became
moot and, accordingly, the trial court lacked jurisdiction
to enter such a judgment.”
Id. (emphasis in original). And,
because the trial court lacked jurisdiction to enter judgment on the merits in favor of the plaintiffs on a moot claim,
the plaintiffs “could not become entitled to an award of
prevailing-party attorney fees.”
Id.
The third and final case on which plaintiffs rely is
Edwards v. Fenn, 308 Or 129,
775 P2d 1375 (1989). In that
case, after the landlord filed an FED action, the tenants disputed that the landlord was entitled to possession, filed an
answer and affirmative defenses, and counterclaimed for
damages or injunctive relief, contending that the landlord
was acting in breach of the rental agreement.
Id. at 131-32.
After the defendants vacated the premises, the trial court
struck the counterclaim, declared the answer and affirmative defense to be moot, and entered judgment awarding restitution of the premises and attorney fees to the landlord.
Id.
The Supreme Court reversed and remanded. It held
that the tenants had the right to pursue their counterclaim
and the trial court erred by striking it. Id. at 133-34. It held
further that the court erred by awarding attorney fees to
the landlord without ever having determined whether the
landlord had a right to possession, something that—unlike
the case here—the tenants continued to dispute even after
moving out.4
Id. at 132-33. Summing up its conclusions,
the court explained that (1) the trial court could not award
4
It is not clear from the facts of Edwards whether, in disputing the landlord’s
right of possession, the tenants were seeking to move back in or, instead, were
just seeking related damages on their counterclaim.
528 Birchall v. Miller
attorney fees without determining which party had the
right to possess the premises and that the court erred by
not doing so; and (2) the tenants had a right to pursue their
counterclaim in the FED proceeding because the particular counterclaim was one that was statutorily authorized.
Id. at 134.
Although the conclusion is not free from doubt, we
do not understand Edwards to hold that a court may resolve
and enter judgment on an otherwise moot merits dispute
simply for the purpose of awarding prevailing-party attorney fees. That is because the court was not called upon to
address that question in Edwards. Instead, the explicit
error was that the trial court awarded attorney fees to the
landlord without ever determining that the landlord was
entitled to prevail on the issue of the right-of-possession,
and without addressing the tenants’ answer, affirmative
defenses, and counterclaim contesting the landlord’s right
of possession, even though the tenants continued to dispute
the landlord’s right of possession even after moving out.
Id. at 132 (explaining that the tenants did not concede that
the landlord had right of possession through act of moving
out). As a result, because it did not expressly address the
question, we do not read it to stand for the proposition—
contrary to our decision in Nordbye—that a trial court
retains jurisdiction to resolve an otherwise moot dispute
about the right to possession in an FED proceeding simply
for the purpose of ascertaining who would be entitled to
attorney fees if the dispute had not gone moot before it could
be resolved on its merits.
In sum, the trial court erred when it did not dismiss
the case as moot after defendant moved from the premises
and there was no longer a live dispute about plaintiffs’ right
to possess them. We therefore reverse and remand for dismissal of the complaint.
Reversed and remanded.
