No. 383 April 30, 2025 231
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Ankush MEHTA,
Plaintiff-Appellant,
v.
Brian CARSON,
Ellery Hirsch, and all other occupants of 2122 2nd Avenue,
Gold Hill, Oregon 97525,
Defendants-Respondents.
Jackson County Circuit Court
23LT14485; A182823
Benjamin M. Bloom, Judge. (General Judgment November
16, 2023)
Charles G. Kochlacs, Judge. (Supplemental Judgments
January 25, 2024, and January 30, 2024)
Argued and submitted on December 20, 2024.
Sean P. Tipton argued the cause for appellant. Also on
the brief was Frohnmayer, Deatherage, Jamieson, Moore,
Armosino & McGovern, PC.
Cole H. Downey argued the cause for respondent Ellery
Hirsch. Also on the brief was Downey Law Practice LLC.
Matthew A. Goldberg, Nicole C. Gossett-Roxbury and
Harris Sliwoski LLP filed the brief for respondent Brian
Carson.
Before Ortega, Presiding Judge, Egan, Judge, and
Hellman, Judge.*
HELLMAN, J.
Reversed.
______________
*
Egan, Judge vice Mooney, Senior Judge
232 Mehta v. Carson
Cite as 340 Or App 231 (2025) 233
HELLMAN, J.
Plaintiff appeals two supplemental judgments
awarding attorney fees and costs to defendants. Plaintiff
filed an “amended eviction complaint” against defendants,
who had possession of a residential home owned by plaintiff. The trial court ruled that plaintiff’s action was brought
under the “squatter” provision of the Oregon Residential
Landlord Tenant Act (ORLTA), ORS chapter 90. It dismissed the amended complaint and awarded attorney fees
and costs to defendants under ORS 90.255. On appeal,
plaintiff does not challenge the dismissal but contends that
the court erred in awarding attorney fees because the proceeding did not “aris[e] under” ORS chapter 90, as required
by ORS 90.255. As explained below, we conclude that an
action brought under the squatter provision does not arise
under ORS chapter 90. Therefore, the court’s determination
that plaintiff’s complaint was brought under that provision
precluded it from awarding attorney fees under ORS 90.255.
Accordingly, we reverse.
Plaintiff filed a “Residential Eviction Complaint”
against defendants, Carson and Hirsch, alleging that they
were in possession of real property that plaintiff owned.
Before either defendant filed a response, plaintiff filed an
“Amended Eviction Complaint.” The amended complaint
maintained that defendants were in possession of plaintiff’s
real property but differed from the original complaint in
a number of ways, including that it stated in the header:
“Tenancy not covered by ORS chapter 90.” The amended
complaint further stated:
“There is no rental agreement between Plaintiff and
Defendants. Defendants have never paid and have never
been obligated to pay rent to occupy the Premises.
“On or about August 1, 2023, Plaintiff, by and through
his attorneys, gave Defendants a thirty-day notice to
vacate the Premises. A copy of the Notice is attached to
this Complaint as Exhibit ‘1’.
“…
234 Mehta v. Carson
“Chapter 90 is inapplicable under ORS 90.110(5) as
Defendants are ‘squatters’ as that term is defined by ORS
90.100(44).”1
Both defendants filed answers alleging affirmative
defenses, including that “no landlord tenant relationship”
existed between the parties. Specifically, defendant Hirsch
argued that in “bringing an action where no landlord tenant
relationship exists, and there has been no forcible entry or
unlawful holding by force, the proper legal vehicle for an
action to remove an individual from a property would be an
ejectment under ORS 105.005.” Defendants asked the court
to dismiss the complaint and award attorney fees.
Plaintiff filed a motion requesting leave to amend
the amended complaint and seeking to postpone trial.
Plaintiff’s motion alleged that the amended complaint was
filed “pursuant to ORS 105.126 (form of complaint if chapter
90 does not apply)” but acknowledged that the claim “should
be brought as an ejectment pursuant to ORS 105.005-
105.080.” The court denied plaintiff’s motion to amend the
amended complaint and, at a motion hearing, dismissed
the amended complaint. The court issued an opinion letter
awarding attorney fees to defendants:
“This was a Residential Landlord and Tenant action
commenced by Plaintiff. While the complaint was amended
to indicate there was no landlord tenant relationship,
Plaintiff’s amended complaint is still brought under ORS
90, the ‘squatter’ provision, ORS 90.100(44). Defendant is
the prevailing party. The issue arose under ORS chapter
90. Therefore, reasonable attorney fees are appropriate
under ORS 90.255 and the court will consider ORCP 68
statements.”
On appeal, plaintiff does not challenge the court’s
dismissal of the amended complaint or the court’s exercise
of discretion to deny his motion to amend the amended complaint. He argues only that the court erred in awarding
attorney fees to defendants under ORS 90.255. Plaintiff first
argues that the amended complaint superseded his original
complaint and that the amended complaint explicitly stated
1
Although the substance has not changed, the definition of “squatter” has
since been renumbered to ORS 90.100(47).
Cite as 340 Or App 231 (2025) 235
that ORS chapter 90 did not apply. Second, plaintiff contends that the trial court’s determination that the amended
complaint was brought under ORS chapter 90’s squatter
provision is legally incorrect because that provision is not
governed by ORS chapter 90.
Defendants argue that plaintiff’s initial complaint
was brought under ORS chapter 90 and that, even when
plaintiff amended the complaint, it comported with the procedures of ORS chapter 90: Plaintiff attached a termination
of tenancy notice, served the same summons form stating,
“YOUR LANDLORD WANTS TO EVICT YOU,” and did not
pay an increased filing fee required by certain proceedings
where ORS chapter 90 does not apply. Thus, defendants contend that the court determined correctly that this action
arose under ORS chapter 90 and did not err in awarding
attorney fees.
A trial court has discretion and “may” award attorney fees to the prevailing party in “any action on a rental
agreement or arising under” ORS chapter 90. ORS 90.255.
Although the court has discretion to award fees when authorized, whether a party is entitled to attorney fees under a
particular statute is a question of law. See Erickson v. R&R
Ranches, LLC, 316 Or App 287, 292,
503 P3d 1261 (2021) (“A
party is not entitled to an award of attorney fees unless a
statutory or contractual provision specifically authorizes the
award.”); see also Anderson v. Sullivan,
311 Or App 406, 413,
492 P3d 118, rev den,
368 Or 702 (2021) (explaining that,
even where it has discretion to award fees, the court errs if
the decision to do so is based on a mistaken legal premise).
Here, because the parties agree that there was no rental
agreement, the court was authorized to award attorney fees
only if plaintiff brought a claim that “aris[es] under” ORS
chapter 90.
To determine whether plaintiff did so, we must first
resolve which of plaintiff’s complaints is the operative complaint under which he brought his claim. Defendants argue
that plaintiff’s “initial complaint and conduct” were specifically but improperly brought under ORS chapter 90. And,
relying on Dikeman v. Carla Properties, Ltd., 127 Or App 53,
871 P2d 474 (1994), defendants contend that the prevailing
236 Mehta v. Carson
party is entitled to attorney fees where a party improperly
brings a claim under that chapter. In that case, the trial
court determined that the defendant was not entitled to
attorney fees under ORS 90.255 because it determined that
ORS chapter 90 did not apply to the plaintiff’s negligence
claim.
Id. at 63. On appeal, we reversed and concluded that,
when a plaintiff brings an action alleging claims under ORS
chapter 90, a prevailing defendant is entitled to recover
under ORS 90.255, even where it is later determined that
ORS chapter 90 did not apply to the alleged claim.
Id.
Unlike the plaintiff in Dikeman, however, plaintiff
here amended his complaint “by filing a new pleading …
without reference to the original or any preceding amended
one.” ORCP 23 D. By doing so, plaintiff’s amended complaint
became the operative complaint. See Balboa Apartments v.
Patrick, 351 Or 205, 212,
263 P3d 1011 (2011) (“The effect of
filing [an] amended complaint is to supersede the original
pleading.”); see also Rucker v. Rucker,
257 Or App 544, 552,
307 P3d 498 (2013) (explaining that the “amended pleading
completely replaced and superseded the prior pleading”).
Thus, we conclude that plaintiff’s initial complaint had no
bearing on the issue of defendants’ entitlement to attorney
fees under ORS 90.255.
That leads us to the second issue that we must
resolve—whether plaintiff brought the amended complaint—improperly or not—under ORS chapter 90. The trial
court determined that the amended complaint was “brought
under” the “ ‘squatter’ provision” of ORS chapter 90. That
determination is supported by the allegation in plaintiff’s
amended complaint that “Defendants are ‘squatters’ as that
term is defined by ORS 90.100(44).”
The trial court then awarded attorney’s fees to
defendants because “[t]he issue arose under ORS chapter
90.” But the trial court’s determination that the amended
complaint was “brought under” the “squatter provision”
precluded the court from awarding fees under ORS 90.255,
because a complaint brought under that provision does not
“aris[e] under” ORS chapter 90.
Cite as 340 Or App 231 (2025) 237
The provision at issue, ORS 90.100(47), appears in
the ORLTA and is part of the definitions for terms “[a]s used
in this chapter.” ORS 90.100. It defines “squatter,” in part, to
mean “a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by
the tenant to occupy that dwelling unit.” Although the term
squatter is defined within ORS chapter 90, the occupancy
of a squatter is excluded from application of the ORLTA by
ORS 90.110, which provides:
“Unless created to avoid the application of this chapter, the following arrangements are not governed by this
chapter:
“…
“(5) Occupancy by a squatter.”
The trial court’s letter opinion does not address ORS
90.110(5) or explain how it determined that the amended
complaint was brought under the squatter provision but also
“arose under” ORS chapter 90, when occupancy by a squatter is expressly excluded from application of the ORLTA.2
In sum, the court’s determination that plaintiff’s amended
complaint was brought under the squatter provision precluded it from awarding attorney fees under ORS 90.255.3
We therefore reverse the attorney fee award.
Reversed.
2
Defendants contend that the introductory phrase of ORS 90.110 nullifies the
exclusion from ORS chapter 90 because, they argue, plaintiff’s intent in amending the complaint was to “avoid the application” of ORS chapter 90. We reject
that argument. The proper focus in determining whether the “arrangement” was
“created to avoid the application” of ORS chapter 90 is not on plaintiff’s litigation
strategy; rather, it is the type of arrangement that the parties structured at the
time the arrangement was created, and the procedures they used to do so. See
Burke v. Oxford House of Oregon Chapter V, 341 Or 82, 91,
137 P3d 1278 (2006)
(explaining that the term “arrangements” in ORS 90.110 “includes not only the
type of rental arrangement but also the procedures by which the parties have
structured the rental arrangement”).
3
That plaintiff served defendants with a summons and termination notice
that comported with ORS chapter 90 does not affect our disposition. It is the complaint that commences the action and serves as the basis for the pleading. ORCP
3. And defendants do not argue that the amended complaint was brought under
a different provision or challenge the court’s determination that it was brought
under the squatter provision.
