112 February 22, 2024 No. 116
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Penney JOHNSON,
Plaintiff-Appellant,
v.
Michael MULLEN
and Lisa Mullen,
husband and wife,
Defendants-Respondents.
Michael MULLEN
and Lisa Mullen,
husband and wife,
Third Party Plaintiffs,
v.
MIRACLE INDUSTRIES, INC.,
dba Servicemaster Cleaning Specialists et al.,
Third Party Defendants.
Deschutes County Circuit Court
19CV50988; A176244
Beth M. Bagley, Judge.
Argued and submitted June 8, 2023.
Calvin P. Vance argued the cause and filed the briefs for
appellant.
Michael G. Jacobs argued the cause for respondents. Also
on the brief was Hart Wagner LLP.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 331 Or App 128 (2024) 113
114 Johnson v. Mullen
HELLMAN, J.
Plaintiff appeals from a limited judgment and a
supplemental judgment entered in favor of defendants. In
five assignments of error, she challenges the trial court’s
grant of summary judgment to defendants on her claims
and a supplemental judgment that awarded attorney fees to
defendants.1 For the following reasons, we affirm.
“We review a trial court’s grant of summary judg-
ment for errors of law and will affirm if there are no genuine
disputes about any material fact and the moving party is enti-
tled to judgment as a matter of law.” Beneficial Oregon, Inc.
v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021) (internal
quotation marks omitted). No genuine issue of material fact
exists when, viewing the evidence in the light most favorable
to the adverse party, “no objectively reasonable juror could
return a verdict for the adverse party on the matter that is
the subject of the motion for summary judgment.” ORCP 47 C.
We state the facts in accordance with that standard.
Defendants purchased the residential rental prop-
erty at issue in 2015. In 2016, the tenant at the time notified
defendants that the dishwasher leaked and defendants dis-
covered mold in the kitchen. Defendants hired a company to
perform water intrusion mitigation and repairs and, based
on the company’s recommendation, rebuilt the kitchen and
replaced the flooring. Defendants also commissioned air
quality testing and the results indicated that the property
was habitable. Defendants then leased the property to a dif-
ferent tenant until plaintiff began renting the property in
May 2018.
When the parties executed the lease, they also
executed a “Mold Prevention Addendum” (the addendum)
that required plaintiff to keep the property clean and to
“promptly report to [defendants] any leaks, moisture prob-
lems, and/or mold growth.” The addendum also required
plaintiff to use any available fans when bathing or cooking
1
The general judgment that dismissed the case with prejudice is not before
us on appeal. We do not address defendants’ issue preclusion arguments related
to the general judgment because issue preclusion does not apply to “an earlier
phase of the same case.” Hayes Oyster Co. v. Dulcich, 199 Or App 43, 50, 110 P3d
615, rev den, 339 Or 544 (2005).
Cite as 331 Or App 128 (2024) 115
and to frequently inspect interior areas—such as cabinets
and sinks—for leaks, among other similar responsibilities.
The addendum further provided that violations of its terms
constituted default of the lease.
According to plaintiff, she experienced medical
symptoms within days of moving in. She observed that an
exterior door had inadequate weather stripping, that the
laundry room and bathroom lacked proper ventilation, and
that the exterior hose bibs leaked. Plaintiff represents that
she reported those problems to defendants, but that defen-
dants did not remediate them.
In 2019, plaintiff commissioned a mold test of the
property without defendants’ knowledge, and, after receiv-
ing the results, decided to move out. Plaintiff later filed a
complaint alleging that defendants violated the Oregon
Residential Landlord and Tenant Act, ORS chapter 90, and
negligently maintained the property by allowing mold to
grow and rendering the property uninhabitable. Plaintiff
also sought declaratory relief, arguing that the addendum
was unenforceable. Defendants filed a motion for summary
judgment on plaintiff’s claims and supported their motion
with several declarations, including a declaration from one
defendant that stated, “[a]t no point during [plaintiff’s] ten-
ancy did she ever notify [defendants] of her belief that the
Property was uninhabitable due to mold contamination.”
The trial court granted summary judgment to defendants
on plaintiff’s claims and entered a limited judgment in their
favor. This appeal followed.
We understand plaintiff’s first four assignments of
error to challenge the trial court’s summary judgment rul-
ing for various reasons. First, plaintiff argues that the trial
court erred because there is a genuine issue of material fact
concerning defendants’ knowledge that the property was
uninhabitable. Citing Eddy v. Anderson, 366 Or 176, 458
P3d 678 (2020), plaintiff argues that because defendants
knew that mold was present in 2016, “they had actual notice
of their habitability violation.” We disagree.
A tenant cannot recover damages for habitability
violations “if the landlord neither knew nor reasonably should
116 Johnson v. Mullen
have known of the condition that constituted the noncompli-
ance,” and the tenant “knew or reasonably should have known
of the condition and failed to give actual notice to the landlord
in a reasonable time.” ORS 90.360(2) (emphasis added). In
Eddy, the Supreme Court explained that “ ‘actual notice,’ as
required by ORS 90.360(2), does not require written notice.
Rather, actual notice can be given verbally or by any ‘other
method reasonably calculated to achieve actual receipt of
notice, as agreed to and described in a written rental agree-
ment.’ ” 366 Or at 192 (quoting ORS 90.150(1), (4)).
When viewed in the light most favorable to plaintiff,
the record does not permit an objectively reasonable juror
to determine that defendants had actual knowledge that
the property was uninhabitable. Plaintiff points to the air
quality report that defendants received in 2016 as evidence
that defendants “already knew of the mold contamination.”
However, the environmental hygienist who prepared the
report stated in a declaration that successive air sampling
tests “demonstrate[d] that mold levels within the Property
decreased steadily” and that “spores in the Property at the
time of the September 22, 2016, sampling did not render
the Property uninhabitable.” Further, even though plain-
tiff tested the property for mold in 2019, she testified in a
deposition that she did not tell defendants about the test or
that she believed the property was uninhabitable before she
moved out.
In sum, even though the record demonstrates that
defendants knew that mold and spores had been present in
2016, that fact—without more—is insufficient to support a
determination that defendants had actual notice that the
property was uninhabitable in 2018 and 2019 during plain-
tiff’s tenancy. The trial court did not misapply Eddy when it
granted summary judgment to defendants.
In a combined second and third argument, we
understand plaintiff to contend that the trial court failed to
view the evidence in the light most favorable to plaintiff, as
the adverse party, and that her declaration created a gen-
uine issue of material fact by contradicting misrepresenta-
tions in one of defendant’s declarations.
Cite as 331 Or App 128 (2024) 117
We disagree with plaintiff’s argument. The trial
court did consider the evidence—including plaintiff’s state-
ments in her declaration about requested repairs, the 2019
mold test, and that “[defendants] said the house had been
tested and cleared”—in the light most favorable to plain-
tiff. The trial court concluded, however, that “even if taken
as true, those once again do not bear on the home being
uninhabitable due to a mold infestation.” The court further
explained that plaintiff’s evidence and any reasonable infer-
ences that it could draw in her favor failed to raise a genu-
ine issue of material fact on the critical question of whether
defendants knew that the property was uninhabitable
during plaintiff’s tenancy. The trial court did not err in its
evaluation of plaintiff’s evidence.
In her fourth argument, we understand plaintiff
to assert that the trial court erred when it concluded that
the addendum was enforceable. Specifically, plaintiff argues
that the addendum violates ORS 90.245 and public policy
by “shift[ing] liability for maintaining a habitable premises
onto the tenant.”2
The addendum required plaintiff to take rea-
sonable steps to keep the property clean, including using
exhaust fans when cooking, and to immediately report any
water concerns and mold growth to defendants. Because the
addendum’s terms comport with a tenant’s responsibilities
under ORS 90.325 and do not relieve defendants of their stat-
utory obligations, it does not “shift” liability onto plaintiff.
Compare ORS 90.325(1) (requiring a tenant, among other
obligations, to “[k]eep all areas of the premises under control
of the tenant in every part as clean, sanitary and free from
all accumulations of debris, filth, rubbish, garbage, rodents
and vermin”) with ORS 90.320(1) (requiring the landlord
“at all times during the tenancy [to] maintain the dwelling
unit in a habitable condition”) and ORS 90.220(1) (providing
that a rental agreement may include “terms and conditions
not prohibited by this chapter or other rule of law including
rent, term of the agreement and other provisions governing
2
ORS 90.245(1) provides that a rental agreement may not, among other
things, require a tenant to “exculpat[e] or limit[ ] * * * any liability arising as a
result of the other party’s willful misconduct or negligence or to indemnify the
other party for that liability or costs connected therewith[.]”
118 Johnson v. Mullen
the rights and obligations of the parties”). Accordingly, the
trial court did not err in determining that the addendum
was enforceable.
In her final assignment of error, plaintiff argues
that the trial court erred when it awarded attorney fees to
defendants. “Whether a party is entitled to attorney fees
presents a question of law, but whether fees are reasonable
is a factual determination that we review for abuse of dis-
cretion.” Makarios-Oregon, LLC v. Ross Dress-for-Less, Inc.,
293 Or App 732, 739, 430 P3d 142, adh’d to as modified on
recons, 295 Or App 449, 430 P3d 1125 (2018).
We understand plaintiff to argue that because the
trial court erred when it granted summary judgment to
defendants, defendants were not the prevailing party and,
therefore, were not entitled to attorney fees. Our answer
above resolves plaintiff’s argument here. To the extent
that plaintiff argues that the fee award was unreasonable,
we decline to address that matter because no legal argu-
ment is sufficiently developed in appellant’s brief. See Beall
Transport Equipment Co. v. Southern Pacific, 186 Or App
696, 700 n 2, 64 P3d 1193 (2003) (“[I]t is not this court’s
function to speculate as to what a party’s argument might
be. Nor is it our proper function to make or develop a par-
ty’s argument when that party has not endeavored to do so
itself.”).
Affirmed.