Birchall v. Miller

Under Nordbye v. BCRP/GM Ellington, 271 Or App 168 (2015), a "potential claim for prevailing-party based attorney fees" cannot support a forcible entry and detainer case where there is no longer a live dispute about possessory rights.

Tenant appealed a forcible entry and detainer (FED) judgment award of real property possession to Landlords. Tenant assigned error to, inter alia, the trial court's denial of their motion to dismiss the case as moot after vacating the property at issue. On appeal, Tenant argued that FED proceedings are statutorily limited to the issue of possession of the premises and that once they vacated the premises, dismissal was required. In response, Landlords argued that the trial court could still determine the issue of possession to determine whether Landlords would be entitled to an attorney fee award. Under Nordbye v. BCRP/GM Ellington, 271 Or App 168 (2015), a "potential claim for prevailing-party based attorney fees" cannot support a forcible entry and detainer case where there is no longer a live dispute about possessory rights. The Court found that this case "cannot be distinguished in any persuasive way from Nordbye[,]" where the Court previously held that trial courts are "foreclosed" from entering judgment on moot claims and that potential attorney fee claims cannot prevent mootness. The Court stated that once "there was no longer a live dispute about [Landlord's] right to possess" the premises, the case should have been dismissed as moot. Reversed and remanded.