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 judgment for errors of law and will affirm if there are no genuine 

disputes about any material fact and the moving party is entitled 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 property at issue in 2015. In 2016, the tenant at the time notified 

defendants that the dishwasher leaked and defendants discovered 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 different 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 problems, 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 defendants did not remediate them.

In 2019, plaintiff commissioned a mold test of the 

property without defendants’ knowledge, and, after receiving 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] tenancy 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 ruling 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 noncompliance,” 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 agreement.’” 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 plaintiff 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 plaintiff’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 genuine issue of material fact by contradicting misrepresentations 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 statements 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 plaintiff. 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 inferences that it could draw in her favor failed to raise a genuine 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 reasonable 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 statutory 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 discretion.” 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 argument 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 party’s argument when that party has not endeavored to do so 

itself.”).

Affirmed.