S054734, Opinion — Liles v. Damon Corp.

420
Argued and submitted November 6, 2007, decision of Court of Appeals reversed;
judgment of circuit court affirmed December 11, 2008
Dale L. LILES
and Karen Marie Liles,
husband and wife,
Petitioners on Review,
v.
DAMON CORPORATION,
an Indiana Corporation,
Respondent on Review.
(CC 033086; CAA129113; SC S054734)
198 P3d 926

Cite as 345 Or 420 (2008) 	421
On review from the Court of Appeals.*
Gary E. Norman, Albany, argued the cause and filed the
brief for petitioners on review.
William A. Drew, of Elliott, Ostrander and Preston PC,
Portland, argued the cause and filed the briefs for respondent
on review.
Brian S. Campf, of Brian S. Campf, PC, Portland, filed the
brief for amicus curiae Oregon Trial Lawyers Association.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
DURHAM,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.
* Appeal from Linn County Circuit Court, John A. McCormick, Judge. 210 Or
App 303, 150 P3d 432 (2006).
** Linder, J., did not participate in the consideration or decision of this case.

422 	Liles v. Damon Corp.
DURHAM,J.
Plaintiffs brought this action under ORS 646A.400
to 646A.418, commonly known as Oregon's Lemon Law,1
seeking replacement of a motor home that they had pur-
chased. The issue on review concerns the proper interpreta-
tion of ORS 646A.402, which we quote below in full. Under
that statute, a statutory remedy is "available to a consumer"
if, among other things, the manufacturer of a motor vehicle
has received "direct written notification" from the consumer
and "has had an opportunity to correct the alleged defect."
ORS 646A.402(3).
After a trial, the trial court found that plaintiffs had
satisfied the statutory requirements and granted relief. Spe-
cifically, the court rejected defendant's contention that ORS
646A.402(3) obligated 	plaintiffs 	to 	afford defendant the
opportunity to correct the alleged defect after sending written
notification to defendant and before filing their action. In its
judgment, the court made the following finding of fact:
"The Court finds that the manufacturer did receive ade-
quate written notification of these defects from the Plain-
tiffs and that the manufacturer also had ample opportunity
to correct the defects."
On appeal, the Court of Appeals reversed. The Court
of Appeals concluded that the conditions in the statute
applied in sequence: that is, the delivery of the consumer's
"direct written notification" of the defect must occur before
the manufacturer has any "opportunity to correct" the defect
under the statute. Moreover, the court determined that each
statutory condition "must be met before seeking a remedy
under the Lemon Law[,]" meaning that plaintiffs had to sat-
isfy each condition before filing their action. Liles v. Damon
Corp., 210 Or App 303, 314, 150 P3d 432 (2006). According to
the Court of Appeals, plaintiffs had satisfied the written
notice requirement but, after doing so, had not provided
defendant an opportunity to correct the alleged defect before
1 Plaintiffs brought their action in 2003 under the statutes then in effect. In the
interim, the legislature renumbered the statutes that comprise Oregon's Lemon
Law but did not change their substantive terms. We refer in this opinion to the
renumbered statutes.

Cite as 	423
filing their action. This court granted review to determine
whether the Court of Appeals had correctly construed the
requirements in Oregon's Lemon Law.
We view the evidence in the light most favorable to
plaintiffs, who prevailed at trial. On December 30, 2002,
plaintiffs purchased a motor home from a dealer in Sandy,
Oregon. Defendant manufactured the motor home. Accord-
ing to the trial court's finding, plaintiffs
"began contacting the factory representatives by phone in
April of 2003 regarding the water leak problems they were
experiencing with the unit. They contacted the factory rep-
resentative about the many problems with the motor home
numerous times between April 2003 and December 2003.
The Plaintiffs also presented numerous times between
April 2003 and December 2003. The Plaintiffs also pre-
sented numerous repair orders from the selling dealer rep-
resenting many unsuccessful attempts to repair the water
leaks in this unit during that same period [of] time."
The vehicle dealer performed most of the unsuccess-
ful attempts to repair the leaks. However, the trial court
found that, on one occasion, defendant directed plaintiffs to
submit the vehicle for repair at a different repair shop. That
attempted repair occurred on December 9, 2003, but it, too,
was 	unsuccessful. 	According 	to 	the 	trial 	court, 	that
attempted repair "was specifically authorized by the manu-
facturer as their attempt to cure the defect[ ]" and "was an
opportunity to correct the defect before the lawsuit was filed
even though written notice wasn't given."
On December 23, 2003, an attorney representing
plaintiffs sent a letter to defendant under Oregon's Lemon
Law. The letter described the water leak problems and plain-
tiffs' unsuccessful efforts to resolve them through multiple
repair efforts and through several discussions with defen-
dant's representatives, including its president and "the field
person for Damon in charge of repairs." The letter requested
the 	replacement 	remedy 	under 	the 	Lemon 	Law, 	ORS
646A404(1)(a), which we quote below. The letter also stated:
"Because of the timeline of the statute in this case, I must
file a Complaint under the Oregon Lemon Law within one

424 	Liles v. Damon Corp.
year of the delivery date, which was December 30, 2002.121
Please let me hear from you right away."
Defendant received the letter described above on
December 29, 2003. Plaintiffs filed their action the next day,
December 30, 2003. In January 2004, plaintiffs informed
defendant that it could have access to the vehicle, but defen-
dant took no further action to assess or repair the rainwater
leaks. The case was tried to the court sitting without a jury on
February 24, 2005, and the court entered judgment for plain-
tiffs on June 7, 2005. As noted, the Court of Appeals reversed,
and we allowed plaintiffs' petition for review.
This case requires the interpretation of several stat-
utory provisions in Oregon's Lemon Law. We begin with the
text and context of the statutes and endeavor to give meaning
to all parts of those statutes.
ORS 646A.402 provides:
"The remedy under the provisions of ORS 646A.400 to
646A.418 is available to a consumer if:
"(l) 	A new motor vehicle does not conform to applica-
ble manufacturer's express warranties;
"(2) 	The consumer reports each nonconformity to the
manufacturer, its agent or its authorized dealer, for the
purpose of repair or correction, during the period of one
year following the date of original delivery of the motor
vehicle to the consumer or during the period ending on the
date on which the mileage on the motor vehicle reaches
12,000 miles, whichever period ends earlier; and
"(3) 	The manufacturer has received direct written
notification from or on behalf of the consumer and has had
an opportunity to correct the alleged defect. 'Notification'
under this subsection includes, but is not limited to, a
2 The Court of Appeals concluded that plaintiffs' attorney's interpretation of
the applicable statute oflimitations was mistaken. Liles, 210 Or App at 305 n 2. We
agree with the Court of Appeals. Under ORS 646A416, plaintiffs had to file their
action within one year after whichever of the following time periods ended earlier:
"(1) The period ending on the date on which the mileage on the motor vehi-
cle reaches 12,000 miles; or
"(2) The period of one year following the date of the original delivery of the
motor vehicle to the consumer."

Cite as 345 Or 420 	425
request by the consumer for an informal dispute settlement
procedure under ORS 646A.408."
ORS 646A.404(1) describes the remedy that is avail-
able to a consumer:
"If the manufacturer or its agents or authorized dealers
are unable to conform the motor vehicle to any applicable
manufacturer's express warranty by repairing or correcting
any defect or condition that substantially impairs the use,
market value or safety of the motor vehicle to the consumer
after a reasonable number of attempts, the manufacturer
shall:
"(a) 	Replace the motor vehicle with a new motor vehi-
cle; or
"(b) 	Accept return of the vehicle from the consumer
and refund to the consumer the full purchase or lease price
paid, including taxes, license and registration fees and any
similar collateral charges excluding interest, less a reason-
able allowance for the consumer's use of the vehicle."
ORS 646A.406 creates a presumption, potentially
usable during litigation, about whether the vehicle manufac-
turer or dealer has undertaken a "reasonable number of
attempts" to conform the vehicle to applicable manufac-
turer's express warranties. That statute provides, in part:
"(1) 	It shall be presumed that a reasonable number of
attempts have been undertaken to conform a motor vehicle
to the applicable manufacturer's express warranties if, dur-
ing the period of one year following the date of original
delivery of the motor vehicle to a consumer or during the
period ending on the date on which the mileage on the
motor vehicle reaches 12,000 miles, whichever period ends
earlier:
"(a) 	The same nonconformity has been subject to
repair or correction four or more times by the manufacturer
or its agent or authorized dealer, but such nonconformity
continues to exist; or
"(b) 	The vehicle is out of service by reason of repair or
correction for a cumulative total of 30 or more business
days.

426 	Liles v. Damon Corp.
"(2) 	A repair or correction for purposes of subsection
(1) of this section includes a repair that must take place
after the expiration of the earlier of either period.
"* * * * *
"(4) 	In no event shall the presumption described in
subsection (1) of this section apply against a manufacturer
unless the manufacturer has received prior direct written
notification from or on behalf of the consumer and has had
an opportunity to cure the defect alleged."
ORS 	646A.412(1) 	describes 	additional 	remedies
available to a consumer in a successful action under the stat-
ute "against a manufacturer * * *." ORS 646A.414(1) con-
firms that the statute does not create an action against a
vehicle dealer.
Several features of the statutory text are note-
worthy. The statutory remedy is "available to a consumer"
under ORS 646.402 only if the consumer communicates cer-
tain information to others. First, under ORS 646A.402(2), the
consumer must "report[]" the defects to "the manufacturer,
its agent or its authorized dealer, for the purpose ofrepair or
correction" 	within 	the 	timeframe 	that 	the 	subsection
describes. The statute does not require that communication
to be in writing. Second, the consumer or someone acting on
the consumer's behalf must give the manufacturer "direct
written notification." The statute does not describe the infor-
mation that the consumer's written notice must contain
beyond confirming that a consumer's request for an informal
dispute settlement procedure under ORS 646A.408 consti-
tutes notification. There is no dispute here that plaintiffs sat-
isfied both of the statutory notice requirements described
above.
The issue presented is whether defendant "has had
an opportunity to correct the alleged defect" under ORS
646A.402(3). As noted, defendant contends that the opportu-
nity for correction must occur after it receives the consumer's
written notification under ORS 646A.402(3) but also before
the consumer files an action. Defendant asserts that plain-
tiffs afforded it no opportunity to correct the defect under the
statute because only one day elapsed between its receipt of

Cite as 345 Or 420 (2008) 	427
plaintiffs' attorney's letter on December 29, 2003, and the fil-
ing of the action on December 30, 2003.
Defendant's contention that a single day did not
afford 	a reasonable opportunity to correct the 	vehicle's
defects fails because it proceeds from an erroneous construc-
tion of ORS 646A.402(3). Notably, the statute does not state
that the consumer's written notification and the manufac-
turer's 	opportunity 	for 	correction 	are prefiling 	require-
ments-that is, required procedural steps that must occur
before the filing of the action. Rather, ORS 646A.402 states
that those requirements are conditions that must exist ifthe
statutory remedy is to be "available to a consumer[.]"
That distinctive terminology refers to conditions
that the court must assess when it exercises its authority to
grant or deny the requested remedy; it does not create a
prefiling requirement. When the legislature has created
prefiling 	procedural 	requirements 	in 	other 	contexts, 	it
has 	used 	terms 	that 	unmistakably convey that intent.
For example, ORS 20.080(1),3 ORS 105.445,4 and ORCP
3 ORS 20.080(1) provides:
"In any action for damages for an injury or wrong to the person or property,
or both, of another where the amount pleaded is $5,500 or less, and the plaintiff
prevails in the action, there shall be taxed and allowed to the plaintiff, at trial
and on appeal, a reasonable amount to be fixed by the court as attorney fees for
the prosecution of the action, ifthe court finds that written demand for the pay-
ment of such claim was made on the defendant not less than 10 days before the
commencement of the action or the filing of a formal complaint under ORS
46.465, or not more than 10 days after the transfer of the action under ORS
46.461. However, no attorney fees shall be allowed to the plaintiff if the court
finds that the defendant tendered to the plaintiff, prior to the commencement
of the action or the filing of a formal complaint under ORS 46.465, or not more
than 10 days after the transfer of the action under ORS 46.461, an amount not
less than the damages awarded to the plaintiff."
(Emphasis added.)
ORS 105.445(2) provides:
"Notwithstanding any other provision oflaw or any purchase money secu-
rity interest, the issuance of the notice under ORS 105.430(2) shall constitute
a default under the purchase money security interest, and if the violations of
the building or housing code.~ listed in the notice are not corrected within 30
da.vs after the mailing of the notice, the vendor, mortgagee or beneficiary under
the purchase money security interest may commence proceedings to exercise the
remedies set forth in the purchase money security interest."
(Emphasis added.)

428 	Liles v. Damon Corp.
32 H 5 create procedural requirements in certain statutory
proceedings that must occur before a plaintiff commences the
action in question. ORS 646A.402(3) lacks any counterpart to
the substantive terms of those prefiling requirements.
Defendant contends that the word "alleged" in ORS
646A.402(3) indicates that the defect to which the manufac-
turer's opportunity to correct pertains must be a defect that
the 	consumer has 	"alleged" in the written notification.
According to defendant, the term "alleged" suggests that the
two procedural conditions in ORS 646A.402(3) must apply in
sequence.
Even if we were to accept defendant's point for the
sake of argument, it would not support defendant's further
view that the conditions in ORS 646A.402(3) must be met
ORS 105.430(2) provides:
"At least 60 days prior to the filing of an application for appointment of a
receiver pursuant to ORS 105.420 to 105.455, the city or county shall give
written notice by regular mail to all interested parties of its intent to file the
application and information relative to:
"(a) The identity of the property;
"(b) The violations of the building or housing codes giving rise to the appli-
cation for the receiver;
"(c) The name, address and telephone number of the person or department
where additional information can be obtained concerning violations and their
remedy; and
"(d) The city or county which may seek the appointment of a receiver pur-
suant to ORS 105.420 to 105.455 unless action is taken within 60 days by an
interested party."
5 ORCP 32 H provides:
"H( 1) Thirty days or more prior to the commencement of an action for dam-
ages pursuant to the provisions of sections A and B of this rule. the potential
plaintiffs' class representative shall:
"H(l)(a) Notify the potential defendant of the particular alleged cause of
action; and
"H(l)(b) Demand that such person correct or rectify the alleged wrong.
"H(2) Such notice shall be in writing and shall be sent by certified or reg-
istered mail, return receipt requested, to the place where the transaction
occurred, such person's principal place of business within this state, or, in the
case of a corporation or limited partnership not authorized to transact business
in this state, to the principal office or place of business of the corporation or
limited partnership, and to any address the use of which the class representa-
tive knows, or on the basis ofreasonable inquiry, has reason to believe is most
likely to result in actual notice."
(Emphasis added.)

Cite as 345 Or 420 (2008) 	429
before the commencement of an action. But it is not self-
evidently true that defendant is correct when it argues that
the word "alleged" in the phrase "alleged defect" refers solely
to an aspect of the consumer's written notification under ORS
646A.402(3). The term "alleged" means "asserted to be true
or to exist." Webster's Third New Int'l Dictionary 55 (una-
bridged ed 2002). That definition embraces both written and
oral assertions of a defect by the consumer. In context, the
term "alleged" serves only to link the manufacturer's "oppor-
tunity to correct" with the defect for which the consumer
seeks a statutory remedy; it does not create any additional
notice requirement.
The "opportunity to correct" requirement in ORS
646.402(3) assures the manufacturer that it will have a
chance to repair or correct the nonconformity of which the
consumer complains before the court determines the availa-
bility of the statutory remedies to the consumer. The statute
affords at least two opportunities to the consumer to identify
the nonconformity for that purpose: (1) the report to the man-
ufacturer, its agent or its authorized dealer under ORS
646A.402(2), and (2) the written notification under ORS
646.402(3). As noted, the first of those methods may be
accomplished orally, in writing, or a combination of both.
It is significant that ORS 646A.402(3) does not
require the consumer's "direct written notification" to include
any specific contents, such as a particular description of the
vehicle's defects. The written notification under subsection
(3) may consist of as simple a message as a request for an
informal 	dispute 	settlement 	procedure 	that 	might 	not
include any "allegations" of a vehicle's defects.
The 	terms 	of 	ORS 	646A.402, 	viewed 	in 	their
entirety, indicate that, when the court determines whether a
statutory remedy is available to the consumer, the consumer
must have (1) reported the vehicle's defect to the manufac-
turer, its agent, or authorized dealer in a timely manner; and
(2) given a direct written notification to the manufacturer. In
addition, the manufacturer must have had an opportunity to
correct that defect, not some different defect. The ordinary
meaning of the word "alleged" in ORS 646A.402(3) does not
confine the manufacturer's opportunity to repair solely to a

430 	Liles v. Damon Corp.
defect that the consumer has 	described in the written
notification.
Finally, the legislature's intent becomes clear when
we contrast the wording of ORS 646A.402(3) with that of
ORS 646A.406(4), quoted above. In the latter statute, the leg-
islature has assured manufacturers that the described pre-
sumption in favor of the consumer will not apply against
them "unless the manufacturer has received prior direct
written notification from or on behalf of the consumer and
has had an opportunity to cure the defect alleged." (Emphasis
added.) The term "prior" in that context confirms that, for
purposes of applying the presumption, the consumer notifi-
cation must precede the manufacturer's opportunity to cure
the defect.
The legislature did not include the word "prior" in
ORS 646A.402(3) and, if possible, we must accord legal
meaning to that omission. That task is not difficult in this
case. In ORS 646A.406(4), the legislature determined that a
manufacturer should be protected from the operation of the
evidentiary presumption unless it had engaged in specific
conduct: failing to use an opportunity to cure the vehicle
defect after receiving direct written notification from the con-
sumer. By contrast, under ORS 646A.402(3), the written
notification is a condition regarding the availability of the
statutory remedy and it serves to ensure that the manufac-
turer is aware of the consumer's dispute, but it need not nec-
essarily precede the manufacturer's opportunity to correct in
order for the statutory remedy to be available.
We can discern the legislature's intent from an
examination of the statutory text in context. In doing so, we
have given effect to every part of the pertinent statutes,
including the legislature's omission of the word "prior" in
ORS 646A.402(3), as noted above. Because the legislature's
intent is clear from our inquiry into text and context, further
inquiry is unnecessary.
In this case, before the trial court adjudicated the
availability of the statutory remedy to plaintiffs under ORS
646A.402, defendant had an opportunity to correct the defect
that was the subject of plaintiffs' action. On December 9,

Cite as 345 Or 420 (2008) 	431
2003, plaintiffs, acting on defendant's instructions, submit-
ted their vehicle for repair at a facility selected by defendant.
That attempted repair was unavailing. A separate opportu-
nity to repair occurred when plaintiffs made the vehicle
available to defendant in January 2004, after plaintiffs filed
this action. Defendant took no action in response to that
opportunity to repair the vehicle. The filing of the action did
not cut off defendant's opportunity to correct the defects in
plaintiffs' vehicle. We are satisfied that defendant had an
ample opportunity to cure the vehicle's alleged defects before
the trial court determined that the statutory remedy was
available to plaintiffs under ORS 646.402.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.