Kesterson v. Juhl

10 Citing cases

  1. Lry, LLC v. Lake Cnty.

    Civ. 1:17-cv-00675-MC (D. Or. Oct. 27, 2021)   Cited 2 times

    , we must determine whether it is imposed as an unlawful penalty.” Kesterson v. Juhl, 157 Or.App. 544, 548 (1998) (citing DiTommaso Realty, Inc. v. Moak Motorcycles, Inc., 309 Or. 190, 195 (1990)).

  2. In re Ladieu

    Case # 07-10868, Adversary Proceeding # 08-1010 (Bankr. D. Vt. Nov. 4, 2011)

    Mr. Ladieu argues this is an unenforceable liquidated damages provision because the values assigned to the Cassettes are unreasonable and are substantially higher than the actual damages Rentrak suffered as a result of his sale of Cassettes. Under Oregon law, "whether a contract contains an unlawful liquidated damages clause is determined by a two-step inquiry."Kesterson v. Juhl, 970 P.2d 681, 683, 157 Or. App. 544, 548 (Or. Ct. App. 1998). "First, [the Court] must determine whether the disputed clause actually is a liquated damages clause."

  3. Rentrak Corp. v. Ladieu (In re Ladieu)

    Chapter 7 Case # 07-10868 (Bankr. D. Vt. Nov. 4, 2011)

    Under Oregon law, "whether a contract contains an unlawful liquidated damages clause is determined by a two-step inquiry." Kesterson v. Juhl, 970 P.2d 681, 683, 157 Or. App. 544, 548 (Or. Ct. App. 1998). "First, [the Court] must determine whether the disputed clause actually is a liquated damages clause."

  4. In re Ladieu

    Case # 07-10868, Adversary Proceeding # 08-1010 (Bankr. D. Vt. Feb. 24, 2011)   Cited 7 times
    Finding that the automatic stay applied to the Chapter 7 debtor's corporation

    Under Oregon law, "whether a contract contains an unlawful liquidated damages clause is determined by a two-step inquiry." Kesterson v. Juhl, 970 P.2d 681, 683, 157 Or. App. 544, 548 (Or. Ct. App. 1998). "First, [the Court] must determine whether the disputed clause actually is a liquated damages clause."

  5. Breslau v. Campbell

    3:23-cv-00459-AR (D. Or. Feb. 16, 2024)

    Kesterson v. Juhl, 157 Or.App. 544, 548 (1998) (citing DiTommaso Realty, Inc. v.Moak Motorcycles, Inc., 309 Or. 190, 195 (1990)). There is no need to reach the second question if the first is answered in the negative.

  6. Old Navy, LLC v. Ctr. Devs. Oreg., LLC

    Civil Case No. 3:11-472-KI (D. Or. Jun. 13, 2012)   Cited 6 times
    Upholding cotenancy provision allowing tenant to pay "Alternate Rent Remedy" equal to lesser of two percent of gross sales or the "Minimum Rent then applicable" if cotenancy requirement not met and finding "the Alternate Rent Remedy is not a liquidated damages provision"

    This is a legal determination that is appropriate for summary judgment. Kesterson v. Juhl, 157 Or. App. 544, 548, 970 P.2d 681 (1998). Courts undertake a two-step inquiry in evaluating whether a provision awards unenforceable liquidated damages. The court first determines whether the disputed clause actually is a liquidated damages clause, defined as "words of a contract that set the amount of damages to be recovered by one party from another in case of the latter's failure to perform as agreed."

  7. Wells Fargo Bank, N.A. v. Ash Organization

    No. 09-CV-188-MO (D. Or. Jul. 1, 2010)   Cited 8 times
    Granting motion for summary judgment to loan servicer on tortious-interference claim because even if it was not necessarily an agent, it was not an “intermeddling third-party stranger” to contract, and emphasizing that “[bank] interacted with [the borrower] only through [the loan servicer], and in this respect [the bank's] contractual relationship with [the plaintiff] was inextricably linked to its contractual relationship with [the loan servicer]”

    Oregon courts use a two-part inquiry to determine whether a contract provision is an unlawful liquidated damages clause. Kesterson v. Juhl, 970 P.2d 681, 683 (Or. Ct. App. 1998). First, the court "determine[s] whether the disputed clause actually is a liquidated damages clause."

  8. Allstream Bus. U.S. v. Carrier Network Sols.

    3:20-cv-01970-IM (D. Or. Aug. 9, 2021)   Cited 3 times

    “[T]he ‘initial point of departure' for analyzing the validity of a liquidated damages provision is ORS 72.7180(1).” Kesterson v. Juhl, 970 P.2d 681, 683 (Or. Ct. App. 1998) (quoting Illingworth, 688 P.2d at 390). O.R.S. § 72.7180(1) provides that:

  9. Rentrak Corporation v. Parker

    CV. No. 00-726-HA (D. Or. Jan. 8, 2002)

    The parties agree the provision is a liquidated damages clause. To determine whether such a clause may amount to an unlawful penalty in Oregon, a court considers (1) whether the liquidated damages amount is reasonable in light of the anticipated or actual harm caused by the breach; (2) how difficult damages would be to prove; and (3) how difficult obtaining another adequate remedy would be. Kesteron v. Juhl, 157 Or. App. 544, 548-49, 970 P.2d 681 (1998). Because of the factual issues precluding summary judgment on the issue of these fees, the question as to whether the fees are invalid is not yet reached.

  10. In re Springer Constr.

    22-31974-dwh7 (Bankr. D. Or. Dec. 19, 2023)

    In Illingworth, the court held that a contract provision is one for liquidated damages if it contains "words . . . that set the amount of damages to be recovered by one party from another in case of the latter's failure to perform as agreed."Kesterson v. Juhl, 970 P.2d 681, 683 (Or. App. 1998).