Elk Creek Management Company v. Gilbert

303 P.3d 929 (2013)

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Nature of the Case

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Facts

At some time before May 19, 2009, Gilbert (D) 'made some sort of general complaint(s) about the electrical system on the property.' The manager also had noticed a bent service mast and had become concerned about the property's electrical service. On May 19, P gave D written notice that the owner wanted to do a 'walk-through' of the premises. That notice stated that the owner was going to 'check out the breaker box and want[ed] to see the floor in the bathroom.' The manager advised d that she wanted to do another walk-through on June 16. A licensed electrician accompanied the owner and the manager on that second walk-through, and, at its conclusion, the electrician recommended that the owner make repairs to the electrical system. The manager called D the next afternoon and informed them that the owner had decided to terminate their lease. D received a 30-day no-cause termination notice and a note from the manager, which stated: 'I am sorry that I have to give you the thirty days notice. [The owner] has several repairs including updating the electrical. If there is anything I can do, please let me know.' D failed to vacate the premises and P filed an action for possession. D claimed retaliatory eviction. The trial court rejected D's defense concluding that D had not established that the tenancy termination constituted 'retaliation' by the owner. It held that the concept of lex talionis (eye for an eye) was applicable. D appealed, and the Court of Appeals affirmed. It held that 'the concept of retaliation involves an intention on the part of the landlord to cause some sort of disadvantage to the tenant, motivated by an injury (or perceived injury) that the tenant has caused the landlord,' and that the tenants had failed to prove those facts. D appealed.