Brown v. Safeway Stores, Inc.

• Decision Date: 25 September 1980
• Docket Number: No. 46897-4,46897-4
• Citation: 94 Wn.2d 359,617 P.2d 704
• Court: Washington Supreme Court
• Parties: Bernard BROWN, Ben Genauer, Isaac Genauer, Jacob Genauer, Mendel Genauer, Sam Genauer, Hersch Pokok, Bertram M. Schreiber, Isador Schreiber, a partnership, doing business as Isador Schreiber & Associates, Appellants, v. SAFEWAY STORES, INCORPORATED, a Maryland Corporation, Respondent.

Page 359

94 Wn.2d 359

617 P.2d 704

Bernard BROWN, Ben Genauer, Isaac Genauer, Jacob Genauer Mendel Genauer, Sam Genauer, Hersch Pokok, Bertram M Schreiber, Isador Schreiber, a partnership, doing business as Isador Schreiber & Associates, Appellants, v. SAFEWAY STORES, INCORPORATED, a Maryland Corporation, Respondent.

No. 46897-4.

Supreme Court of Washington, En Banc.

Sept. 25, 1980.

Lycette, Diamond & Sylvester, James M. Thomas, Josef Diamond, Seattle, for appellants.

Bogle & Gates, Dean A. Messmer, Delbert D. Miller, Seattle, for respondent.

Slade Gorton, Atty. Gen., Jon P. Ferguson, Asst. Atty. Gen., Seattle, for amicus.

STAFFORD, Justice.

Appellant, Isador Schreiber and Associates, appeals from the trial court's grant of a motion to strike its jury demand and from the dismissal of its amended complaint. Respondent, Safeway Stores, Inc. (Safeway), cross-appeals from the dismissal of its counterclaim. For the reasons set forth below, we affirm the trial court.

This case involves the alleged breach of a commercial shopping center lease by Safeway. Prior to August 1965, Safeway acquired a parcel of land in Bellevue for the development of a shopping center. Safeway subsequently entered into negotiations for the sale of the property to Nickum Properties, Inc. (Nickum), a local shopping center developer. By June 1967, they had reached an agreement whereby Nickum would purchase the land, construct a shopping center thereon and lease back a commercial space to Safeway to be used as a supermarket. The agreement was subsequently embodied in a written shopping center lease.

Nickum encountered difficulties in financing the project. At that juncture, appellant entered into discussions with Safeway and Nickum, eventually purchasing the property with the understanding that a commercial space would be leased to Safeway for a supermarket. Nickum's interest in the development was wholly assigned to appellant.

The terms of the Safeway/Schreiber Shopping Center lease (Lease), executed on May 23, 1968, were identical to those of the original Safeway/Nickum lease except the dates and the names of the contracting parties. The Lease required Safeway to pay rental of $4,278 per month or one and one-half percent of its monthly gross sales, whichever was greater. The lease also contained an assignment/subletting provision which provided:

Lessee may assign this lease or sublet the whole or any part of the leased premises. If lessee assigns this lease, lessee shall remain liable as a surety to lessor for full performance of lessee's obligations.

Appellant constructed the shopping center (Center) and Safeway commenced operations in mid-1969. Percentage rents became payable beginning in 1973 and continued through 1976. In 1976, Safeway learned that a substantially larger commercial space would be available in a new shopping center to be constructed approximately one half mile from the Center. Approximately six months before moving, Safeway notified appellant it would be closing the Center store, relocating nearby, and that it intended to sublet the vacated commercial space. Both appellant and Safeway subsequently engaged in efforts to obtain a new tenant for the Center space.

On July 16, 1977, Safeway closed its Center store, and the following day opened its new supermarket at the nearby location. In August 1977, Safeway began sublease negotiations with Uwajimaya, Inc., an Asian grocery and import business. Before the Uwajimaya sublease could be executed, however, appellant filed the present action.

The Uwajimaya sublease was executed on October 1, 1977. It contemplated a new opening date of February 1, 1978. Due to the pendency of the present litigation, however, Uwajimaya did not begin the necessary remodeling to permit the store to be opened on the planned date. The trial court's uncontested finding of fact indicates that in order to induce Uwajimaya to begin preparations for opening its store, it was necessary for Safeway to grant Uwajimaya a rent reduction. Uwajimaya opened for business in June 1978, and at all times relevant to this action, Safeway continued to pay appellant the fixed minimum rent required by the Lease.

Appellant's amended complaint alleged Safeway breached the shopping center lease, acted in bad faith, engaged in unfair competition and interfered with contractual rights. Appellant also demanded a jury trial on all issues. Safeway counterclaimed for damages on the theory of slander of title and tortious interference with contractual relations and business expectancies. The trial court granted Safeway's motion to strike the jury demand and subsequently dismissed the amended complaint and counterclaim. Both parties appealed and the Court of Appeals certified the cause to this Court.

Appellant challenges the trial court's denial of its motion for a jury trial and the dismissal of its amended complaint. In its cross appeal, Safeway challenges the dismissal of its counterclaim. Each issue is discussed separately below.

I. RIGHT TO A JURY TRIAL

The trial court ruled appellant was not entitled to a jury trial, reasoning the issues presented were primarily equitable rather than legal in nature, that the legal issues were only incidental to the equitable issues and that they were not easily separable for submission to a jury. Appellant contends the trial court erred in so ruling for three reasons: first, respondent's motion to strike violated the time requirements of CR 6(a) and (d); second, the relief sought was primarily legal not equitable in nature; and third, a jury trial should have been granted on the legal issues, despite the presence of the equitable issues. We reject appellant's contentions.

A. Timeliness of Respondent's Motion to Strike the Jury

Appellant asserts Safeway's motion to strike the jury violated the time requirements of CR 6(d) which requires notice of written motions to be made at least 5 days in advance of the hearing thereon. It is clear the rule has been violated since Safeway filed the motion on the day of trial. We have previously held, however, that CR 6(d) is not jurisdictional, and that reversal for failure to comply requires a showing of prejudice. Loveless v. Yantis, 82 Wash.2d 754, 759-60, 513 P.2d 1023 (1973); Hockley v. Hargitt, 82 Wash.2d 337, 347, 510 P.2d 1123 (1973); Rivard v. Rivard, 75 Wash.2d 415, 420, 451 P.2d 677 (1969). In the instant case, although appellant objected to the lack of sufficient notice, it presented countervailing oral argument and submitted case authority in support of its position. No request for a continuance was made and the trial court granted a rehearing on the motion late the same afternoon. There was no adequate showing of prejudice. We therefore reject appellant's contention.

B. Propriety of Granting the Motion to Strike the Jury

Appellant contends the trial court erred in striking its motion for a jury trial because the issues presented are primarily legal not equitable in nature, and, alternatively, that a jury trial should have been granted as to the legal issues despite the presence of equitable issues. We do not agree.

The Washington State Constitution, article 1, section 21 provides that the right to a jury trial shall remain inviolate. We have consistently interpreted this constitutional provision as guaranteeing those rights to trial by jury which existed at the time of the adoption of the constitution. In re Marriage of Firchau, 88 Wash.2d 109, 114, 558 P.2d 194 (1977); Watkins v. Siler Logging Co., 9 Wash.2d 703, 116 P.2d 315 (1941). Accordingly, there is a right to a jury trial where the civil action is purely legal in nature. Conversely, where the action is purely equitable in nature, there is no right to a trial by jury. Peters v. Dulien Steel Prod. Inc., 39 Wash.2d 889, 239 P.2d 1055 (1952); Dexter Horton Bldg. v. King County, 10 Wash.2d 186, 116 P.2d 507 (1941); Knudsen v. Patton, 26 Wash.App. 134, 137, 611 P.2d 1354 (1980). The overall nature of the action is determined by considering all the issues raised by all of the pleadings. Seattle v. Pacific States Lumber Co., 166 Wash. 517, 530, 7 P.2d 967 (1932); Santmeyer v. Clemmancs, 147 Wash. 354, 266 P. 148 (1928).

A review of the instant pleadings indicates the action is neither purely legal nor equitable in nature. They present a mixture of legal and equitable issues. In their amended complaint, appellant alleged Safeway breached the Lease, engaged in unfair competition and interfered with contractual relations. As a result thereof, appellant contends it suffered monetary damages and sought by way of relief: (1) a declaration that Safeway had abandoned the Lease by closing the store and removing the fixtures; (2) surrender of the premises to appellant; (3) restoration of the premises to their original condition at Safeway's expense; (4) an accounting by Safeway of its gross sales in 1977 prior to closing its store and payment of the proper percentage rental to appellant; and (5) recovery for any other damage sustained by appellant, including loss of business and percentage rentals during the period Safeway's store was closed.

It is well settled that the construction of a lease is a legal question. As we noted in Durand v. Heney, 33 Wash. 38, 41, 73 P. 775, 776 (1903):

Where (the document) is an enforcible contract, and the ambiguity arises as to the relative responsibilities and duties of the respective parties under the contract, which responsibilities and duties can be determined either by proof of the meaning of the terms used in the contract or by a showing of the circumstances surrounding the parties with reference to the subject-matter of the contract at the time it was entered into, and there is any controversy over such facts, undoubtedly such contract should be submitted to the jury, and its meaning determined by that tribunal by aid of such explanatory testimony.

See Carstens v. Earles, 26 Wash. 676, 67 P. 404 (1901). It is equally clear that...