Olson v. Scholes
| Decision Date | 25 April 1977 |
| Docket Number | No. 3549--I,3549--I |
| Court | Washington Court of Appeals |
| Parties | David L. OLSON, Respondent, v. Robert W. SCHOLES and Judith F. Scholes, his wife, Appellants. |
Hageman, Prout, Kirkland & Coughlin, David T. Kirkland, Seattle, for appellants.
Peter D. Francis, Seattle, for respondent.
This action involves an alleged breach of a written commercial lease and claimed tortious conduct by the lessee.
In January 1970, the defendant-lessee Robert W. Scholes (then a single man) entered into a commercial lease with the plaintiff-lessor Olson. The leased property included a dog kennel, a cattery, and two residences. The defendant was experienced in kennels and kennel management before entering into the lease with the plaintiff and enjoyed a good reputation in the business. 1 After the defendant had operated the kennels for a substantial period of time, he became aware of the physical problems of the premises and that the water and sewer systems did not conform to the respective codes. As a result, 2 years after the initial lease was entered into the parties negotiated a new lease agreement. 2 Included in the new lease agreement were provisions calling for a lower rent and adding a 90-day notice requirement of intent to terminate the lease agreement.
In June of 1973, defendants moved out and subleased to another operator who vacated the premises shortly thereafter. From that point on no kennel business was in operation at that location. After the premises were vacant, the defendant called the Snohomish County Building Department and requested an inspection of the premises. Subsequently, an inspection was carried out by representatives from the Building Department, Health Department, and Fire Marshal's office. Numerous health and electrical code violations were found. It was the decision of the Building and Health Departments and the Fire Marshal's office to not allow the kennel to reopen until the premises were brought into code compliance.
After the property had been vacated and following the subsequent inspections, the defendant-lessees wrote the plaintiff stating that the premises were condemned, that they had moved out, and requested a return of their lease deposit. No. 90-day notice was given the plaintiff.
As a result of the condemnation of the premises and the requisite repairs, plaintiff was unable to lease the premises for over 1 year. Plaintiff also lost the right to continue use of the kennels under the prior zoning requirements and had to apply for a variance. This action was then commenced to recover damages for the alleged breach of the lease and tortious conduct. In addition to the facts already set out, the trial court made the following findings of fact Inter alia:
7. Had the business still been in operation the business would have continued to operate while the premises were being brought up to code. Because the premises were vacant and the business was not operating, it was required that the premises be brought up to code before a license could be issued and someone else could move in to operate the kennels.
8. Plaintiff had a reasonable expectancy of re-renting the premises, and would have been able to rent the premises had not the actions of defendant prevented the continued operation of the kennels without first complying with the aforementioned code requirements. This expectancy was apparent to defendant, who knew that plaintiff wanted to be able to re-lease the premises as a kennel whenever defendant moved out. This interference was intentional. The action of defendant was taken in an attempt to get out from under the ninety day notice requirement in the lease agreement.
9. The report by telephone to the authorities was done while defendant owed the ninety days rent, and while the premises were vacant. The report was made for the express purpose of condemning the business premises.
10. Damage to and loss of personal property other than ordinary wear and tear which resulted from defendant's tenancy is in the amount of $200.
11. Damage to the real estate itself other than and in excess of ordinary wear and tear is in the amount of $650, for the period of defendant's occupancy.
12. Defendant is liable to plaintiff for $900 for rent owing for the ninety day notice period, less the $350 deposit for which defendant is entitled to credit.
13. Defendant is further liable to plaintiff for an additional seven months beyond the ninety day period during which the property was not rentable as a kennel while the repairs were being made. Because some rent could have been obtained at a lesser figure, the reasonable loss of rental income caused by defendant's actions was $175 per month for the seven month period.
14. Because of the lack of continuity of the business in that there was almost a year hiatus the value to plaintiff of the property was reduced by, and plaintiff is thereby damaged by, the sum of $500.
15. Some of the damages to plaintiff were caused by the tortious actions of defendant Robert Scholes. The remainder of the damages were caused by violations of provisions of the lease, and a reasonable attorney's fee which defendant should be required to pay on account of plaintiff's attorney's fees incurred because of breach of the lease is the sum of $400.
Judgment was found for the plaintiff as follows
1. For personal property not
returned to lessor $ 200.00
2. For damage to real property 650.00
3. For 3 months' rent 900.00
4. For tortious interference with
business expectancy 1,225.00
5. For loss of good will (tortious
interference) 500.00
6. For attorney's fees (as to claim
for breach of lease only) 400.00
The defendants appeal.
The questions raised are (1) whether the lessees committed an act of tortious interference with the lessor's business expectancy; (2) whether (a) an implied warranty of habitability extended to this lease, or (b) were the lessees entitled to vacate the premises because of their condition; and (3) whether the lessees breached the lease by violating the lease clause on repairs.
We find that the trial court's findings of fact, insofar as they state substantive facts, are supported by substantial evidence. We will not retry those facts here. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959); Rogers Walla Walla, Inc. v. Ballard, 16 Wash.App. 81, 553 P.2d 1372 (1976).
The lessees, as appellants, have set out as assignments of error the trial court's entry of findings of fact Nos. 7 through 15, the trial court's conclusions of law, and the failure of the trial court to enter 23 proposed findings and conclusions. A broadcast condemnation of each finding and conclusion such as this is of no assistance to an appellate court in ascertaining the contentions raised on appeal. This appeal was pending prior to the effective date of the Rules of Appellate Procedure, and the Court of Appeals Rules on Appeal apply. Under CAROA 43, each error of the trial court was to be 'definitely pointed out in the 'assignments of error' . . .' As stated in Knatvold v. Rydman, 28 Wash.2d 178, 183, 182 P.2d 9, 12 (1947):
The assignments that the trial court erred in making fourteen findings of fact, without any attempt to show wherein the findings were erroneous or lacked evidenciary support, is an invitation to us to search the record and see if we can find any error. It is not our function or duty to search the record for errors, but only to rule as to errors specifically claimed.
See also Malnati v. Ramstead, 50 Wash.2d 105, 309 P.2d 754 (1957); Bristol v. Streibich, 24 Wash.2d 657, 167 P.2d 125 (1946). Rule 10.3(a)(3) of the Rules of Appellate Procedure now provides:
(a) Brief of Appellant or Petitioner. The brief of the appellant or petitioner should contain under appropriate headings and in the order here indicated:
(3) Assignments of Error. A separate concise statement of each error a party contends was made by the trial court, Together with the issues pertaining to the assignments of error.
(Underscoring ours.) The lessees did set forth the issues following the listing of the assignments of error. We would not have been able to answer the issues presented if this had not been done. We will address the contentions set forth by the appellant as the basic problems submitted.
WAS AN ACT OF TORTIOUS INTERFERENCE COMMITTED BY LESSEES
The plaintiff contends that the defendants interfered with the business expectancy of the kennels when they requested an inspection of the kennels by the county authorities. The theory advanced is that stated in Restatement of Torts § 766 (1939), as follows:
(O)ne who, without a privilege to do so, induces or otherwise purposely causes a third person not to
(a) perform a contract with another, or
(b) enter into or continue a business relation with another
is liable to the other for the harm caused thereby.
The tort as defined in the Restatement is divided into two parts: (a) dealing with the cause of action arising when a third person induces a breach of contract, and (b) dealing with the cause of action which arises when a third person induces one person not to enter into a contract with another. The first subsection deals with present relationships, and the second with future relationships. The elements of the tort have been stated as:
(1) the existence of a valid contractual relationship or business expectancy;
(2) knowledge of the relationship or expectancy on the part of the interferor;
(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and
(4) resultant damage to the party whose relationship or expectancy has been disrupted.
See King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974); Scymanski v. Dufault, 80 Wash.2d 77, 491 P.2d 1050 (1971); ...
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