Robert K. Hall, , LLC v. Feigenbaum

• Decision Date: 13 January 2014
• Docket Number: Nos. 68727–1–I, 68927–4–I.,s. 68727–1–I, 68927–4–I.
• Citation: 319 P.3d 61,178 Wash.App. 811
• Court: Washington Court of Appeals
• Parties: Robert K. HALL, a single man, and Daylight Properties, LLC, a Washington limited liability company, Respondents, v. Matthew FEIGENBAUM and Jane Doe Feigenbaum, husband and wife, and the marital community comprised thereof, Appellants.

178 Wash.App. 811

319 P.3d 61

Robert K. HALL, a single man, and Daylight Properties, LLC, a Washington limited liability company, Respondents,

v.Matthew FEIGENBAUM and Jane Doe Feigenbaum, husband and wife, and the marital community comprised thereof, Appellants.

Nos. 68727–1–I, 68927–4–I.

Court of Appeals of Washington, Division 1.

Jan. 13, 2014.

Douglas Kevin Robertson, Belcher Swanson Law Firm PLLC, Bellingham, WA, for Appellant.

Matthew Feigenbaum, (Appearing Pro Se), Woodinville, WA, for Respondent.

Mark Stephen Davidson, Williams Kastner & Gibbs PLLC, Seattle, WA, for Appellant/Cross–Respondent.

Douglas Kevin Robertson, Belcher Swanson Law Firm PLLC, Bellingham, WA, for Respondent/Cross–Appellant.

LEACH, C.J.

¶ 1 In this commercial unlawful detainer action, Matthew Feigenbaum appeals multiple trial court orders, based primarily upon allegations that Robert Hall failed to comply with the notice requirements of the parties' lease and applicable statutes. Because Hall complied with these notice requirements and Feigenbaum does not otherwise show reversible error, we affirm and award Hall attorney fees incurred on appeal.

FACTS

¶ 2 In 2003, Matthew Feigenbaum entered into a commercial lease with Robert K. Hall to operate a nightclub (premises). The lease provided that Feigenbaum's failure “to keep and perform any of the covenants and agreements [that] continues for twenty (20) days after written notice from Lessor” would entitle Hall to either terminate and reenter or continue the lease and sublet the space. The lease specified that “[a]ny notice required to be given ... to the Lessee” would use the address of the premises or “such other address as either party may designate to the other in writing.”

¶ 3 At some point, Feigenbaum stopped operating the nightclub.¹ He did not pay rent for September and October 2010. On November 5, 2010, Hall served Feigenbaum with a three-day notice to pay or vacate by posting and mailing to the premises. On December 1, Hall commenced an unlawful detainer action by filing a summons and complaint and secured ex parte a temporary restraining order and an order to show cause why a writ of restitution should not be issued. The order restrained Feigenbaum from removing property from the premises but did not restrict Feigenbaum's access to them and did not require that Hall post a bond. The return date for both orders was December 17.

¶ 4 Between December 1 and 3, Hall made six unsuccessful attempts to personally serve Feigenbaum with the summons and complaint. After a court commissioner entered an ex parte order allowing service by posting and mailing, Hall mailed the pleadings to the premises on December 6 and posted them at the premises on December 7. Feigenbaum received the pleadings on December 9.

¶ 5 The court granted Hall's motion for a preliminary injunction, barring Feigenbaum from removing personal property from the premises. The injunction did not require a bond. The court ordered Feigenbaum to pay $14,400 into the court's registry immediately for unpaid rent and to deposit future rent moneys into the court's registry as they came due. Feigenbaum deposited the $14,400 but did not pay January's rent. On January 7, 2011, the trial court found that “no monthly rent payment currently due has been timely paid to the registry of the court” and entered an order for writ of restitution. Finding that Feigenbaum was properly served and received adequate notice, the court denied Feigenbaum's motion to dismiss for lack of jurisdiction. The court ordered that $12,700 of the funds held in the court's registry be released to Hall.

¶ 6 On August 30, 2011, Hall relet the premises to a new tenant. The new tenant's lease provided for rent lower than the monthly rent that Feigenbaum paid.

¶ 7 On January 9, 2012, Feigenbaum filed a motion asking that the trial court clarify whether the court had converted the unlawful detainer action into an ordinary civil action. On February 10, 2012, the court entered an order stating that it had done so.

¶ 8 On April 13, 2012, the court granted Hall summary judgment for $136,809.29. The judgment included rent through December 31, 2011, decreased rent from January 1, 2012, to August 31, 2013, and costs related to mitigation and cleaning. On July 2, 2012, the court awarded Hall costs and reasonable attorney fees totaling $43,000.00, bringing the final judgment to $179,807.29. Feigenbaum appeals.

ANALYSIS

Waiver of Certain Issues on Appeal

¶ 9 Feigenbaum appealed a number of the trial court's orders in this lengthy litigation but did not address them in his opening brief. We deem an issue not briefed to be waived.² We decline to review these orders. Moreover, although Feigenbaum assigns error on appeal to the trial court's issuance of the temporary restraining order and preliminary injunction, he did not raise the associated issues below. An appellate court “may refuse to review any claim of error which was not raised in the trial court.” ³ Consequently, we decline to review them here.

Unlawful Detainer Actions Generally

¶ 10 An unlawful detainer action brought under RCW 59.12.030 is a summary proceeding designed to enable the recovery of possession of leased property.⁴ “The action is a narrow one, limited to the question of possession and related issues such as restitution of the premises and rent.” ⁵ Due to the summary nature of the action, a trial court generally does not permit the assertion of counterclaims that are not “ ‘based on facts which excuse a tenant's breach.’ ” ⁶ The civil rules are the rules of practice for unlawful detainer actions,⁷ but when the civil rules conflict with the unlawful detainer statute, the statute, as a “special proceeding,” controls.⁸ Washington courts require strict compliance with the time and manner requirements for unlawful detainer actions ⁹ and strictly construe them in favor of the tenant.¹⁰ The superior court has jurisdiction over unlawful detainer actions.¹¹ The state constitution vests the superior court with broad authority over real estate disputes, and the unlawful detainer statute explicitly gives jurisdiction over unlawful detainer actionsto the superior court.¹² This jurisdiction “remains constant regardless of procedural missteps by the parties,” ¹³ but a party filing an action after improper notice “ ‘may not maintain such action or avail itself of the superior court's jurisdiction.’ ” ¹⁴

Sufficiency of Service and Notice

¶ 11 A challenge to the adequacy of notice presents a mixed question of law and fact,¹⁵ which we review de novo.¹⁶

¶ 12 RCW 59.12.040 provides that

[a]ny notice provided for in this chapter shall be served either (1) by delivering a copy personally to the person entitled thereto; or (2) if he or she be absent from the premises unlawfully held, by leaving there a copy, with some person of suitable age and discretion, and sending a copy through the mail addressed to the person entitled thereto at his or her place of residence; or (3) if the person to be notified be a tenant, or an unlawful holder of premises, and his or her place of residence is not known, or if a person of suitable age and discretion there cannot be found then by affixing a copy of the notice in a conspicuous place on the premises unlawfully held, and also delivering a copy to a person there residing, if such a person can be found, and also sending a copy through the mail addressed to the tenant, or unlawful occupant, at the place where the premises unlawfully held are situated.

¶ 13 The purpose of the notice is to give a tenant “ ‘at least one opportunity to correct a breach before forfeiture of a lease under the accelerated restitution provisions of RCW 59.12.’ ” ¹⁷ Service by mail adds an additional day to the notice requirement; therefore, when a landlord serves by mail, a tenant is not guilty of unlawful detainer until four days after service.¹⁸

¶ 14 The lease required that “any notice required to be given” to Feigenbaum be sent to the premises. In case of default, the lease provided for 20 days' notice before the start of any legal action. On November 5, 2010, Hall served Feigenbaum with the 3–day notice to pay or vacate pursuant to RCW 59.12.040(3), affixing and then mailing a copy of the notice to the premises. Hall filed the eviction summons and complaint on December 1, 2010: over 20 days after posting and mailing the notice to pay rent or vacate.

¶ 15 Hall knew the nightclub was no longer operating, but Feigenbaum did not change his address for lease notice purposes, as required by the lease. The repeated use of the word “or” in RCW 59.12.040 implies that (1), (2), and (3) are equal alternatives for notice under chapter 59.12 RCW, with alternative (3) a logical choice when a plaintiff does not know a defendant's home address.¹⁹ Feigenbaum argues that Hall knew his home address and so did not comply with RCW 59.12.040. However, Feigenbaum offers no evidence to support this assertion and does not assert that he provided Hall with a writtennotice of a changed address for receiving written notices, pursuant to the lease. At best, Feigenbaum raises a factual dispute that the trial court resolved in favor of Hall. Substantial evidence supports the trial court's findings.

¶ 16 Feigenbaum also argues that Hall's service of a 3–day notice to pay or vacate, when the lease required 20 days' notice of default before a legal action could be filed, invalidated service and precluded the trial court from obtaining personal or subject matter jurisdiction. He relies on Community Investments, Ltd. v. Safeway Stores, Inc.,²⁰ where the plaintiff landlord served the commercial tenant with a 10–day notice when the lease required 20 days' notice to cure any default. This reliance is misplaced. In Community Investments, what the court found improper was not the form of the notice but the insufficient waiting period: the landlord commenced a legal action 19 days after giving notice.²¹

¶ 17 First Union Management, Inc. v....