Ruddach v. Don Johnston Ford, Inc.

• Decision Date: 06 May 1982
• Docket Number: No. 47532-6,47532-6
• Citation: 97 Wn.2d 277,644 P.2d 671
• Parties: Harry S. RUDDACH and Patricia Grahn, Personal Representative of the Estate of Eileen Ruddach, Petitioners, v. DON JOHNSTON FORD, INC., formerly Ruddach Ford, Inc., and Bi-Rite, Inc., Respondents.
• Court: Washington Supreme Court

Page 277

97 Wn.2d 277

644 P.2d 671

Harry S. RUDDACH and Patricia Grahn, Personal Representative of the Estate of Eileen Ruddach, Petitioners, v. DON JOHNSTON FORD, INC., formerly Ruddach Ford, Inc., and Bi-Rite, Inc., Respondents.

No. 47532-6.

Supreme Court of Washington, En Banc.

May 6, 1982.

Stewart & Thomas, Inc., P. S., James M. Stewart, Montesano, for petitioners.

Stritmatter & Stritmatter, Paul L. Stritmatter, Hoquiam, for respondents.

DORE, Justice.

Prior owner and landlord Ruddach brought suit against tenants Don Johnston Ford, Inc. upon a 10-year lease. Such lease provided, among other things:

lessee shall keep the buildings on said premises in good repair and to maintain said premises at all times during the terms hereof...

and

Lessee agrees to quit and surrender said premises to the lessor at the end of the term of this lease or any extension thereof in as good condition as the same now are, reasonable use, wear and tear excepted.

In Superior Court, the principal items in dispute were the costs of a new heating system and of various lighting fixtures and electrical switches which were either missing or nonfunctional when the lease terminated. The trial judge awarded the landlord a judgment for damages in the amount of $12,869. The Court of Appeals affirmed the findings and conclusions of the trial court but reduced the damage award to $5,000, holding that under a written supplemental agreement between Ruddach and the new buyer, his exposure for repairs was only $5,000. The appellate court reasoned that if the former owner received more than $5,000 it would be receiving a windfall for the difference between $12,869 and $5,000. Ruddach appeals the Court of Appeals judgment reduction.

The leased premises consisted of a downtown Aberdeen building constructed in 1948 to house a car sales and service business. At the time of trial, plaintiffs were the owners of both the building and the lessor's interest in a lease to defendant Don Johnston Ford, Inc., the term of which ended December 31, 1977. Defendant Bi-Rite, Inc. had subleased the premises from Johnston. For clarification, both Don Johnston Ford, Inc. and Bi-Rite, Inc. are "tenants", and Ruddach is both "landlord" and "seller".

In 1977, with the lease about to expire, the landlord decided to sell the building and reached an agreement with Huffman Motors, Inc. for its purchase, with possession to begin at the end of the lease term. Buyer Huffman was preparing to occupy the premises when he discovered that many of the lighting fixtures were missing and the heating system was inoperable because of damage to the boiler. At that time, Huffman also learned that the tenants were intending to remove some of the improvements and fixtures that he understood were included in the purchase of the property. Huffman had added to the earnest money agreement the words "including hoist and compressor," which items seller agreed should remain on the premises. The tenants, however, claimed such items under the terms of their lease and made tentative plans to remove them.

With the real estate deal for the sale of the building and business deteriorating, the seller decided to make some concessions to purchaser Huffman in order to save the sale, and entered into a supplemental agreement designated "Ruddach-Huffman Real Estate Sale". The supplemental agreement was not between the landlord and tenants, but rather between the landlord/seller and the new purchaser, Huffman Motors, Inc.

The supplemental agreement, in part, alluded to the concerns of the purchaser as to whether he would get delivery on what he bought, by reciting that:

WHEREAS, there may be a dispute as to performance of the lease by the lessee and that it is indicated lessee may attempt to remove fixtures that should properly be part of the Real Estate; and

WHEREAS, purchasers are intending to grant permission to the lessees to continue in possession two months after January 1st, 1978; and

WHEREAS, the seller and purchaser do not presently know to what extent lessees may remove or attempt to remove such fixtures; and

WHEREAS, purchaser does not desire to be involved in a suit against lessee or incur expenses of such action.

In the supplemental agreement, the seller undertook obligations to the purchaser, as set forth in pertinent part as follows:

IT IS MUTUALLY AGREED as follows:

1. That the Contract will be signed and down payment will be promptly paid and effective as of January 1st, 1978, purchasers will be considered in possession.

2. Seller retains the right to enforce the terms of the lease effective January 1st, 1968 and extended December 30, 1971 with termination date of December 31st, 1977 against the lessor.

3. Seller will take legal steps necessary to restrain the removal of the hoist and compressor, if lessee attempts to remove the same.

4. That it is agreed that the following will be repaired by Purchaser at the most reasonable cost and an itemized list of materials and repairs will be furnished Seller of the following items:

(a) Boiler and heating system to be made operable.

(b) Overhead doors to be repaired into a safe and operable condition.

(c) Ceiling tile to be repaired in damaged area in show room above Jefferson Street entrance door.

(d) Repair light fixtures that are inoperable inside (excluding lights, tubes and bulbs which are at Purchaser's account) and outside.

(e) Cleaning up and placing exhaust system in operable condition.

(f) Repair damage to fence next to alley.

(g) Eight hoists will be made operable.

When these repairs are completed and an itemized accounting furnished, Seller and Purchaser will share costs 50-50; provided that in no event shall the Seller be responsible for an amount in excess of $5,000.00 for his share.

5. Seller will enforce the terms of the lease against lessee including the seven items set out above. That from the proceeds of any judgment received the costs, including attorney's fees and the monies expended as above determined on a 50-50 basis, shall first be deducted.

Subsequently, pursuant to such supplemental agreement, the seller successfully initiated action in the Superior Court for Grays Harbor County to collect damages under the terms of the lease against the tenants. Judgment was entered in the amount of $12,869, as previously related. Based on this record, we agree with the Court of Appeals that the trial court correctly found that the tenants had damaged the leased premises in the amount of $12,869. We next must determine whether it also properly reduced such judgment to $5,000.

We turn first to the issue of whether the Court of Appeals erred in considering the supplemental agreement as a limitation on liability when it was not mentioned in the findings of the lower court.

Issues not raised in the trial court will not be considered for the first time on appeal. Brown v. Safeway...