No. 58286-1-I.The Court of Appeals of Washington, Division One.
March 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-37228-3, Christopher A. Washington, J., entered April 28, 2006.
Reversed and remanded by unpublished per curiam opinion.
Counsel for Appellant(s), Glen Robert Clausing, Attorney at Law, Bellevue, WA, 98004-5808.
Counsel for Respondent(s), Dean Gordon Von Kallenbach, Young deNormandie PC, Seattle, WA, 98101-2985.
PER CURIAM.
In an action for breach of a tenant’s covenant to maintain leased premises in good condition, ordinary wear and tear excepted, a landlord has the burden to show the premises were damaged beyond ordinary wear and tear.[1] Moreover, proof of such damage requires a showing of the condition of the premises at the beginning of the term of the lease. Because there are genuine issues of material fact on these points, we reverse.
Signal Electric, Inc. manufactures and installs traffic and streetlight systems. In 1973, Signal entered into a ground lease for real property in Kent, Washington. Signal constructed a building for its business on the premises and occupied it in 1974.
In 1990, Signal entered into a commercial lease for the premises with the estates of Lavern Guthmiller and Christine Sullivan. Ownership of the property later passed to the Lavern R. Guthmiller Testamentary Trust. In pertinent part, the lease provided:
. . .
11. REPAIRS AND MAINTENANCE. Premises have been inspected and are accepted by Tenant in their present condition, Tenant acknowledging that such Premises are in good, sanitary order, condition and repair. Tenant shall, at its own expense and at all times, keep the premises neat, clean, dry and in a sanitary condition. . . . Tenant shall permit no waste damage or injury to the premises; keep all drain pipes free and open; protect water, heating, gas and other pipes to prevent freezing or clogging; repair all leaks and damage caused by leaks; replace all glass in windows and doors of the Premises which may become cracked or broken. . . . Tenant shall make such repairs as necessary to maintain the Premises in as good condition as they now are, reasonable use and wear. . . . excepted.
. . .
24. SURRENDER OF PREMISES; . . . Upon expiration of the term, Tenant shall surrender to Landlord the Premises and all Tenant improvements and alterations in good condition, except for ordinary wear and tear. . . .[2]
In June 2002, Signal vacated the premises. In November 2004, the Trust sued Signal, alleging that it had breached the lease by failing “to provide repairs or maintain the premises in as good a condition as they were when the Lease commenced, . . . reasonable wear and tear excepted.” The trial court dismissed the claim on summary judgment and awarded Signal its attorney fees and costs under the terms of the lease.
The Trust appeals.
The Trust contends summary judgment was improper because there are genuine issues of material fact. We agree.
We review a summary judgment order de novo, performing the same inquiry as the trial court.[3] We consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party.[4] Summary judgment is proper only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c).
The parties agree that to carry its burden on summary judgment, the Trust had to allege facts showing damage to the premises during the lease term that exceeded ordinary wear and tear. It carried that burden.
In opposing summary judgment, the Trust relied primarily on the declaration of Alan Guthmiller. He alleged he was employed by Signal from 1986 to 1995 and worked at the Kent building during that time. Guthmiller submitted 25 photographs which he alleged depicted “the condition of the property when Signal . . . left the property in 2002 and will be contrasted with the condition of the property I recall observing in and around July 1990.”[5] His declaration described the condition depicted in each photograph, including various spoils and material left around the premises, a plugged catch basin, damage to the building exterior and doors, a broken railing, a fence in disrepair, a sink held up by a pick axe handle, and water leaks. Guthmiller admitted that “certain of the conditions existed in July, 1990, but additional damage has occurred during the 1990 Lease.” He then identified the preexisting conditions as follows:
A. The landscape area south of the fence was not maintained at all. A parking area was installed without permission in that area.
B. There was some damage to the fence [in 1990], but there has been substantially more damage to the fence since 1990.
C. There was some damage to the insulation in the walls of the warehouse, but such damage has increased since 1990.
Guthmiller specifically alleged that “[t]he remaining items in the 25 photographs all occurred after July, 1990.” This evidence is sufficient to demonstrate genuine issues of material fact, precluding summary judgment.
Signal contends Guthmiller’s allegations and photographs fail to establish a “baseline” for the condition of the property in 1990 and are merely “opinions and conclusions.” We disagree. Guthmiller’s allegations identify specific conditions that were present at the end of the lease, but were not present in 1990. The allegations are factual, based on personal knowledge, and are not mere opinions or conclusions.
Signal argues in the alternative that even if the Trust demonstrated damage to the property occurring during the period of the lease, summary judgment was still proper because there was no genuine issue of fact as to whether the damage exceeded the “ordinary wear and tear” allowed under the lease. We are not persuaded.
“The expression `reasonable wear,’ `ordinary wear and tear’ and similar phrases apply more naturally to the gradual deterioration resulting from use, lapse of time, and to a certain extent the operation of the elements.”[6] Guthmiller alleged that some of the conditions on the property, including holes in the walls and damage to the building and fence from trucks or forklifts, were not due to gradual deterioration, operation of the elements, or the lapse of time. In addition, Signal’s Vice President, Jerry Vosberg, conceded in his declaration that fence posts had been “bent or misaligned due to . . . being backed into by trucks,” the shop doors had been damaged by trucks and forklifts, there were holes in the warehouse and office walls, and that the building’s metal skin “had acquired some dents from trucks and equipment.” Given our supreme court’s interpretation of “ordinary wear and tear,” and viewing the evidence in a light most favorable to the Trust, there are genuine issues of fact as to whether any of the alleged damage exceeded “ordinary wear and tear.”
Finally, Signal contends summary judgment was proper because the lease required the Trust to perform repairs arising from normal wear and tear, and the Trust “did not establish that it performed anything other than deferred repair and maintenance . . . after Signal left the property.” Signal concludes that this was “an essential element of [the Trust’s] case.” But Signal points to nothing in the lease requiring the Trust to perform maintenance during the period of the lease. Nor does it establish any basis for concluding that proof of such maintenance is an essential element of the Trust’s breach of contract action.
In short, viewing the evidence in a light most favorable to the non-moving party, we conclude that genuine issues of material fact exist. Summary judgment and the award of fees and costs were incorrect.
We reverse and remand for further proceedings.
(1993).
(1982).
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