No. 20099-0-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: June 20, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County, No. 99-2-00685-7, Hon. Michael E. Donohue, March 16, 2001, Judgment or order under review.
Counsel for Appellant(s), John W. Harkness III (Appearing Pro Se), 6034 North Shore Road, Newport, WA 99156.
Counsel for Respondent(s), Brad E. Smith, Huppin Ewing Anderson Paul, Ste 500, N 221 Wall St, Spokane, WA 99201.
KURTZ, J.
John Harkness appeals the trial court’s decision finding his stepmother, Dolores Harkness, was not in unlawful detainer of the family home. He also challenges the court’s award of attorney fees to Mrs. Harkness. We affirm the judgment of the trial court that Mrs. Harkness was not in unlawful detainer and its award of attorney fees. We also award attorney fees to Mrs. Harkness on appeal.
FACTS
In January 1990, Jack Harkness quitclaimed ownership of the family home to his son John Harkness, but retained a life estate for himself and continued to live there. Later, Jack Harkness married Dolores Harkness and the parties entered into the lease agreement that is the subject of this lawsuit.
The lease, dated April 21, 1994, was effective only if Mrs. Harkness survived Jack Harkness. The lease provided for a term of 40 years from the death of Jack Harkness or until the death of Mrs. Harkness, with rent in the amount of $1. The lease also provided that:
Lessee hereby covenant[s], promise[s] and agrees to be responsible for payment of all insurance, taxes and general upkeep of the said premises during the term of the lease.
Clerk’s Papers (CP) at 96. Jack Harkness was injured in an accident in May 1998 and died two months later. Legal problems between John Harkness (Mr. Harkness) and Dolores Harkness (Mrs. Harkness) began almost immediately. Mrs. Harkness tendered the $1 rent payment and Mr. Harkness refused to accept it. Mrs. Harkness filed for a protective order against Mr. Harkness.
In August 1998, Mrs. Harkness contacted the Spokane County Treasurer’s office to obtain a refund of property taxes paid for 1996, 1997, and 1998 based on her mistaken belief that she and Jack Harkness qualified for a discount based on their income. The treasurer’s office issued Mrs. Harkness a refund check. Later, the county levied a tax lien on the property for the years 1996, 1997, and 1998 in the amount equal to the refund, plus penalties and interest.
In August 1998, Mrs. Harkness also made a payment for insurance on the property to the agent from whom she had purchased insurance with her late husband. Unbeknownst to Mrs. Harkness, Mr. Harkness had changed the insurance on the property and the payment made by Mrs. Harkness was applied to Mr. Harkness’s personal residence. Mr. Harkness later wrote Mrs. Harkness a personal check for this amount.
In February 1999, Mr. Harkness filed an action seeking a determination as to the validity of the lease or, in the alternative, rescission of the lease. This action was resolved by a stipulated order. As part of the stipulated order, the document in question was deemed to be a residential lease whose terms were binding as written. Otherwise, the lease was to be governed by the Landlord-Tenant Act. Significantly, ‘[a]ny confusion or disagreement regarding the interpretation of the express terms contained in the lease shall be resolved by hearing before the ex parte Court Commissioner of the Spokane County Superior Court after 15 days notice.’ CP at 89. The stipulated order also stated that:
So long as DOLORES HARKNESS has made arrangements with the Spokane County Treasurer’s office for the payment of past due taxes in full with penalties and interest associated therewith and associated with the mistaken refund, the lease shall be deemed current and not in default, so long as her actions shall not subject the property to foreclosure.
CP at 90.
In January 2000, Mrs. Harkness was served with a ten-day notice (`January Notice’) to comply with the terms of the lease. The January Notice alleged that she was in default for: (1) failure to pay 1997, 1998, and 1999 property taxes; (2) failure to pay insurance premiums for 1998, 1999, and 2000; and (3) failure to make and/or pay for alleged repairs falling under the general upkeep provisions of the lease. The amount due and payable was $3,000.66. Mrs. Harkness was served with a second ten-day notice in March 2000 (`March Notice’), alleging she was in default with the terms of the lease to `not let or underlet the whole or any part of the said premises nor assign this lease, or any interest therein, without the written consent of the said lessor.’ Exhibit P-12. Mrs. Harkness was served with a third ten-day notice to perform and comply with the terms of her lease in June 2000 (`June Notice’). This notice alleged she was in default for:
(1) failure to pay property taxes for the first half of 2000, and (2) failure to pay the utility bill. On June 30, 2000, Mr. Harkness commenced this lawsuit as an unlawful detainer action. A hearing was held on Mr. Harkness’s motion to show cause why the court should not issue a writ of restitution. The court heard oral testimony from Mr. Harkness and Mrs. Harkness, and considered the affidavits of Brad E. Smith, David Thorne, Gary Pierce, and Julie Hille.
At the conclusion of the hearing, the court determined that Mr. Harkness was not entitled to a writ of restitution and that his unlawful detainer action should be dismissed because he had provided insufficient notice to Mrs. Harkness of the property taxes and insurance premiums that were due and payable. The court further held that the lease had commenced upon the death of Jack Harkness-July 7, 1998-and that the `base condition’ for purposes of evaluating the necessary repairs would be evaluated from this date. CP at 200. Based on the evidence presented, the court concluded that most if not all of the alleged repairs listed in the January Notice predated the time of the lease. Finally, the court concluded that Mrs. Harkness was not `letting’ the premises by having her son live with her. CP at 200. Additionally, the court concluded that Mrs. Harkness was the prevailing party and awarded her attorney fees in the amount of $4,970.50 pursuant to RCW 59.18.290(2). On appeal, Mr. Harkness challenges the court’s finding that he did not give proper notice that the property taxes and insurance premiums were due and payable. Mr. Harkness also challenges the court’s determination that Mrs. Harkness was not `letting’ the premises to her son and that general upkeep should be determined as of Jack Harkness’s death. He also challenges the court’s award of attorney fees to Mrs. Harkness. Mrs. Harkness requests an award of attorney fees on appeal.
ANALYSIS
Standard of Review.
A show cause hearing is a summary proceeding to determine the issue of possession pending a lawsuit. Carlstrom v. Hanline, 98 Wn. App. 780, 788, 990 P.2d 986 (2000) (citing Meadow Park Garden Assocs. v. Canley, 54 Wn. App. 371, 375, 773 P.2d 875 (1989)). RCW 59.18.380 provides that the court shall examine the parties and witnesses and enter an order directing the issuance of a writ of restitution if it appears that the plaintiff has the right to be restored to possession of the property. Mr. Harkness challenges several of the court’s findings of fact. A trial court’s findings of fact are reviewed for substantial evidence. Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). Substantial evidence is evidence of sufficient quantity to persuade a reasonable fact finder of the truth of the declared premise. Id. An appellate court reviews issues of law de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991).
Property Taxes.
Under the terms of the stipulated order, Mrs. Harkness was to make arrangements with the treasurer’s office to pay the back due taxes, but that `the lease shall be deemed current and not in default, so long as her actions shall not subject the property to foreclosure.’ CP at 90.
At the hearing, Mr. Harkness testified that there were no property taxes due on the property. The majority of the property taxes were paid on February 1, 2000, within the ten-day notice period. Apparently the remainder of the tax liability was paid on July 3, 2000. Significantly, Mr. Harkness testified that he contacted the auditor’s office in 2000 and asked that he be made the addressee for tax purposes. Mr. Harkness could provide no documentation indicating that Mrs. Harkness was served with a copy of the tax notices prior to receiving the January Notice. Mrs. Harkness testified that she did not know she was delinquent on the back taxes but she caught up on the taxes after receiving the January Notice. She also stated that she never received notices that the taxes were due and owing and that the treasurer’s office refused her request to change the mailing address to her address. Mrs. Harkness was able to obtain some statements by going down to the treasurer’s office. Exhibit P-2 shows that she was given a copy of the tax statements over the counter on March 21, 2000. Mrs. Harkness also testified that there are two tax parcels and there have been times when taxes for one parcel were paid but not the other. Substantial evidence exists to support the court’s finding that Mr. Harkness failed to give proper notice of the property taxes due and payable on the property. Because Mr. Harkness failed to give proper notice, the court correctly concluded that the unpaid taxes could not reasonably form the basis of the ten-day notice to pay the taxes or vacate the property. Insurance.
The court found that Mr. Harkness failed to give Mrs. Harkness proper notice of insurance that was due and payable and that nonpayment of insurance could not form a reasonable basis for the ten-day pay or vacate notices. Mrs. Harkness testified that she and her husband had insurance through Pemco, but that after her husband died she was informed that Mr. Harkness had changed the insurance. At one point, Mrs. Harkness sent a check for insurance that was applied to the wrong property. Mrs. Harkness testified that prior to the January Notice, she received no statement indicating that insurance was due on the property. Significantly, Mr. Harkness testified that he did not know whether he had ever provided insurance statements to Mrs. Harkness prior to the January Notice.
Moreover, Mr. Harkness concedes that Mrs. Harkness paid the unpaid insurance premiums on April 13, 2000. Substantial evidence exists to support the court’s finding that Mr. Harkness failed to give Mrs. Harkness proper notice of unpaid insurance premiums. The nonpayment of insurance could not form a reasonable basis for the ten-day notice. Subletting. The March Notice demanded that Mrs. Harkness comply with the terms of the lease where she agreed `to not let or underlet the whole or any part of the said premises nor assign this lease, or any interest therein, without the written consent of the said lessor.’ CP at 96. The court found that Mrs. Harkness had one or more of her sons residing with her but that this did not constitute `letting’ or `subletting.’ CP at 200. Based on this finding, the court concluded that letting or subletting could not form a reasonable basis for the March Notice. Mrs. Harkness testified that her son David had lived with her for a time; but after David moved out, the social worker told Mrs. Harkness that she had to have somebody live with her so her son Kenneth moved in. Neither David nor Kenneth paid rent and Mrs. Harkness had no written agreement with either of them. Mrs. Harkness explained that when her sons lived with her, they helped maintain the premises and watched her because she fell down `every so often.’ Report of Proceedings at 74. Mrs. Harkness also submitted the declaration of Julie Hille, a clinical case manager at Spokane Mental Health. Ms. Hille stated that it was her opinion that Mrs. Harkness would benefit from having her son live with her at home because it lessened her anxiety and provided assistance with the management of her medications and physical health. Mr. Harkness failed to present any evidence demonstrating that Mrs. Harkness had let, underlet, or assigned an interest in the lease to either of her sons. Based on this evidence, the court correctly concluded that the presence of Mrs. Harkness’s son could not form a reasonable basis for the ten-day notice. Repairs. In the January Notice, Mr. Harkness submitted a list of alleged damage and repairs related to the property and he demanded that Mrs. Harkness make repairs within 10 days. However, at the hearing, Mr. Harkness offered no testimony as to the condition of the property between the commencement of the lease in July 1998 and the service of the January Notice. In contrast, Mrs. Harkness testified at length regarding the condition of the property explaining that virtually every defect listed in the January Notice preexisted the commencement of the lease.
After hearing the evidence, the court concluded that the duty to provide general upkeep would be determined with reference to the `base condition’ of the premises at the commencement of the lease on July 7, 1998. CP at 200. The court then concluded there was a lack of evidence that the alleged damage or repairs listed in the January Notice preexisted the commencement of the lease. As a result, the court concluded that the alleged damage or repairs could not reasonably form the basis of the ten-day notice. Additionally, the court concluded that the `Motion to Determine Interpretation of `General Upkeep’ Under Lease will be heard at a later dated [sic] to be set by this Court.’ CP at 201. To some extent, both parties misunderstand the court’s decision. After evaluating the evidence, the court decided the general upkeep issue based on the threshold finding that there was a lack of evidence as to whether the alleged damage or repairs preexisted the commencement of the lease.
The testimony supports the court’s finding on this crucial threshold question. Because the court found a lack of evidence as to the `base condition’ of the premises, the court elected not to address the issue as to which party was responsible for the repairs and reserved questions relating to the `General Upkeep’ clause for a later proceeding. Attorney Fees. The trial court awarded attorney fees to Mrs. Harkness pursuant to RCW 59.18.290(2), which reads as follows:
It shall be unlawful for the tenant to hold over in the premises or exclude the landlord therefrom after the termination of the rental agreement except under a valid court order so authorizing. Any landlord so deprived of possession of premises in violation of this section may recover possession of the property and damages sustained by him, and the prevailing party may recover his costs of suit or arbitration and reasonable attorney’s fees.
Relying on Soper v. Clibborn, 31 Wn. App. 767, 644 P.2d 738 (1982), Mr. Harkness maintains an award of fees is not authorized unless the landlord was excluded from the premises or the tenant was holding over after the termination of the lease. Mr. Harkness is mistaken as this line of reasoning was rejected in Soper. See id. at 769. The Soper court concluded that ‘[t]he argument that an unlawful detainer action in which the landlord loses is really not an unlawful detainer action is too strained to warrant serious consideration.’ Id.
Mr. Harkness also asserts the award of attorney fees was unreasonable because the court awarded costs for pretrial depositions and attorney fees incurred prior to the filing of the unlawful detainer complaint. The amount of fees is not unreasonable. The court did not award costs for pretrial depositions; however, the attorney’s time preparing for and attending the depositions is recoverable. Because the service and filing of a notice is a precondition to an unlawful detainer action, the court did not err by awarding attorney fees incurred after the notice was served. Mrs. Harkness is also entitled to an award of fees on appeal. A party entitled to attorney fees under RCW 59.18.290 at trial is also entitled to attorney fees under this statute on appeal. Sarvis v. Land Res., Inc., 62 Wn. App. 888, 894, 815 P.2d 840 (1991).
Conclusion.
We affirm the judgment of the trial court that Mrs. Harkness was not in unlawful detainer and we affirm its award of attorney fees in the amount of $4,970.50. We award Mrs. Harkness attorney fees on appeal in an amount determined by a commissioner of this court. RAP 18.1.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN and SCHULTHEIS, JJ., concur.