No. 48134-7-I.The Court of Appeals of Washington, Division One.
Filed: December 23, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 002297840, Hon. Catherine Shaffer, January 18, 2001, Judgment or order under review.
Counsel for Appellant(s), Rikki J. Leeson (Appearing Pro Se), P.O. Box 23114, Seattle, WA 98102.
Counsel for Respondent(s), James E. Fearn Jr., 120 6th Ave N, Seattle, WA 98109-5003.
Marya A. Gingrey, 1509 E Mercer St. Ste 204, Seattle, WA 98112.
Donald S. Means, Attorney At Law, 120 6th Ave N, Seattle, WA 98109-5003.
PER CURIAM.
Rikki Leeson appeals the judgment against him in an unlawful detainer action, contending that his landlord, the Seattle Housing Authority (SHA), failed to establish just cause for eviction under state statute and city ordinance, and that the trial court may not have had personal jurisdiction over him due to insufficient service of process. We affirm.
FACTS
The trial court’s findings of fact reveal the following. Since 1996, Rikki Leeson was a tenant of the Roxbury House, a low income apartment operated by the Seattle Housing Authority (SHA). During the spring of 2000, management received complaints of odors and insects in the hallway outside of apartment 211, where Leeson lived. An inspection revealed severe sanitation and cockroach problems inside the unit.
On May 10, 2000, SHA served Leeson with written notice that the condition of his apartment placed him in breach of his lease, and informing him that he had ten days to remedy the condition or vacate (10-day notice). The notice also stated that an inspection was scheduled for May 22. That inspection did not occur, apparently because SHA could not enter Leeson’s apartment. As a result, SHA issued a second 10-day notice on May 24, demanding that Leeson comply or vacate and informing him that an inspection was scheduled for June 2.
It is unclear what occurred on June 2, but the record indicates that in July or August 2000, Leeson and SHA reached an agreement where Leeson would move to apartment 718 of the Roxbury House to accommodate renovations being made on the second floor of the building. Shortly after Leeson moved, SHA representatives observed filthy conditions throughout apartment 211.
On August 21 or 22, SHA personnel were dispatched to apartment 718 in response to a fire in Leeson’s kitchen. Upon entering the unit, they again observed a large number of cockroaches, unsanitary conditions, and a foul smell. On September 12, based on these observations as well as complaints from neighbors, SHA served Leeson with a third 10-day notice to comply or vacate. On September 22, SHA attempted to enter apartment 718 to perform a prescheduled inspection, but Leeson attempted to bar entry by refusing to answer the door and by taping the doorway shut. When they eventually gained entry, SHA noted little improvement in the apartment’s condition.
On September 29, SHA notified Leeson in writing that it was terminating his lease effective October 31. When Leeson did not vacate the premises, SHA commenced an unlawful detainer action. After a four day bench trial, the trial court found just cause for evicting Leeson and issued a writ of restitution.
ANALYSIS
An unlawful detainer action under chapter 59.12 RCW is a summary proceeding designed primarily to facilitate recovery of possession of real property and incidentally related issues such as rent.[1] Relief under the unlawful detainer statute requires: (1) the tenant’s breach; (2) notice to the tenant of the existence of a breach together with an opportunity to correct; and (3) failure by the tenant to correct the breach.[2] In addition, the City of Seattle’s just cause eviction ordinance, SMC 22.206.160(C), governs here, providing additional procedural protections.
I. Sufficiency of the Evidence
Leeson contends the evidence was insufficient to support the trial court’s findings and judgment, arguing that he never received two of the three 10-day notices, that he was never in material breach of the lease because his apartment was not unsanitary, the cockroach problem was not caused by him, and because he timely cured the unsanitary conditions in his apartment. But neither party has provided a full verbatim report of proceedings of the trial, which contains testimony pertinent to each of these factual issues.[3] The party seeking review has the burden of perfecting the record so that the reviewing court has before it all of the relevant evidence.[4] An insufficient record on appeal precludes review of the assigned error.[5] Moreover, absent a verbatim report of proceedings of the relevant hearings, this court must assume that the evidence sustained the court’s findings.[6] Thus, the trial court’s findings regarding the 10-day notices, Leeson’s breach of the lease, the cockroach problem, and his failure to cure, are verities on appeal. Our review is then limited to a determination of whether the findings support the unlawful detainer judgment.[7]
The trial court concluded there was just cause for evicting Leeson based on the issuances of three, factually-supported, 10-day notices to comply or vacate. The 10-day notices served two functions in these proceedings. First, they established that Leeson was given proper notice that his failure to maintain the apartment in good order was in breach of the lease, and was given the opportunity to cure the breach within the 10-day period prescribed by RCW 59.12.030(4).[8] The 10-day notices dated May 10, May 24, and September 12 were admitted at trial; and the trial court found that, despite Leeson’s claim to the contrary, the notices were properly served and that Leeson received them. The trial court also found that on at least one occasion, Leeson failed to remedy the problem within 10 days of receiving notice. Based on this, the trial court correctly concluded Leeson was given the required notice and cure period, and that he failed to comply with the lease within the time period prescribed.
The 10-day notices also supported the trial court’s conclusion that there was just cause for evicting Leeson. Under SMC 22. 206.160(C)(1)(d), a landlord has just cause to evict where a tenant `habitually fails to comply with the material terms of the rental agreement which causes the owner to serve a ten (10) day notice to comply or vacate three (3) or more times in a twelve (12) month period.’ Here, the trial court found there was a factual basis for issuing each of the notices, based on the state of Leeson’s apartment. Those notices were served well within a 12-month period, which in turn supports the conclusion that Leeson habitually failed to comply with material lease terms. This established just cause for eviction under the City of Seattle’s ordinance. Thus, the findings of fact support the court’s conclusion that Leeson was guilty of an unlawful detainer.
II. Show Cause Hearing
Leeson also argues that the procedures were flawed because he never had a show cause hearing as required by SMC 22.206.160(C) and RCW 59.18.380.[9] But the record indicates that a show cause hearing was set for December 11, 2000, that Leeson moved to continue, and that the continuance motion was denied and the matter set for trial. A show cause hearing is a preliminary hearing to determine the merits of the landlord’s complaint and the tenant’s answer.[10] If, as a matter of law, the landlord has the right to possession, the court must enter a writ of restitution.[11] On the other hand, if it appears that the landlord does not have the right to possession or that there are genuine issues of fact, the court must deny the motion for a writ of restitution and set trial within 30 days.[12] The court’s ruling setting Leeson’s case for trial implies that SHA was not entitled to possession as a matter of law. And it is apparent that numerous fact disputes were ultimately resolved at trial. Leeson thus fails to show he was denied this preliminary hearing on the merits of SHA’s claim.
III. Service of Process
Finally, Leeson states there `may’ not have been personal jurisdiction over him, claiming that the affidavit in support of service of the summons and complaint by mail was deficient because it referred to the incorrect tenant and apartment number within SHA. But the record indicates that Leeson did not raise this issue below, and as the trial court found, personal jurisdiction was undisputed. A party waives the defense of insufficient service of process unless it asserts the defense in a responsive pleading or a CR 12(b)(5) motion.[13] Leeson thus cannot raise insufficiency of process for the first time on appeal.
Furthermore, Leeson’s claim appears meritless. Although the initial affidavit in support of service by mail referred to the wrong tenant and address, SHA filed an amended affidavit that properly identified Leeson and his address in apartment 718 of the Roxbury House. Any technical defect created by the scrivener’s error was thus cured.
Affirmed.
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