Robert Howard v. Pssc, Inc ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ROBERT HOWARD, No. 76025-4-
Appellant,
v.
PSSC, INC., d/b/a PUBLIC STORAGE
SHURGARD STORAGE CENTERS,
LLC, d/b/a PUBLIC STORAGE;
JOHN DOE, UNPUBLISHED OPINION
Respondent. FILED: January 17, 2017
Verellen, C.J. — After Robert Howard defaulted on his monthly self-storage
rental unit payment, Public Storage mailed him a notice of lien sale and later sold the
contents of the unit to satisfy the lien. Howard sued Public Storage, alleging causes of
action for negligence, conversion, replevin, and civil conspiracy. He appeals the
summary judgment order dismissing his claims. Because Howard fails to establish any
genuine issue of material fact, we affirm.
FACTS
Robert Howard signed a rental agreement with Public Storage for a self-storage
rental unit on September 2, 2014. Howard provided a Port Orchard address on Lincoln
Avenue, a telephone number, and an email address for contact, and also provided
alternate contact information for Salvie Howard. A "change of physical address"
provision in the agreement required that Howard notify Public Storage of any change in
No. 76025-4-1/2
his place of residence or a change in the alternate's name or address within 10 days of
the change.1
Howard agreed to pay a monthly rental fee of $129 for the storage unit, paid in
advance on or before the first of each month, plus additional late fees for late payment.
In the event of nonpayment, he agreed that property stored in the unit would be subject
to a lien in favor of Public Storage:
When any part of the Rent or. . . other charges remains unpaid for six (6)
consecutive days, Owner may deny Occupant the right to enter the
Premises and to access the personal property being stored therein. If
Occupant is still in default forty-two (42) days after the date when Rent
and/or other charges become due, the Owner may then enforce the lien
and the personal property stored in the Premises (except boxes clearly
labeled "personal property" and/or "personal effects") may be sold or
otherwise disposed of to satisfy the lien. Prior to the lien sale, Owner will
mail Occupant lien notices.121
Howard initialed this paragraph, acknowledging that he read, understood, and agreed
to it.
The agreement further stated, "Occupant agrees that under no circumstances will
the total value of all personal property stored in the Premises exceed, or be deemed to
exceed, $5,000."3 Paragraph 5 specifically advised that the storage unit was
not suitable for the storage of heirlooms or precious, invaluable or
irreplaceable property such as, but not limited to, books, records, writings,
contracts, documents, personalized or other DVDs or videos, works of art,
objects for which no immediate resale market exists, objects which are
claimed to have special or emotional value and records or receipts relating
to the stored goods.[4]
Howard acknowledged this limitation by initialing the paragraph.
1 Clerk's Papers (CP) at 41.
2CPat40.
3CPat40.
4CPat40.
No. 76025-4-1/3
Paragraph 7 of the agreement further limited Public Storage's liability in the
event of loss:
Owner and Owner's Agents will have no responsibility to Occupant or to
any other persons for any loss, liability, claim, expense, damage to
property or injury to persons ("Loss") from any cause, including without
limitation, Owner's and Owner's Agents['] active or passive acts,
omissions, negligence or conversion, unless the Loss is directly caused by
Owner's fraud, willful injury or willful violation of law. . .. Occupant agrees
that Owner's and Owner's Agents' total responsibility for any Loss from
any cause whatsoever will not exceed a total of $5,000.[5]
Howard also initialed this paragraph, acknowledging that he understood it.
On an addendum to the rental agreement, Howard acknowledged his
understanding that the company was not responsible for any loss to his property stored
on the premises and agreed to insure his property from a third-party insurer. Howard
elected to purchase the lowest level of coverage offered, $3,000, for an additional
$11.00 per month.
Howard authorized Public Storage to automatically charge his credit card for his
monthly rent payment. On December 2, 2014, Howard's credit card payment was
declined. Howard does not dispute that he defaulted on his payment to Public Storage.
Public Storage attempted to advise Howard his account was past due by calling
both his primary number and his alternate contact's number five times between
December 3 and December 31, 2014. Public Storage was unsuccessful. Public
Storage also emailed Howard on December 18, 2014. It called Howard and his
alternate contact seven more times between January 4 and January 31, 2015. Howard
never answered his phone and he did not have his voicemail set up, and he listed a
disconnected phone number for his alternate contact.
5CPat41.
No. 76025-4-1/4
Public Storage sent Howard preliminary delinquency notices on December 31,
2014, January 8, 2015, and January 12, 2015. On January 20, 2015, Public Storage
mailed Howard a notice of a lien sale to advise him that it intended to sell the contents
of his unit because his account was overdue. Public Storage sent the lien notice to
Howard's Lincoln Avenue address via certified, return receipt mail. The United States
Post Office returned the unclaimed letter on February 17, 2015 after making three
attempts to deliver it.
Public Storage made multiple attempts to contact Howard and his alternate
contact by telephone between February 5 and February 19, 2015. It sent two additional
emails to Howard on February 8 and February 17, 2015. The morning of the February
20, 2015 public auction, Public Storage made one final attempt to reach Howard or his
alternate contact by telephone. Public Storage was again unsuccessful.
Public Storage sold the contents of Howard's storage unit at the auction. It is
undisputed that there were no contents labeled "personal papers" or "personal effects."6
The sale resulted in a credit of $60 to Howard and left a balance of $599.40 due to
Public Storage. The purchaser of Howard's unit signed an agreement and a
certification of public sale on the date of the sale, requiring the return to Public Storage
of "photos, documents (e.g., birth certificates and passports), and other personal items
('Personal Property')."7 The purchaser never left any contents from the sale behind with
Public Storage.
On March 3, 2015, Howard appeared at Public Storage's office and demanded
the return of his personal items.
6 CP at 202.
7 CP at 277-80.
No. 76025-4-1/5
Howard sued Public Storage, asserting causes of action for negligence,
conversion, replevin, and civil conspiracy.8 He immediately filed a motion for order to
show cause, requesting an order of replevin and the return of his personal property.
The trial court issued an amended order to show cause on April 3, 2015, requiring
Public Storage to "immediately return any personal effects as per RCW 19.50.060 to
[Howard] should they come into [Public Storage's] possession at any time in the future
as per RCW 19.50.060."9 Thereafter, Public Storage moved for summary judgment on
Howard's claims. The trial court granted Public Storage's motion with prejudice.
Howard appeals.
ANALYSIS
Howard contends the trial court erred by dismissing his claims against Public
Storage for negligence, conversion, and civil conspiracy. We review a summary
judgment order de novo, engaging in the same inquiry as the trial court.10 We view the
facts and all reasonable inferences in the light most favorable to the nonmoving party.11
Summary judgment is proper if there are no genuine issues of material fact.12 "A
material fact is one that affects the outcome of the litigation."13
Paragraph 7 of Howard's rental agreement contained an exculpatory provision
limiting Public Storage's liability unless the occupant's loss was caused by Public
8 Howard also sued the purchaser of the contents of his unit.
9 CP at 52.
10 Beaupre v. Pierce County, 161 Wash. 2d 568, 571, 166 P.3d 712 (2007).
11 Fulton v. Dep't of Soc. & Health Servs., 169 Wash. App. 137, 147, 279 P.3d 500
(2012).
12 CR 56(c); Lowman v. Wilbur, 178 Wash. 2d 165, 168-69, 309 P.3d 387 (2013).
13 Janaszak v. State. 173 Wash. App. 703, 711, 297 P.3d 273 (2013).
No. 76025-4-1/6
Storage's "willful injury or willful violation of law."14 Howard argues Public Storage
willfully violated RCW 19.50.060 resulting in willful injury, but he cites no authority and
provides no meaningful analysis in support of his conclusion.
The contract does not define "willful injury" or "willful violation of law." Undefined
contract terms are given their plain meaning and are to be read in context of the other
contract provisions.15 The plain meaning of willful injury and willful violation of law both
involve more than merely intentionally selling the contents of the storage unit.16 And
those terms must be read in context of other contract provisions imposing obligations
upon the renter regarding personal papers and personal effects.17
Howard ignores the provision in his rental agreement that required him to
segregate and "clearly" label any "personal papers" and "personal effects" stored in the
unit.18 He also ignores the provision that acknowledged the storage unit was "not
suitable for the storage of heirlooms or precious, invaluable or irreplaceable property
14
CPat41.
15 Queen City Farms. Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wash. 2d 50, 77,
882 P.2d 703 (1994) (undefined contract terms are given their "plain, ordinary and
popular meaning" which "may be ascertained by reference to standard English
dictionaries"); Viking Bank v. Firgrove Commons 3. LLC. 183 Wash. App. 706, 712, 334
P.3d 116 (2014) ("[W]e view the contract as a whole, interpreting particular language in
the context of [the] other contract provisions."); Nishikawa v. U.S. Eagle High. LLC. 138
Wash. App. 841, 849, 158 P.3d 1265 (2007) ("Our goal is to interpret the agreement in a
manner that gives effect to all the contract's provisions.").
16 See Webster's Third New International Dictionary 2617 (2002) (defining
"willful" as "governed by will without yielding to reason or without regard to reason"); see
also Smith v. Behr Process Corp.. 113 Wash. App. 306, 327, 54 P.3d 665 (2002)
(discovery violation may be deemed willful it if is "done without reasonable excuse");
Rivers v. Washington State Conference of Mason Contractors. 145 Wash. 2d 674, 686-87,
41 P.3d 1175 (2002) ("A party's disregard of a court order without reasonable excuse or
justification is deemed willful.");
17 See Viking Bank. 183 Wash. App. at 712: Nishikawa. 138 Wash. App. at 849.
18 CP at 40.
No. 76025-4-1/7
such as, but not limited to, books, records, writings, contracts, documents, personalized
or other DVDs or videos, works of art, objects for which no immediate resale market
exists," and "objects which are claimed to have special or emotional value."19 Finally,
Howard ignores the provision in the agreement that required him to give Public Storage
written notice of a change in address or alternate name, address, and telephone
number within 10 days of the change.
Here, it is undisputed that Howard did not segregate and label his personal
effects, or provide Public Storage with updated contact information. It is also
undisputed that Public Storage made diligent efforts to notify Howard about his default
and the lien sale. Under these circumstances and on this briefing, Howard cannot
establish a genuine issue of material fact as to any "willful injury or willful violation of
law." Therefore, paragraph 7 bars Howard's claims.
Howard also argues the trial court erred in dismissing his claim for replevin
because he "already prevailed on his cause of action for replevin," and the resulting
order became the law of the case.20 Howard misstates the nature of the trial court's
April 3, 2015 order.
The April 3, 2015 Order on Amended Order to Show Cause did not grant
Howard's request for replevin. Rather, it merely ordered Public Storage to return
Howard's personal effects ifthey came into its possession. Washington's replevin
statute provides that an order awarding possession shall
19 CP at 40.
20 Appellant's Br. at 19.
No. 76025-4-1/8
(a) State that a show cause hearing was held; (b) describe the property
and its location; (c) direct the sheriff to take possession of the property
and put the plaintiff in possession as provided in this chapter; (d) contain a
notice to the defendant that failure to turn over possession of the property
to the sheriff may subject the defendant to being held in contempt of court
upon application to the court by the plaintiff without further notice; (e) if
deemed necessary, direct the sheriff to break and enter a building or
enclosure to obtain possession of the property if it is concealed in the
building or enclosure; and (f) be signed by the judge or commissioner.[21]
Because the April 3, 2015 order did not contain this mandatory language, the order
failed to satisfy the requirements of the replevin statute.
Accordingly, we affirm.
WE CONCUR:
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21 RCW 7.64.035(2).
8