Vince Sampson v. Robinson Properties & Investments, Llc. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CRISTOBAL MONDRAGON and JANE ) No. 79547-3-I
DOE MONDRAGON, husband and wife, )
and the marital community composed ) DIVISION ONE
thereof; and ALL JOHN DOE AND )
JANE DOE OCCUPANTS; and VINCE ) UNPUBLISHED OPINION
SAMPSON and ANGELA SAMPSON, )
husband and wife, and the marital )
community comprised thereof, )
Appellant,
v.
ROBINSON PROPERTIES &
INVESTMENTS, LLC, a Washington
Limited Liability Company,
Respondent.
__________________________________ FILED: February 24, 2020
HAZELRIGG, J. — Vince and Angela Sampson (collectively the Sampsons)
seek reversal of summary judgment entered against them in a breach of contract
action stemming from their assignee’s default in rent and unlawful detainer of a
commercial premises. They bring multiple challenges to the underlying unlawful
detainer judgment against the assignee, the order finding them liable for breach of
the lease and assignment agreements, and the order imposing damages and
attorney fees. Although the court did not err in finding them liable for the breach
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of contract, it did err in imposing liability on Angela1 Sampson as an individual and
in calculating damages. We affirm in part and reverse the award of damages and
remand to amend orders and judgment by removing any indicia of individual
liability as to Angela Sampson.
FACTS
Robinson Properties & Investments, LLC, (Robinson Properties) of which
William Robinson2 (Robinson) is an authorized member, owns a commercial
property in Everett. In 2015, Vince Sampson executed a three-year lease with
Robinson Properties to rent suite A7 of the property until May 31, 2018. Rent for
the period relevant to this case was $2,200 per month, plus utilities and a pro rata
share of charges for the common facilities known as triple net expenses (NNN).
The lease obligated the tenant to keep the premises in good condition and
surrender the premises at the expiration of the lease “in the same condition in
which they are received, reasonable wear and tear and damage by fire or storm
excepted.” The lease provided that it could not be “assigned, transferred,
encumbered, or sublet” without Robinson Properties’ consent and that “[nb
assignment or subLease [sic] shall relieve Tenant from primary liability on this
Lease.” Section 52 of the lease, entitled “ATTORNEY FEES,” provides that:
If Landlord shall retain an attorney for the purpose of collecting any
monies due from the Tenant or otherwise enforcing or construing the
Lease, Tenant shall pay the reasonable fees for such attorney for his
service and reasonable costs regardless of whether or not such costs
I For clarity, Vince and Angela Sampson will be referred to individually by their first names.
No disrespect is intended.
2 Robinson Properties refers to the business entity. Robinson refers to the individual,
WiNiam Robinson, when he was acting on behalf of Robinson Properties.
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and attorney’s fees are incurred with or without litigation, in a
bankruptcy court, or on appeal.
In 2017, Vince and Robinson jointly executed an assignment of the lease
for unit A7 to assignee Cristobal Mondragon, who also rented units A5 and A6.
Mondragon was to assume the remainder of Vince’s lease until it ended on May
31, 2018, at which time a separate lease between Robinson Properties and
Mondragon for unit A7 would come into effect. The assignment specified that
“Assignor(s) shall remain fully liable and responsible to the Lessor for fulfillment of
all the obligations of the Assignor(s) under the Lease.” Vince would be released
from the lease on its end date of May 31, 2018.
On January 3, 2018, Robinson informed Vince via email that Mondragon
was delinquent in rent payments and that he had “heard a rumor that [Mondragon]
moved back to Mexico” and was no longer able to contact him. Robinson wrote
that Vince was ‘still the Guarantor” for rent payments until the termination of the
lease and assignment. He stated that the outstanding rent of $13,824.85 needed
to be paid by January 6, 2018 to prevent further legal action.
On or around January12, 2018, Robinson Properties served a notice to pay
rent or vacate to the Mondragons and the Sampsons. Neither party tendered the
funds to cure the notice. Robinson Properties brought an unlawful detainer action
against Mondragon and his wife, Jane Doe Mondragon, on January 25, 2018.
Robinson asserted that the Mondragons were personally served with the summons
and complaint for the unlawful detainer. The court issued a writ of restitution
restoring the right of possession to the landlord and a judgment by default on
February 6, 2018. The court found Mondragon liable for a principal judgment
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amount of “$59,503.50 ($29,751.75 in rent x 2 by application of RCW 59.12.170)”
plus attorney fees of $3,007.50 and court costs of $1 ,065.05.
On February 27, 2018, Robinson Properties filed an amended complaint
adding Vince Sampson and Jane Doe Sampson as defendants and seeking
damages for breach of contract. The Sampsons filed an answer asserting multiple
affirmative defenses and including a cross-claim against the Mondragons for
breach of contract and implied indemnity.
Robinson Properties moved for summary judgment on the issues of liability
and damages. In their response opposing the summary judgment motion, the
Sampsons argued that the court did not have subject matter jurisdiction over the
original unlawful detainer action because Mondragon had abandoned the property
and physical possession was not at issue. They contended that CR 60(b) required
the unlawful detainer judgment to be set aside as a matter of law because it was
void for lack of subject matter jurisdiction.
On September 7, 2018, the court granted summary judgment in favor of
Robinson Properties on the issue of liability and continued the motion for summary
judgment on the issue of damages to allow for further discovery. The court found
that there was no genuine issue of material fact regarding the Sampsons’ liability
for the breach of the lease and assignment.
On January 8, 2019, the court granted summary judgment for Robinson
Properties for damages from the breach of the lease. The court doubled the
damages “[p]ursuant to RCW 59.12.170” for a total of $59,543.50, plus pre
judgment interest, reasonable attorney fees, and court costs. The court entered a
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finding that “[t]he sum of $17,702.30 in attorney’s fees and $578.00 in costs are
reasonable sums.” The court did not enter separate findings of fact and
conclusions of law regarding the award of attorney fees and costs.
Ten days later, the Sampsons filed a motion to alter the judgment under CR
59. They argued that the award of double damages under the unlawful detainer
statute was impermissible, that Angela Sampson could not be held liable as an
individual, and that the attorney fee award lacked evidentiary support and
adequate legal justification. The court found that the motion was timely filed but
denied the motion. The court also found that “Plaintiff’s attorney’s fees and costs,
as delineated in the Affidavit of Plaintiff’s Counsel dated January 23, 2019, are
reasonable fees and expenses actually incurred and reasonably necessary for the
litigation of this action.” The Sampsons appealed.3
ANALYSIS
I. Standard of Review
We review summary judgment orders de novo, “considering the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party.” Keck v. Collins, 184 Wash. 2d 358, 370, 357 P.3d 1080 (2015).
The trial court shall grant summary judgment if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The
~ The Sam psons’ Notice of Appeal (filed 2/8/19) requests review of the Judgment (entered
2/6/18), Order Granting in Part Motion for Summary Judgment (As to Liability) and Granting in Part
Motion to Continue (As to Damages) (entered 9/7/1 8), and Order Granting Plaintiff’s Motion for
Summary Judgment Against Defendants Sampson Re: Damages (entered 1/8/1 9). In their opening
brief, they also request review of the post-judgment Order Denying Motion to Alter Judgment /
Motion for Reconsideration (entered 3/20/1 9) under RAP 2.4(f)(3), which allows review of a trial
court’s order on a timely CR 59 motion.
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moving party bears the initial burden of showing the absence of an issue of material
fact. Young v. Key Pharm., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989).
Motions to alter, amend, or reconsider a judgment are within the sound
discretion of the trial court, and a reviewing court will not reverse a trial court’s
ruling absent a showing of manifest abuse of discretion. Wilcox v. Lexington Eye
Inst., 130 Wash. App. 234, 241, 122 P.3d 729 (2005); Worden v. Smith, 178 Wn.
App. 309, 322—23, 314 P.3d 1125 (2013). A court abuses its discretion when the
decision is based on untenable grounds, untenable reasons, or an erroneous view
of the law. Worden, 178 Wash. App. at 323.
II. Unlawful Detainer Judgment
The Sampsons challenged the February 6, 2018 judgment on the unlawful
detainer action against the Mondragons in their notice of appeal and argue against
its validity in the briefing. Robinson Properties responds in a footnote that “the
Appellants have no standing to assert possession.” This appears to raise the
question of whether the Sampsons may appeal the judgment in the unlawful
detainer action because they were not parties to the case at the time the judgment
was entered.
“Only an aggrieved party may seek review by the appellate court.” RAP 3.1.
A party is aggrieved when a decision affects their pecuniary interests or personal
rights or imposes a burden or obligation on them. Randy Reynolds & Assocs., Inc.
v. Harmon, 193 Wash. 2d 143, 150, 437 P.3d 677 (2019). The decision must operate
prejudicially and directly on the party’s rights or interests; “the right invaded must
be immediate, not merely some possible, remote consequence.” Sheets v.
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Benevolent & Protective Order of Keglers, 34 Wash. 2d 851, 855, 210 P.2d 690
(1949) (quoting 4 C.J.S. 356, Appeal and Error, § 183(b)(1) (1937)). “[U]nder some
narrow circumstances, persons who were not formal parties to trial court
proceedings, but who are aggrieved by orders entered in the course of those
proceedings, may appeal as ‘aggrieved parties.” Mestrovac v. Dep’t of Labor &
lndus., 142 Wash. App. 693, 704, 176 P.3d 536 (2008) (quoting State v. G.A.H., 133
Wash. App. 567, 574, 137 P.3d 66 (2006)).
In Sheets, the court found that the appellants were not aggrieved parties
entitled to appeal because the portion of the judgment appealed contained “no
denial of a personal or property right to them as individuals; nor does it impose
upon them, as individuals, a burden or obligation.” 34 Wash. 2d at 855. In Mestrovac,
this court found that the Board of Industrial Insurance Appeals was an aggrieved
party entitled to appeal superior court orders in a case to which it was not a party
when the orders “imposed upon the Board a burden and an obligation by holding
it liable for Me~trovac’s interpreter costs and requiring it to pay thousands of dollars
in attorney fees for attempting to intervene.” 142 Wn. App at 704.
Although the Sampsons were later added to the case and the unlawful
detainer judgment against the Mondragons appears to have been used to compute
the damages for breach of contract, the Sampsons were not directly affected by
the unlawful detainer judgment. The judgment itself does not impose any direct
burden on them or infringe on any of their rights. Therefore, the Sampsons are not
aggrieved parties within the meaning of RAP 3.1 and may not appeal the unlawful
detainer judgment against the Mondragons.
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Ill. Liability
A. Validity of Liability Order
The Sampsons contend that the summary judgment orders in the breach of
contract action are void because the court lacked subject matter and personal
jurisdiction over them in the unlawful detainer action. They argue that the court
lacked jurisdiction in the unlawful detainer because they had no actual possession
or right of possession over the premises and were not named as defendants or
served with the summons and complaint for the unlawful detainer portion of the
proceeding. Robinson Properties responds that the court had proper jurisdiction
because it brought its claims against the Sampsons after the issue of possession
had been resolved and after the case had been converted to an ordinary breach
of contract action.
Superior courts in Washington are courts of general jurisdiction, with
authority to hear and decide cases in equity and cases at law for which jurisdiction
is not vested by law in another court. Wash. Const. art. IV, § 6. An unlawful
detainer action is a summary proceeding authorized by statute to determine the
narrow issue of right to possession of a premises between landlord and tenant.
Munden v. Hazelriciq, 105 Wash. 2d 39, 45, 711 P.2d 295 (1985). “In an unlawful
detainer action, the court sits as a special statutory tribunal to summarily decide
the issues authorized by statute and not as a court of general jurisdiction with the
power to hear and determine other issues.” Granat v. Keasler, 99 Wash. 2d 564, 571,
663 P.2d 830 (1983) (emphasis omitted). A court’s subject matter jurisdiction in
an unlawful detainer proceeding is “limited to the question of possession and
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related issues such as restitution of the premises and rent.” Munden, 105 Wash. 2d
at 45. ‘A judgment entered by a court lacking subject matter jurisdiction is void.”
AnQelo Prop. Co. LP v. Hafiz, 167 Wash. App. 789, 808, 274 P.3d 1075 (2012).
After the right to possession is no longer at issue, an unlawful detainer
proceeding “may be converted into an ordinary civil suit for damages, and the
parties may then properly assert any cross claims, counterclaims, and affirmative
defenses.” Munden, 105 Wash. 2d at 46. In other words, after the proceeding is
converted, the court regains its usual status as a court of general jurisdiction with
the authority to hear issues outside of the narrow scope of unlawful detainer. See
Granat, 99 Wash. 2d at 571. Allowing this conversion promotes judicial economy by
minimizing the number of lawsuits filed and ‘spares the expense and
inconvenience to all parties of maintaining two suits.” Munden, 105 Wash. 2d at 47.
The Sampsons argue that the court had no subject matter jurisdiction over
the breach of contract claims against them because they had not been named as
defendants in the unlawful detainer. The trial court settled the issue of right of
possession when it issued the writ of restitution and judgment against Mondragon.
Once possession was no longer at issue, Robinson Properties amended its
complaint to convert the suit to an ordinary civil suit for damages. The amended
complaint does not profess to be an action for unlawful detainer, nor does it request
restitution of possession. The court was once again sitting as a court of general
jurisdiction and had subject matterjurisdiction over the claim for breach of contract.
The liability order is not void for lack of jurisdiction.
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B. Individual Liability of Angela Sampson
The Sampsons next contend that the court erred in imposing liability for
damages on Angela Sampson as an individual because she was not a signatory
to either the lease or the assignment. At oral argument, Robinson Properties
conceded that Angela could not be held individually liable for breach of contract.
We agree.
A spouse who incurs an obligation or undertakes an enterprise during
marriage presumptively does so for the benefit of the marital community. Or~
Improvement Co. v. Sagmeister, 4 Wash. 710, 711, 30 P. 1058 (1892). Although
the marital community is not a separate legal entity and the property of the
community is owned by the spouses, the law distinguishes between the spouses’
separate and community property. deElchê v. Jacobsen, 95 Wash. 2d 237, 243, 622
P.2d 835 (1980). If a marital community is held liable for an obligation, the debt
may be satisfied from community property. j~ If a party is held individually liable
for an obligation, the debt may be satisfied from the party’s separate property. ki.
The Sampsons cite only one authority from Max L. Wells Trust v. Grand
Cent. Sauna & Hot Tub Co. of Seattle to support their argument that Angela should
not be held individually liable, the relevant facts of which are nearly identical to this
case. See, 62 Wash. App. 593, 815 P.2d 284 (1991). In Wells Trust, a husband
signed a lease in his capacity as managing partner of Grand Central and the court
entered a judgment against the partners of the business and their wives
individually. ~çj. at 599, 603—04. On appeal, the general partners of Grand Central
conceded that a judgment could be entered against them individually and their
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marital communities, but argued that the judgment should not have been entered
individually against their wives. Id. at 603.
“A spouse’s act creating both community liability and separate liability in
the acting spouse ordinarily does not create separate liability in the nonacting
spouse who has not participated in the transaction, that is, it ordinarily does not
create three-way liability.” Id. at 604 (quoting H.M. Cross, The Community Prorerty
Law in Washington (Revised 1985), 61 Wash. L. Rev. 17, 122 (1986)). The Wells
Trust court analyzed the issue as follows:
Here, over the strenuous objection of Grand Central and its partners,
the court entered judgment against the spouses of two of the
partners, individually. There was no pleading that these women were
partners themselves, nor that they signed the lease as a partner.
There was no evidence entered at trial to create individual liability in
either of these women. The lease was signed only by David Stadtner
as the managing partner. The trial court erred in entering individual
judgments against the spouses of partners Stadtner and Bruschera.
ki. The court appears to have accepted the concession that the husbands and
marital communities could be held liable for the obligation, but determined that the
liability did not extend to the separate property of the uninvolved wives.
Wells Trust is directly applicable to the present case. There is no indication
that Angela signed the lease or was a partner in the business on whose behalf the
lease was signed. Angela and her separate property could not be held liable for
the obligation, and the court erred in entering the judgment against her as an
individual .~
~ The Sampsons argued briefly at oral argument that Angela’s half of the community
property also could not be held liable for the obligation. On review of an order granting summary
judgment, we consider only evidence and issues which were called to the attention of the trial court
before entry of the order. RAP 9.12. The Sampsons did not specifically argue the issue of
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C. Summary Judgment on Liability
Apart from challenging Angela’s individual liability, Robinson Properties
argues that the Sampsons otherwise failed to offer evidence denying their
contractual liability and therefore the court properly granted summary judgment in
Robinson Properties’ favor.
As stated above, courts consider the evidence and all reasonable
inferences from the evidence in the light most favorable to the nonmoving party on
summary judgment to determine if there is a genuine issue of material fact. Keck,
184 Wash. 2d at 370. When the language of a contract is clear and unambiguous,
courts will enforce the contract as written. Ley v. Clark Cty. Pub. Transp. Benefit
Area, 197Wn. App. 17, 24, 386 P.3d 1128 (2016).
In support of its motion for summary judgment, Robinson Properties
submitted an affidavit of William Robinson and attached the lease agreement
signed by Robinson and Vince Sampson; the assignment and assumption of lease
signed by Robinson, Vince, and Mondragon; and order authorizing the writ of
restitution in the unlawful detainer action against the Mondragons. Robinson
asserted that there was a balance of unpaid rent due and that Mondragon had
failed to maintain the condition of the property.
In response, Vince asserted that Robinson Properties failed to maintain the
heating and cooling system on the premises while he was a tenant in possession,
before the execution of the assignment. He also attached the email showing that
community liability before summary judgment was entered or on reconsideration. Because the
issue of community liability was not raised before the trial court, we will not consider it on appeal.
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Robinson had made him aware of the default in rent and asserted that he did not
cure the notice to pay rent or vacate.
Viewed in the light most favorable to the Sampsons, there was no genuine
dispute of material fact regarding their liability under the lease and assignment. By
its plain terms, the lease obligated Vince to pay the rent and charges due, even if
he assigned his rights under the lease. The assignment reaffirmed this
responsibility. The Sampsons do not dispute that Mondragon defaulted in rent and
caused damage to the premises, nor do they dispute that they did not tender the
unpaid funds when made aware of the delinquency. The bulk of the Sampsons’
argument against summary judgment addressed the alleged invalidity of the
unlawful detainer judgment against the Mondragons. However, even if the
unlawful detainer judgment was void for the reasons they advance, it would not
affect their liability under the contracts for the unpaid rent and charges. The court
did not err in granting summary judgment on the issue of liability.
IV. Damages
The Sampsons also argue that the court erred in entering summary
judgment on the issue of damages. A party may recover from a breach of contract
those damages which arise naturally from the breach or which the parties could be
reasonably supposed to have understood as a probable result of the breach when
the contract was signed. Gacilidari v. Denny’s Rests., Inc., 117 Wash. 2d 426, 446,
815 P.2d 1362 (1991). Because the Sampsons are liable for the unpaid monies
under the lease and damage to the property, Robinson Properties was entitled to
an award of damages. Although they agree that some award of damages would
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be appropriate if they were liable under the contracts, the Sampsons contend that
the trial court erred in determining the appropriate amount of damages. We agree.
A. Imposition of Double Damages
The Sampsons argue that the award of damages is void because the court
awarded double damages “pursuant to RCW 59.12.170” even though the
Sampsons were not parties to the unlawful detainer action. Robinson Properties
responds that because Mondragon was responsible for double damages under the
unlawful detainer statute and the Sampsons were liable to the same extent as
Mondragon, the damages were properly calculated.
A tenant unlawfully detains a premises when, after a default in rent, a
landlord requires the tenant to pay the rent due within three days or vacate and the
tenant continues in possession in person or by subtenant without paying. RCW
59.12.030(3). If a defendant has been found guilty of unlawful detainer after
default in the payment of rent, the court shall “assess the damages occasioned to
the plaintiff” and enter judgment against the defendant “twice the amount of
damages thus assessed and of the rent, if any, found due.” RCW 59.12.170. This
court interpreted that language to authorize “a compensatory award during the
lawful possession period (past due rent) and a doubling of damages incurred for
the unlawful detainer period.” Sprincin King St. Partners v. Sound Conditioning
Club, Inc., 84Wn. App. 56, 65, 925 P.2d 217 (1996). The unlawful detainer period
begins when the three-day period within which the landlord has required the tenant
to pay rent or vacate expires. ~ at 63. The Sprincin court explained that “[t]he
unquestionable purpose of double damages is to penalize the tenant for the refusal
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to surrender possession when the tenancy terminates” and to “hasten[J restitution
to the owner.” k~. at 65.
Washington law recognizes a distinction between a sublease and an
assignment of a lease. McDuffie v. Noonan, 176 Wash. 436, 439, 29 P.2d 684
(1934). “[Am assignment of a lease occurs when the lessee/assignor transfers his
or her whole interest in the lease without retaining any reversionary interest.” OTR
v. Flakey Jake’s, Inc., 112 Wash. 2d 243, 247, 770 P.2d 629 (1989). When a tenant
transfers less than his entire interest in the lease, retaining a reversionary interest,
the conveyance is a sublease. McDuffie, 176 Wash. at 439. “Contractually, neither
the act of subletting nor assigning absolves the [assignor] of his express duty to
pay rent to his landlord, absent a release by the landlord.” Flakey Jake’s, 112
Wash. 2d at 250 (emphasis omitted). In both instances, the assignor remains liable
for the rent under a privity of contract theory. ki. When a valid assignment occurs,
the assignee comes into privity of estate with the landlord and the privity of estate
between the landlord and assignor is terminated. jç~ at 25 1—52; National Bank of
Commerce of Seattle v. Dunn, 194 Wash. 472, 492, 78 P.2d 535 (1938).
An assignor who executes an absolute, unconditional assignment of a
leasehold, reserving no express or implied right of reentry on breach of condition,
retains no authority over the assignee’s possession of the subject premises.
Brickum mv. Co. v. Vernham Corp., 46 Wash. App. 517, 522—23, 731 P.2d 533
(1987). In that instance, the assignee is not a “subtenant” for purposes of the
unlawful detainer statute. ~ at 523. Because the assignor has neither
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constructive nor actual possession of the premises in this situation, the landlord
may not bring an unlawful detainer action against the assignor. Id.
Here, the Sampsons assigned their entire interest under the lease to
Mondragon, retaining no right of reentry or reversionary interest. Because they
executed a true assignment, they retained no authority over Mondragon’s
possession of the premises and would not have been proper defendants in the
unlawful detainer action. Their privity of estate with Robinson Properties was
terminated when they executed the assignment, and they remained liable only
under a privity of contract theory. Therefore, they are liable only for whatever
damages stem from their breach of the contracts.
Generally, the injured party in a breach of contract action is entitled to
recovery of all damages that accrue naturally from the breach and entitled to be
put into as good a pecuniary position as if the contract had been performed.
Eastlake Const. Co. v. Hess, 102 Wash. 2d 30, 39, 686 P.2d 465 (1984). Robinson
Properties argues that the lease and assignment made the Sampsons liable for all
damages stemming from Mondragon’s breach, It points to the language of the
assignment that it contends supports this argument:
The Assignment specifically speaks to the breadth and scope
of the Appellants’ liability:
“Assignor(s) shall remain fully liable and responsible to the
Lessor for fulfillment of all the obligations of the Assignor(s) under
the Lease.”
Based on this language, the Trial Court properly established
that the Appellants are liable in contract for all damages caused to
Robinson by Mondragon’s breach of the Lease.
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Under the lease, the Sampsons were obligated to pay the rent and charges due
and return the premises in the same condition in which it was delivered. The
language of the assignment makes clear that the Sampsons remained liable to
Robinson Properties for fulfillment of their own responsibilities under the lease.
However, this language does not, as Robinson Properties contends, make the
Sampsons responsible for any and all damages stemming from their assignee’s
breach of contract.
Robinson Properties contends that this result was bargained for when the
parties executed the assignment and that it is entitled to the benefit of that bargain,
including the statutory double damages. But neither contract mentions the
unlawful detainer statutes or the possibility of double damages during an unlawful
detainer period. Robinson Properties is entitled to an award of damages against
the Sampsons for all damages that accrue naturally from their own breach, not
their assignee’s. The Sampsons should be made to put Robinson Properties in
the same pecuniary position that it would have been in if the Sampsons had
performed their own obligations under the contracts, not to answer for their
assignee’s statutory unlawful detainer of the premises.
Also, the purposes of the double damages statute, restitution of the
premises to the owner and penalizing the tenant for refusal to surrender the
property once the tenancy is terminated, are not served by passing double
damages along to an assignor who did not have any right to possession of the
premises. As noted above, Robinson Properties could not have proceeded against
the Sampsons in unlawful detainer. Robinson Properties conceded at oral
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No. 79547-3-1/18
argument that the Sampsons could not have brought an unlawful detainer action
against Mondragon because they had assigned their right of possession. The
Sampsons had no way to restore possession to Robinson Properties after
Mondragon’s breach.
The court erred in holding the Sampsons responsible for the statutory
double damages imposed against Mondragon during the unlawful detainer period.5
B. Summary Judgment on Damages
The Sampsons argue that the trial court erred in calculating damages based
on a document that included past-due and future rents for three units of the leased
premises when only one unit was the subject of the lease. They contend that this
calculation raised questions of fact that precluded summary judgment.
In the Sampsons’ opposition to summary judgment on the issue of
damages, they argued that double damages under the unlawful detainer statute
were inappropriate and disputed Robinson Properties’ calculation of NNN charges.
The Sampsons’ response also stated that “[t]he Plaintiff seeks $15,946.90 in
damages for rent, triple net, utilities and late fees. The defendants are willing to
agree to this amount of damages for rent, subject to clarification of triple net, but
not double damages given the argument made above.” This concession appears
to reference the rent and charges due for the period of January 1, 2018 through
May 31, 2018.
~ Because we find that the double damages were improperly imposed against the
Sampsons, we do not reach the Sampsons’ argument, conceded in part by Robinson Properties,
that the double damages were improperly calculated.
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In an affidavit submitted with Robinson Properties’ reply, Robinson stated
that the three-day notice “contained a balance of $13,824.85 rent due[,]” which
“was a net balance due through January 1, 2018.” He stated this number again
as “[r]ents through January 1, 2018” later in the affidavit but did not show how this
number was calculated. Robinson also incorporated by reference his four prior
affidavits to the court filed January 24, 2018, February 5, 2018, April 5, 2018, and
June 8,2018.
In his affidavit dated April 5, 2018 and submitted with Robinson Properties’
motion for summary judgment, Robinson explained the requested damages. The
affidavit included a calculation of the rents, NNN charges, electric bills, and late
fees due for the period of January 1, 2018 through May 31, 2018. He asserted
that the “balance due as of January 1, 2018 was $13,824.85” and attached a
statement purporting to show charges due through that date as an exhibit. The
statement is dated January 12, 2018, but the last entry is an invoice dated
December 1, 2017. That invoice appears to show a balance of $1 0,407.65 due by
December 5, 2017. The document includes items labeled “500 RENT MONTHLY
A6” and “500 NNN MONTHLY A6.” Robinson does not provide any explanation of
how the balance due as of January 1, 2018 was calculated.
He also submitted as an exhibit to the affidavit the order on the show cause
hearing in the unlawful detainer action, in which the court described the premises
in question as suite A7, found that the Mondragons failed to pay rent between
September 2017 and January 2018, and found the “total past due rent balance” to
be $13,824.85. It does not detail how this figure was calculated.
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Viewing the evidence in the light most favorable to the Sampsons, Robinson
Properties did not carry its burden to show the absence of an issue of material fact
regarding damages. The apparent absence of a calculation of the rent and
charges due through January 1, 2018 anywhere in the record is insufficient to
establish the amount of damages owed. We vacate the order granting summary
judgment on the issue of damages and remand for a new damages order.
V. Award of Attorney Fees and Costs
The Sampsons also argue that the award of attorney fees and costs to
Robinson Properties should be vacated. They contend that the court failed to
conduct a reasonableness inquiry or lodestar analysis when calculating the award
and included fees and costs that predated the Sampsons’ involvement in the
dispute 6
Trial courts may award attorney fees when a private agreement, a statute,
or a recognized ground of equity authorizes such an award. Fisher Props., Inc. v.
Arden-Mayfair, Inc., 106 Wash. 2d 826, 849—50, 726 P.2d 8 (1986). Here, the lease
provided that the Sampsons would be responsible for Robinson Properties’
reasonable attorney fees and costs stemming from nonpayment of rent or
enforcement of the lease. The reasonableness of an award of attorney fees is
reviewed for abuse of discretion. Rettkowski v. Dep’t of Ecology, 128 Wash. 2d 508,
6 The Sampsons argue that they cannot be held liable for the fees and costs relating solely
to the unlawful detainer action against the Mondragons. They do not cite any authority in support
of this contention. ‘Passing treatment of an issue or lack of reasoned argument is insufficient to
merit judicial consideration.” Palmer v. Jensen, 81 Wash. App. 148, 153, 913 P.2d 413 (1996). We
decline to consider this issue.
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519, 910 P.2d 462 (1996). “The trial court abuses its discretion only when the
exercise of its discretion is manifestly unreasonable.” k1.
Generally, Washington follows the lodestar method of calculating
reasonable attorney fees. Mahler v. Szucs, 135 Wash. 2d 398, 433, 957 P.2d 632
(1998), overruled on other grounds by Matsyukv. State Farm Fire & Cas. Co., 173
Wash. 2d 643, 272 P.3d 802 (2012). The trial court determines the number of hours
reasonably expended in the litigation from documentation of the work performed
and the category of attorney who performed the work. Bowers v. Transamerica
Title Ins. Co., 100 Wash. 2d 581, 597, 675 P.2d 193 (1983). The court may then
adjust this figure to reflect a number of other factors. j~ Due to the discretionary
nature of this calculation, when a trial court awards attorney fees, “it must supply
findings of fact and conclusions of law sufficient to permit a reviewing court to
determine why the trial court awarded the amount in question.” SentinelC3, Inc. v.
Hunt, 181 Wash. 2d 127, 144, 331 P.3d 40 (2014).
Here, the court did not enter separate findings of fact and conclusions of
law regarding the award of attorney fees and costs, but included a finding in the
order granting summary judgment on damages that “[t]he sum of $17,702.30 in
attorney’s fees and $578.00 in costs are reasonable sums.” The court stated that
it considered the December 31, 2018 affidavit of Robinson Properties’ counsel with
the motion for summary judgment. In the affidavit, the attorney described the
hourly rates for the one attorney and one paralegal on the case that were used to
calculate the requested amount of attorney fees and attached an exhibit showing
billing statements for the case. The billing statements detail the work that was
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No. 79547-3-1/22
performed, who performed each task, the applicable billing rate, and the time
spent.
The affidavit of plaintiff’s counsel appears to have properly supplied the
court with the information necessary to calculate the lodestar and the Sampsons
do not appear to have challenged this calculation below. The trial court did not
abuse its discretion in finding the unchallenged fee calculation reasonable. Even
though we are vacating the award for damages, we find no error as to the court’s
findings of fact and conclusions of law with respect to the award made for attorney
fees. The Sampsons have not presented us with any challenges to the record
before the court to demonstrate that its finding was improper. On remand, the
court may reach a different result in light of the conclusions in this opinion.
VI. Attorney Fees and Costs on Appeal
The Sampsons and Robinson Properties each contend that they are entitled
to attorney fees and costs on appeal under RAP 18.1 and section 52 of the lease.
“Reasonable attorney fees are recoverable on appeal if allowed by statute, rule, or
contract” and properly requested under RAP 18.1. In re Guardianship of Wells, 150
Wash. App. 491, 503, 208 P.3d 1126 (2009). If the applicable law grants a party the
right to recover reasonable attorney fees and costs on review, the party must
devote a section of its opening brief to the request for fees and costs. RAP 18.1.
The prevailing party in an action to enforce a contract or lease that contains
a provision for attorney fees and costs is entitled to reasonable attorney fees and
costs, regardless of whether the prevailing party is the party specified in the lease.
RCW 4.84.330. The “prevailing party” is the party in whose favor final judgment is
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rendered. ki. When neither party wholly prevails, the party that substantially
prevails on its claims is considered the prevailing party. Peterson v. Koester, 122
Wash. App. 351, 364, 92 P.3d 780 (2004). If neither party substantially prevails, the
appellate court may decline to award attorney fees and costs on appeal. j~
Section 52 of the lease provides for an award of reasonable attorney fees
and costs incurred in enforcing or construing the lease. Both parties devote a
section of their initial briefs to the request for fees and costs. Because the
Sampsons prevailed on the issues of Angela’s individual liability and the order of
damages, they appear to be the substantially prevailing party on appeal. We
award attorney fees and costs on appeal to the Sampsons in an amount to be
determined by a commissioner of this court in accordance with RAP 18.1.
We affirm in part, reverse the order granting summary judgment as to
damages, and remand to amend orders and judgment by removing any indicia of
individual liability as to Angela Sampson and for further proceedings consistent
with this opinion.
F
A!
WE CONCUR: a
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