Hafid Tahraoui, App. v. Pan Abode Homes, Inc., Resp. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HAFID TAHRAOUI, an individual,
No. 69009-4-1
Appellant,
DIVISION ONE
PAN ABODE HOMES, INC. UNPUBLISHED OPINION
a Washington corporation,
Respondent. FILED: March 3, 2014
BECKER, J. — Hafid Tahraoui filed this action alleging that Pan Abode
Homes breached the terms of a license agreement when it evicted him from
rented storage space. When he failed to make any showing that an enforceable
agreement with Pan Abode existed on the date of the eviction, the trial court
properly dismissed Tahraoui's claim and awarded Pan Abode attorney fees as
the prevailing party under the attorney fee provision of the license agreement.
We affirm.
FACTS
Beginning in 2001, Tahraoui leased storage space in Renton from Pan
Abode Homes for his equipment salvage business. In June 2005, the parties
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entered into a license agreement that permitted either party to terminate the
relationship on 30 days' notice.
On September 1, 2005, Tahraoui gave Pan Abode 30 days' written notice
that he was terminating the agreement and vacating the premises by October 1,
2005. When Tahraoui failed to vacate the space after October 1, 2005, Pan
Abode filed an unlawful detainer action.
The trial court found that Tahraoui was in unlawful detainer as of October
1, 2005, and issued a writ of restitution. The sheriff evicted Tahraoui on
February 2, 2006, and Pan Abode disposed of his remaining property. On
appeal, this court affirmed the writ of restitution and judgment entered in favor of
Pan Abode. Pan Abode Homes, Inc. v. Abdulfhafid, noted at 140 Wash. App. 1040
(2007), review denied, 164 Wash. 2d 1014 (2008) (Pan Abode 1).
On September 11, 2011, Tahraoui filed a complaint for damages alleging
that Pan Abode had wrongfully disposed of his property without giving him an
opportunity to remove it. Tahraoui raised claims of breach of contract,
negligence, tortious breach of contract, constructive bailment, conversion,
violation of the Consumer Protection Act, and negligent infliction of emotional
distress. Pan Abode moved for summary judgment. Just before the hearing on
the summary judgment motion, Tahraoui moved to amend his complaint by
withdrawing all tort claims, leaving only his breach of contract claim.
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On April 13, 2012, the trial court granted Tahraoui's motion to amend the
complaint and entered summary judgment in favor of Pan Abode. The court
denied Pan Abode's request for attorney fees under CR 11 and RCW 4.84.185,
but awarded attorney fees totaling $11,330.00 under the fee provision in the
license agreement. The court limited the award to fees reasonably incurred in
responding to Tahraoui's breach of contract claim. Tahraoui appeals.
ANALYSIS
Timeliness of the Appeal
Initially, Pan Abode contends that Tahraoui's appeal was untimely and
must therefore be dismissed. Generally, a party must file a notice of appeal
within 30 days of a final judgment. RAP 5.2(a). A timely motion for
reconsideration in the trial court, however, extends that period until 30 days after
entry of the order denying reconsideration. RAP 5.2(e).
Pan Abode argues that although Tahraoui filed a motion for
reconsideration within 10 days of the final judgment, the motion was legally
insufficient to extend the time for filing the notice of appeal because it did not
"identify the specific reasons in fact and law as to each ground on which the
motion is based." CR 59(b). We disagree.
In his motion for reconsideration, Tahraoui asserted that the trial court had
erred by granting summary judgment in Pan Abode's favor and awarding
attorney fees and by failing to find that Pan Abode had breached the license
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agreement. As announced in the motion, Tahraoui later filed a supporting
memorandum setting forth the specific arguments supporting the request for
reconsideration. Under the circumstances, Tahraoui's motion was sufficient to
comply with RAP 5.2(e). See In re Pet, of Turav. 139 Wash. App. 379, 391, 986
P.2d 790 (1999) (motion for reconsideration asking for 30 days in which to
identify the specific reasons in law and fact to support the motion was sufficient
to extend time to file a notice of appeal under RAP 5.2(e)), cert, denied, 531 U.S.
1125 (2001). Tahraoui's appeal was timely.
Standard of Review
An appellate court reviews summary judgment orders de novo,
undertaking the same inquiry as the trial court. See Greenhalgh v. Dep't of Corr.,
160 Wash. App. 706, 714, 248 P.3d 150 (2011). We consider the materials before
the trial court and construe the facts and inferences in the light most favorable to
the nonmoving party. Hubbard v. Spokane County, 146 Wash. 2d 699, 706-07, 50
P.3d 602 (2002). Summary judgment is proper only ifthere is no genuine issue
of material fact. CR 56(c); Hubbard, 146 Wash. 2d at 707.
Appearance of Fairness
For the first time on appeal, Tahraoui contends that the trial court's
comments and rulings during oral argument on summary judgment violated the
appearance of fairness doctrine and deprived him of a fair hearing. But because
an appearance of fairness claim is not "constitutional" under RAP 2.5(a)(3), an
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appellate court will generally not consider it for the first time on appeal. In re
Marriage of Wallace. 111 Wash. App. 697, 705, 45 P.3d 1131 (2002), review
denied. 148Wn.2d 1011 (2003); State v. Morqensen. 148 Wash. App. 81, 90-91,
197 P.3d 715. review denied. 166 Wash. 2d 1007 (2008). Tahraoui's contentions
are also without merit.
To prevail on an appearance of fairness claim, Tahraoui must present
evidence of the judge's actual or potential bias. State v. Gamble. 168 Wash. 2d
161, 187, 225 P.3d 973 (2010). The "critical concern in determining whether a
proceeding satisfies the appearance of fairness doctrine is how it would appear
to a reasonably prudent and disinterested person." Chi.. Milwaukee. St. Paul. &
Pac. R.R. v. Wash. State Human Rights Comm'n. 87 Wash. 2d 802, 810, 557 P.2d
307(1976).
Tahraoui claims that the trial judge demonstrated bias in favor of Pan
Abode when he asked two questions about Pan Abode's rights during the period
after he had terminated the agreement but failed to remove his property. The
record shows that the questions and comments were part of the court's patient
attempts to elicit the precise legal basis for Tahraoui's allegations that Pan
Abode had breached the license agreement. Viewed in context, the challenged
remarks did not reflect bias or hostility toward either party.
Tahraoui's claim that the trial court ignored his arguments and decided
legal issues by relying on Pan Abode's "advice" is also without merit. In granting
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Tahraoui's motion to amend the complaint, the trial court merely confirmed that
Tahraoui understood Pan Abode's position that the amendment would not
eliminate potential liability for attorney fees already incurred in responding to the
tort claims. The court took no position on the merits of Pan Abode's claim and
eventually denied attorney fees unrelated to the contract claim. Tahraoui raised
no objection to the court's comments and expressly acknowledged that "I have
no issue with that." The court's comments about attorney fees do not support
any inference of bias.
Finally, Tahraoui asserts, without further explanation or reference to the
record, that the trial court rejected his "viable" legal arguments. The transcript of
the summary judgment hearing demonstrates that the trial court gave Tahraoui a
full and fair opportunity to present his arguments. The mere fact that the court
ruled adversely to Tahraoui does not support the slightest inference of bias or
prejudice. See Rhinehart v. Seattle Times Co.. 51 Wash. App. 561, 579-80, 754
P.2d 1243. review denied. 111 Wash. 2d 1025 (1988). cert, denied, 490 U.S. 1015
(1989).
Breach of the License Agreement
Tahraoui contends that Pan Abode "breached the parties' license
agreement, or breached an implied contract in February 2006 when it evicted
him. As the party asserting the existence of a contract, Tahraoui bears the
burden of establishing the essential elements, including the subject matter of the
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contract, the parties, the promise, the terms and conditions, and the
consideration. DePhillips v. Zolt Constr. Co.. 136 Wash. 2d 26, 31, 959 P.2d 1104
(1998).
It is undisputed that Tahraoui terminated the license agreement as of
October 1, 2005, and that he was in unlawful detainer as of that date. See Pan
Abode 1. Tahraoui claims, however, that the agreement imposed an implied duty
on Pan Abode to grant him additional time, not only past the termination date of
October 1, 2005, but also for some unspecified period of time past the eviction
date of February 2, 2006, in which to remove his property. He fails to identify any
evidence or legal theory suggesting the existence of such an implied term of the
license agreement. This courtwill decline to address issues unsupported by
cogent legal argument or citation to relevant authority. Saunders v. Lloyd's of
London. 113 Wash. 2d 330, 345, 779 P.2d 249 (1989).
Tahraoui's reliance on Kloss v. Honeywell. Inc.. 77 Wash. App. 294, 890
P.2d 480 (1995), is misplaced. In Kloss. the court determined that the parties'
written employment agreement, which provided generally for the employee's
compensation but did not specify an amount, imposed an implicit obligation on
the employer "to pay him [a reasonable amount] for that work." Kloss. 77 Wn.
App. at 300. The court held that under the circumstances, the written contract
was enforceable and fell within the six-year statute of limitations.
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No. 69009-4-1/8
Kloss has no application to the facts here. Tahraoui failed to demonstrate
any factual issue indicating that the license agreement contained any term—
express or implied—imposing an obligation on Pan Abode to provide him access
to the premises past February 2, 2006. The trial court properly dismissed
Tahraoui's breach of contract claim on summary judgment.
Tahraoui also asserts that his claims "should be viable" under the
equitable tolling doctrine. In very limited circumstances, equitable tolling "permits
a court to allow an action to proceed when justice requires it, even though a
statutory time period has elapsed." In re Pers. Restraint of Bonds. 165 Wash. 2d
135, 141, 196 P.3d 672 (2008). "The predicates for equitable tolling are bad
faith, deception, or false assurances by the defendant and the exercise of
diligence by the plaintiff." Millav v. Cam. 135Wn.2d 193, 206, 955 P.2d 791
(1998). But Tahraoui amended his complaint to eliminate all of his tort claims.
He makes no showing that Pan Abode's alleged bad faith prevented him from
pursuing any ofthis claims. Consequently, the equitable tolling doctrine does not
apply.
Attorney Fee Award
Tahraoui contends that the trial court erred in awarding attorney fees to
Pan Abode. He argues that the trial court misinterpreted the rule in Park v. Ross
Edwards. Inc.. 41 Wash. App. 833, 837, 706 P.2d 1097. review denied. 104 Wn.2d
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1027 (1985), when it based the award on the bilateral attorney fee provision in
the license agreement rather than on equitable principles. Tahraoui is mistaken.
Under the terms of the parties' license agreement, the "substantially
prevailing party in any litigation arising hereunder" was entitled to reasonable
attorney fees and costs. Under Edwards, the party who prevails in an action
based on a contract containing a bilateral attorney fee provision may recover
attorney fees by establishing the invalidity or unenforceability of the contract.
Although such an award is based on the equitable principle of "'mutuality of
remedy,'" the trial court's award of fees does not depend on the consideration of
equitable factors in an individual case. See Kaintzv. PLG. Inc.. 147 Wash. App.
782, 789, 197 P.3d 710 (2008), quoting Yuan v. Chow. 96 Wash. App. 909, 918,
982 P.2d 647 (1999). Rather, when determining whether an award is warranted,
"it is the terms of the contract to which the trial court should look." Kaintz. 147
Wash. App. at 790.
Tahraoui alleged that Pan Abode breached the terms of the license
agreement when it failed to provide him access to the premises after February 2,
2006. When he failed to make any showing that the license agreement was still
in effect on that date, the trial court properly awarded Pan Abode attorney fees
under the fee provision of the agreement. See Edwards. 41 Wash. App. at 838-39
(in dispute arising out of a contract, prevailing party entitled to attorney fees even
though the contract was not enforceable); Kaintz, 147 Wash. App. at 790
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(prevailing party in action on a contract entitled to attorney fees after establishing
that there was no enforceable contract between parties).
Tahraoui also challenges the amount of the attorney fee award. He
argues that Pan Abode's counsel spent too many hours on the contract issue,
that his hourly rate was excessive, and that some of the billed charges were
wasteful. We review the amount of an attorney fee award for an abuse of
discretion. Morgan v. Kingen. 166 Wash. 2d 526, 539, 210 P.3d 995 (2009).
Pan Abode's counsel submitted detailed billing records to document the
attorney fee request. In his supporting declarations, counsel explained that in
accordance with the trial court's decision, he had segregated, to the extent
possible, all fees not associated with Tahraoui's contract claim. Counsel also
described his professional experience and stated that his billing rates—$230 per
hour for 2011 and $240 in 2012—were his usual rates for this period and were
consistent with other practitioners of similar experience in the Seattle area. In
making the award, the trial court expressly found that counsel's rates were
reasonable, did not reflect duplicated or unproductive time, and did not include
time spent defending against noncontract claims.
As he did in the trial court, Tahraoui asserts that counsel's hourly rate was
excessive for the Seattle area. But this allegation rests solely on hearsay
statements from four unnamed Seattle attorneys. The trial court granted Pan
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No. 69009-4-1/11
Abode's motion to strike the allegations, and Tahraoui has not challenged that
decision on appeal.
Tahraoui further asserts that counsel should have spent no more than 10
hours in responding to his appeal, rather than about 42 hours, that counsel spent
too many hours preparing the attorney fee request, and that the billing records
reflected wasteful efforts. But Tahraoui fails to support these conclusory
allegations with any meaningful discussion of specific billing entries or references
to the record. Under the circumstances, he has not demonstrated any abuse of
discretion in the amount of the attorney fee award.
Attorney Fees on Appeal
Pan Abode has requested an award of attorney fees on appeal. RAP
18.1(a). Such an award is appropriate under the terms of the license agreement.
See Kaintz. 147 Wash. App. at 790-91. The request is granted subject to
compliance with RAP 18.1(d).
Affirmed.
WE CONCUR:
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