Stephen Faciszewski Et Al., Respondents, v. Michael R. Brown Et Al., Appellants

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEPHEN FACISZEWSKI and
VIRGINIA L KLAMON, No. 72611-1-1
Respondents, DIVISION ONE
v.
PUBLISHED OPINION
MICHAEL R. BROWN and
CO
JILLA.WAHLEITHNER,
en
Appellants. FILED: February 1,2016
J. Leach — Michael Brown and his wife, Jill Wahleithner (Tenants), appeal
the trial court's decision evicting them from a house owned by Stephen
Faciszewski and his wife, Virginia Klamon (Landlords). The Tenants challenge
the sufficiency of the service and the contents of the notice terminating their
tenancy and the award of unpaid rent, attorney fees, and cost to Landlords. The
Landlords properly served the termination notice and it provided the Tenants with
adequate notice about the Landlords' just cause for eviction. And because the
trial court properly awarded the Landlords unpaid rent for the period of unlawful
detainer, along with attorney fees and court costs, we affirm.
FACTS
The Tenants leased a house in Seattle from the Landlords. The Landlords
lived in a house next door. After the lease expired, Tenants continued to live in
NO. 72611-1-1/2
the house on a month-to-month basis. In February 2014, the Tenants had a
parking dispute with neighbors about a disabled person's access to those
neighbors' house. The Landlords intervened and asked the Tenants not to park
in a certain area that blocked access.
Faciszewski unsuccessfully attempted to serve the Tenants personally
with a notice terminating tenancy. Faciszewski then taped a copy of the notice to
the front door of the rental property. He also mailed a copy to the Tenants at the
same address. The notice required the Tenants to vacate the house on or before
July 31 so that one or more members of Landlords' immediate family could use it
as a primary residence.
The Tenants claim to have been at the rental property when Faciszewski
taped the notice to the door. The Tenants actually received the notice and did
not vacate the rental premises on or before July 31.
On August 1, the Landlords filed a complaint for unlawful detainer and
requested a show cause hearing.1 At the show cause hearing, the Tenants
alleged retaliation as a defense to the complaint. A court commissioner rejected
this defense. But the commissioner set the case for trial because of "subsequent
questions at issue" as to who was going to live in the house. The Landlords filed
a motion to revise the commissioner's ruling.
RCW 59.18.365.
NO. 72611-1-1/3
The trial court revised the commissioner's decision, struck the trial date,
and entered an order for a writ of restitution. The trial court found that the
Landlords provided the Tenants with adequate notice to vacate and satisfied the
just cause provision of the Seattle Municipal Code (SMC).2 The trial court
concluded that the Landlords were entitled to possession of the rental property, a
writ of restitution, unpaid rent, court costs, and attorney fees. The trial court also
concluded that the Tenants' subjective belief about the Landlords' stated reason
for the eviction did not excuse the Tenants' noncompliance with the termination
notice. The trial court denied the Tenants' motion for reconsideration.
The trial court entered judgment in favor of the Landlords, awarding them
unpaid rent from August 1 to September 19, attorney fees, and court costs. The
Tenants appeal.
STANDARD OF REVIEW
Generally, if the parties base their trial court arguments entirely on written
materials, we review the record de novo.3 Interpretation of a statute presents a
question of law that we review de novo.4 The adequacy of a notice terminating
tenancy presents a mixed question of law and fact that we also review de novo.5
2 SMC 22.206.160(C).
3 Indigo Real Estate Servs.. Inc. v. Wadsworth, 169 Wash. App. 412, 417,
280 P.3d 506 (2012).
* Ruvalcaba v. Kwana Ho Baek, 175 Wash. 2d 1, 6, 282 P.3d 1083 (2012).
5 Hall v. Feiaenbaum, 178 Wash. App. 811, 819, 319 P.3d 61, review denied,
180 Wash. 2d 1018 (2014); RCW 59.12.030.
-3-
NO. 72611-1-1/4
ANALYSIS
The Tenants assert two reasons why the trial court should have dismissed
the Landlords' complaint or conducted a trial before evicting them: the Landlords
did not properly serve the termination notice and the notice did not state sufficient
facts in support of the reason for termination. The Tenants also claim that the
trial court should not have awarded the Landlords back rent because the
Landlords refused to accept payment offered after service of the termination
notice. We disagree with each of the Tenants' assertions.
A statutory unlawful detainer action provides a summary process for
resolving a dispute between a landlord and a tenant about the right to possession
of leased property.6 At the beginning of this action or anytime later in the
proceedings, the landlord may ask the court for a writ of restitution restoring to it
possession of the property.7 For residential property, a landlord who wants a writ
of restitution must schedule a show cause hearing.8 At the show cause hearing,
the court decides if the landlord has shown that no substantial issue of material
fact exists about the landlord's right to possession and any other relief
requested.9 If so, the court grants this relief. If not, the court sets the case for
6 Munden v. Hazelriqq. 105 Wash. 2d 39, 45, 711 P.2d 295 (1985); RCW
59.12.030.
7 RCW 59.12.090.
8 Indigo. 169 Wash. App. at 421; RCW 59.18.370.
9 RCW 59.18.380.
-4-
NO. 72611-1-1/5
trial unless the court decides the landlord has no legal right to the relief
requested and dismisses the case.10
Although a show cause hearing is not the final determination of the rights
of the parties in an unlawful detainer action, the trial court frequently decides the
necessity of a trial at the hearing.11 As occurred here, the show cause hearing
often provides the only opportunity for a tenant to present any evidence.12
The Tenants contend that substantial material issues of fact exist about
adequate service, the content of the notice, and just cause for terminating the
tenancy. As a result, they claim that the trial court should have dismissed this
case or set it for trial.
Sufficiency of Service
The Tenants contend that the Landlords did not properly serve the notice
terminating their tenancy. The Tenants also assert that even if the time and
manner of service was proper, Faciszewski's declaration of service did not
comply with the statutory form and content requirements.
RCW 59.12.040 controls service of the termination notice and provides
three methods of service:
10 RCW 59.18.380.
11 Indigo. 169 Wash. App. at 421; Carlstrom v. Hanline, 98 Wash. App. 780,
788, 990 P.2d 986 (2000); Leda v. Whisnand. 150 Wash. App. 69, 81-82, 207 P.3d
468 (2009).
12 Indigo. 169 Wash. App. at 421; Carlstrom, 98 Wash. App. at 788; Leda, 150
Wash. App. at 82.
-5-
NO. 72611-1-1/6
Any notice provided for in this chapter shall be served either (1) by
delivering a copy personally to the person entitled thereto; or (2) if
he or she be absent from the premises unlawfully held, by leaving
there a copy, with some person of suitable age and discretion, and
sending a copy through the mail addressed to the person entitled
thereto at his or her place of residence; or (3) if the person to be
notified be a tenant, or an unlawful holder of premises, and his or
her place of residence is not known, or if a person of suitable age
and discretion there cannot be found then by affixing a copy of the
notice in a conspicuous place on the premises unlawfully held, and
also delivering a copy to a person there residing, if such a person
can be found, and also sending a copy through the mail addressed
to the tenant, or unlawful occupant, at the place where the
premises unlawfully held are situated.
A court has no power to give a landlord relief from a holdover tenancy
unless the landlord gives a tenant proper notice.13
The Tenants claim that the Landlords could not use the third service
alternative because they were home when the Landlords taped the notice to their
door. Thus, they contend, because they could be found at their residence,
service by posting and mailing was not available. We disagree.
As this court has previously observed, the repeated use of the word "or" in
RCW 59.12.040 implies that (1), (2), and (3) are equal alternatives for notice.14
In Hall v. Feigenbaum,15 the landlord posted a three-day notice to pay rent or
vacate at the unlawfully held premises. The landlord also mailed a copy to that
address, even though he knew the commercial tenant was no longer doing
13 Leda, 150 Wash. App. at 85.
14 Hall, 178 Wash. App. at 820.
15 178 Wash. App. 811, 816, 820, 319 P.3d 61 (2014).
-6-
NO. 72611-1-1/7
business at that location.16 The tenant in Hall argued that service was insufficient
because the landlord knew his home address but did not mail the notice there.17
This court held that service of the notice was proper because the tenant did not
provide evidence that he provided the landlord with his home address.18
Here, the Tenants contend the Landlords did not properly serve the notice
because they were home when Faciszewski taped it to their door. Faciszewski
stated in his declaration of service, "I attempted to deliver a copy of said Notice
into the hands of the defendants but was unable to do so." Tenants offer no
evidence challenging the truth of this statement. Instead, in their respective
declarations, they state, "While we were home on June 29, 2014, Mr.
Faciszewski taped a notice of termination on our door," and nothing more. They
make no claim that Faciszewski did not take some action to attempt service
before taping the notice on it. They cite no authority supporting their claim that
Faciszewski needed to provide greater detail in his declaration of service about
his attempt.
Accepting the Tenants' argument would allow a tenant to refuse to answer
the door and completely avoid service. The Tenants do not reconcile their view
with any ordinary meaning of the word "found" or the statutory provision giving
16 Hall, 178 Wash. App. at 816, 820.
17 Hall. 178 Wash. App. at 820.
18 Hall, 178 Wash. App. at 820-21.
-7-
NO. 72611-1-1/8
the landlord an alternative method of service by posting and mailing a notice to
quit the premises.19 The Landlords complied with RCW 59.12.040 by taping a
copy of the notice to the front door and sending a copy through the mail
addressed to the Tenants because Faciszewski could not find them.
Tenants rely on Weiss v. Glemp,20 where our Supreme Court held that the
plaintiff's service did not satisfy the requirements for serving a civil summons21
because the process server saw the defendant through a window, did not give
the documents to the defendant's secretary who came to the door, and left the
documents for the defendant on an outside windowsill. In Weiss, the court
analyzed RCW 4.28.080(15),22 a statute that does not apply to this case.
Instead, as the parties agree, RCW 59.12.040 applies. Unlike RCW
4.28.080(15), RCW 59.12.040 provides for service of a notice by affixing a copy
of the notice to a conspicuous place on the premises and sending a copy by mail
if a suitable person "cannot be found."23 The legislature created a more forgiving
process for serving an unlawful detainer preeviction notice24 as opposed to a
summons in a civil action.25
19 RCW 59.12.040(3).
20 127 Wash. 2d 726, 731-33, 903 P.2d 455 (1995).
21 See RCW 4.28.080(15).
22 Weiss, 127 Wash. 2d at 731.
23 RCW 59.12.040(3).
24 RCW 59.12.040.
25 RCW 4.28.080(15).
-8-
NO. 72611-1-1/9
Adequate Notice
The Tenants challenge the sufficiency of the content of Landlords'
termination notice. They claim it did not give adequate notice because it failed to
state sufficient facts in support of the reason for terminating the tenancy. The
Tenants also contend that the Landlords did not have just cause to terminate the
tenancy, as required by the applicable city ordinance. Again, we disagree.
A landlord must obtain a court order to evict a residential tenant.26 Before
a court grants this relief, the tenant must receive an opportunity to contest the
eviction at a show cause hearing.27 In Seattle, a landlord cannot evict, or attempt
to evict, a residential tenant unless the landlord can prove in court that just cause
exists.28 With a termination notice, the landlord must provide a written statement
of the reason for the termination and facts supporting that reason.29 The reasons
for just cause include the following:
The owner seeks possession so that the owner or a member of his
or her immediate family may occupy the unit as that person's
principal residence and no substantially equivalent unit is vacant
and available in the same building. . . . There shall be a rebuttable
presumption of a violation of this subsection ... if the owner or a
member of the owner's immediate family fails to occupy the unit as
that person's principal residence for at least 60 consecutive days
during the 90 days immediately after the tenant vacated the unit
26 RCW 59.18.290(1).
27 SMC 22.206.160(C); RCW 59.18.380.
28 SMC 22.206.160(C).
29 SMC 22.206.160(C)(3).
-9-
NO. 72611-1-1/10
pursuant to a notice of termination or eviction using this
subparagraph as the cause for eviction.[30]
If a tenant believes that the owner does not intend to carry out the stated
reason for eviction and complains to the city, the landlord must file a certification
with the city stating the owner's intent to carry out the stated reason for eviction.31
A tenant has a private claim for damages against an owner who evicts, or
attempts to evict, the tenant because an immediate family member or owner
intends to use the premises but does not fulfill or carry out this reason for
terminating the tenancy.32
The Landlords served a notice to quit at the rental property. The
Landlords' notice to quit the premises stated, "[W]e seek to possess the Property
so that at least one immediate family member (or, in the alternative, one of us)
may occupy the Property as a principal residence." After the Tenants
complained to the city, the Landlords filed a certified declaration with the city of
Seattle, stating that the Landlords intended to use the property as a primary
residence for an immediate family member33
Tenants contend that the notice "simply parroted the language" of the
statute34 and that the Landlords must provide specific information. Copying the
30 SMC 22.206.160(C)(1)(e).
31 SMC 22.206.160(C)(4).
32 SMC 22.206.160(C)(6), (7).
33 SMC 22.206.160(C)(4).
34 SMC 22.206.160(C)(1)(e).
-10-
NO. 72611-1-1/11
language of SMC 22.206.160(C)(1)(e) without adding more detailed, specific
information does not make the notice insufficient. The plain language of SMC
22.206.160(C)(3) does not require a landlord to provide more specific
information, such as the name of the person or people moving in, when they are
moving in, or why they are moving to the premises. The Tenants have not
provided any authority indicating that the Landlords were required to disclose this
type of specific information. We conclude that the Landlords included sufficient
facts to support their reason for terminating the tenancy in the notice because the
language complied with the requirements stated in SMC 22.206.160(C)(1)(e) and
SMC 22.206.160(C)(3).
The Tenants also claim that the Landlords did not have just cause to
terminate the tenancy because of conflicting information about Faciszewski's
mother's plans. However, the Tenants have only demonstrated that they do not
believe the Landlords' stated reason for terminating the tenancy, not that the
Landlords did not carry out the stated reason.
In Housing Authority v. Silva,35 the landlord commenced an unlawful
detainer action alleging that the tenant had habitually failed to comply with his
lease obligations by causing four disturbances over a 3.5-year period. To
terminate the tenancy for just cause, the landlord had to serve the tenant with
35 94 Wash. App. 731, 736, 972 P.2d 952 (1999).
-11-
NO. 72611-1-1/12
three 10-day notices within a 12-month period.36 The landlord only provided two
10-day notices within the 12-month period.37 This court held that the landlord
failed to prove just cause for eviction.38
Unlike the landlord in Silva, the Landlords here could not carry out the
stated reason for eviction because the Tenants did not vacate the rental property.
In Silva, the tenant could point to a specific way in which the landlord did not
meet the just cause requirement. Here, the Tenants can only point to a parking
dispute involving the neighbors and background information about Faciszewski's
parents to question the Landlords' sincerity. Although the Tenants may doubt
this sincerity, to defend the unlawful detainer action, the Tenants must prove that
the Landlords did not comply with Seattle's ordinance. They have not raised any
substantial material question of fact about compliance.
The Tenants assert that the information they presented to the trial court at
least raised a question of fact about the Landlords' just cause because the
claimed immediate family member did not intend to move in. However, the
Tenants' reliance on the evidence they presented is misplaced.
With SMC 22.206.160, the city provides tenants added protections not
available to them under Washington law.39 The city has adopted substantive
36 Silya, 94 Wash. App. at 736.
37 Sjjva, 94 Wash. App. at 736.
38 Silya, 94 Wash. App. at 736.
39 Ch. 59.18 RCW, Residential Landlord-Tenant Act of 1973.
-12-
NO. 72611-1-1/13
provisions and procedures applicable to the eviction process and safeguards to
ensure landlord compliance.40 The city also has provided remedies for a tenant
who questions the landlord's intent or compliance with Seattle's ordinance.41 The
tenant can demand a certification of the reason for termination. The landlord's
failure to provide the certification provides a defense to an eviction action. The
landlord's failure to carry out the reason stated in the certification provides the
tenant with a claim for damages up to $2,000. We decline the Tenants' request
that we rewrite the ordinance to provide another remedy.
Seattle's ordinance reflects policy decisions made by its legislative body.
The Tenants make policy arguments for an additional remedy that body did not
provide. They ask for the right to contest the truthfulness of the certification in
the unlawful detainer action. The city's legislative body has the authority to
consider this policy choice. That authority does not belong to this court, whose
fundamental function is review of lower court decisions.42
Because the Tenants did not believe the Landlords, they sought the
remedy provided by SMC 22.206.160(C)(4). Faciszewski filed the proper
certification with the city. After Faciszewski filed the certification, Seattle's
40 SMC 22.206.160(C).
41 SMC 22.206.160(C)(4), (7).
42 Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash. 2d 494, 505, 198 P.3d 1021
(2009).
-13-
NO. 72611-1-1/14
ordinance provided the Tenants with an exclusive remedy for a false certification,
a private action for damages up to $2,000.43
Unlawful detainer actions are summary proceedings.44 If a tenant does
not believe a landlord's stated reason for eviction, that tenant can file a complaint
with the city.45 The tenant's disbelief, even if justified, does not provide a
defense to an unlawful detainer action. Once the landlord files the proper
certification with the city, the tenant's remedy is limited to a private right of action
if the landlord does not fulfill the stated reason for eviction.46
Damages
The Tenants contend that they do not owe any unpaid rent. The Tenants
sent a check for the August 2014 rent after it was due. The Landlords rejected
the payment. On revision, the trial court concluded that the Tenants owed the
Landlords unpaid rent. RCW 59.18.290(2) states,
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 or her, and the prevailing party may recover his or
her costs of suit or arbitration and reasonable attorney's fees.
43 SMC 22.206.160(C)(7).
44 Indigo, 169 Wash. App. at 421; Carlstrom, 98 Wash. App. at 788.
45 SMC 22.206.160(C)(4).
46 SMC 22.206.160(C)(6), (7).
-14-
NO. 72611-1-1/15
A landlord who prevails in an unlawful detainer action is entitled to
judgment for the damages caused by an unlawful detainer.47 The Tenants assert
that "'[one] who prevents a thing may not avail himself of the nonperformance
which he has occasioned,'"48 but that did not happen here. The Landlords are
entitled to recover damages.
The Tenants' attempt to pay August rent was not an attempt to perform an
existing contract that the other party frustrated. The Landlords had terminated
that contract, and the Tenants unlawfully detained the property. Therefore, the
Landlords have not "availed" themselves of any nonperformance that they
caused. The judgment for unpaid rent payment placed the Landlords in the
position they would have been in had the Tenants not unlawfully detained the
rental property.
Attorney Fees
The Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, allows
the prevailing party in an unlawful detainer action to recover reasonable attorney
fees and costs.49 The trial court properly awarded the Landlords reasonable
attorney fees and costs. We award attorney fees and costs on appeal to
Landlords, as the prevailing party, provided they comply with RAP 18.1.
47 RCW 59.18.290(2).
48 Payne v. Ryan, 183 Wash. 590, 597, 49 P.2d 53 (1935).
49 RCW 59.18.290.
-15-
NO. 72611-1-1/16
CONCLUSION
Because the Landlords properly served a factually sufficient notice to quit
the premises that provided the Tenants with a notice containing sufficient facts to
support just cause to terminate the tenancy and the trial court properly awarded
the Landlords the unpaid rent, attorney fees, and costs, we affirm.
WE CONCUR:
ex ( ^ c^, L t\ j ,
&*&
-16-