Keyes, Llc v. Myrna Contreras

20IS aug -a /; •; s^o
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
KEYES, LLC,
No. 73455-5-I
Respondent,
v. DIVISION ONE
APEX ENTERPRISES 2014, LLC dba UNPUBLISHED OPINION
Apex Adult Family Homes; MYRNA
CONTRERAS; and GEORGE P. TREJO
III, and all other occupants, FILED: August 8, 2016
Appellants.
Leach, J. — Myrna Contreras appeals the trial court's entry of judgment
against her in this unlawful detainer action.1 She contends that her landlord,
Keyes LLC, pursued eviction to retaliate against her. She claims that she cured
her default for unpaid rent by timely paying Keyes and that she raised a genuine
issue of material fact as to whether Keyes breached the implied warranty of
habitability. And she contends that the commissioner failed to consider the
evidence she submitted at her show cause hearing. Because Contreras does
not support her assignments of error with adequate legal argument and citations
to authority or provide an adequate record, we affirm.
1 Contreras and codefendant George Trejo III are proceeding pro se. Pro
se litigants are "bound by the same rules of procedure and substantive law as
attorneys." Westberq v. All-Purpose Structures Inc., 86 Wn. App. 405, 411, 936
P.2d 1175(1997).
No. 73455-5-1 / 2
Background
Apex Enterprises LLC leased a house in Kent, Washington, from Keyes
LLC on March 31, 2014. Apex's owner, Myrna Contreras, moved into the house
two weeks later.2
The lease is not part of the appellate record. Only those parts of it read
aloud at the trial court hearing are in the record. Keyes LLC's owner, Michael
Keyes, testified that the lease described itself as a commercial lease, that the
parties intended for Contreras to operate the house as an adult family home, that
Contreras was to pay $3,000 in rent on the tenth of each month, that late
payments would incur a 10 percent fee, and that Contreras would obtain
insurance for the house.3
The lease also provided that Keyes would connect the house to the Kent
sewer system.4 The house is connected only to a septic tank. Keyes testified
that the State does not license adult family homes that are not connected to
sewer but allows one resident to live in an adult family home without a sewer.
2 We refer to the defendants collectively as Contreras and to the plaintiff
as Keyes.
3The house was the former home of Keyes's mother, who at the time lived
in a different adult family home. Before signing the lease, Keyes and Contreras
discussed an arrangement under which Contreras would pay no rent, Keyes's
mother would live in the house, and Contreras would care for her as part of
running an adult family home. Contreras rejected that agreement, viewing it as
illegal, and the lease did not contain terms related to it. Keyes's mother died
soon after the parties signed the lease.
4 Keyes testified that the lease did not set a time frame for him to connect
the sewer, but that he had been "moving forward" on it.
-2-
No. 73455-5-1 / 3
The parties intended for only one adult-family-home resident to stay in the house
until Keyes connected the sewer.
Keyes asserted that Contreras also breached the lease by operating the
house as a boardinghouse rather than an adult family home. The parties agreed
that Contreras could accept one international student as a boarder. Contreras
acknowledged that she took on three. In March 2015, the City of Kent sent
Contreras a correction notice requiring her to obtain a home business license.
Contreras did not pay rent for eight months, May to December 2014. She
thus accrued $2,400 in late fees.5 On January 23, 2015, Keyes posted a 20-day
notice to cure. This demanded that Contreras pay the $2,400 in late fees,
provide proof of insurance, and repair and repaint the front door.6
Contreras did not pay the fees, obtain insurance, or repair the door within
20 days of receiving the notice.7 She testified that the City of Kent was
considering allowing her to host the three students without a business license.
On March 5, 2015, Keyes posted a three-day notice to pay rent or vacate.
Contreras attempted to pay Keyes on March 8, but Keyes told her he was out of
town and would return the next day. When he came to the house the next
morning, Contreras handed him an envelope containing $3,000 in money orders.
5 $2,400 is 10 percent of eight months' rent.
6 Keyes testified that Contreras painted the front door "extremely poorly"
and in hot pink, "a color that I do not approve." The commissioner found this a
"technical violation" but gave it little weight.
7 The commissioner did not rule on whether it was possible for Contreras
to obtain the full insurance the lease required but found that she breached the
agreement by not obtaining any kind of insurance.
-3-
No. 73455-5-1 / 4
He took the envelope and went outside. He returned 10 minutes later, said his
attorney told him not to accept the rent, and threw the envelope on the ground.
Keyes filed an unlawful detainer action against Contreras. A
commissioner conducted a show cause hearing the next month.
After hearing testimony from Keyes and Contreras, the commissioner
found that Contreras did not comply with the 20-day notice. She did not pay
$2,400.00 in late fees, obtain the required insurance, repair the front door, or
stop operating as a boardinghouse. He also found that Contreras did not quit the
premises within 20 days of the notice. Based on these facts, the commissioner
concluded that Contreras was in default, Contreras was guilty of unlawful
detainer, and the lease should be terminated. The commissioner entered
judgment against Contreras for $12,636.94, terminated the lease, and directed
the clerk to issue a writ of restitution restoring possession to Keyes.
Standard of Review
An unlawful detainer show cause hearing is a summary proceeding to
decide the right to possession of the property during a pending lawsuit.8 On
review, the appellate court reviews the record to see whether substantial
evidence supports the trial court's findings of fact and, if so, whether those
findings support the conclusions of law.9 Substantial evidence is enough
evidence to persuade a fair-minded person of the truth of the declared premise.10
8 Carlstrom v. Hanline. 98 Wn. App. 780, 788, 990 P.2d 986 (2000).
9 Casterline v. Roberts. 168 Wn. App. 376, 381, 284 P.3d 743 (2012).
10 Casterline. 168 Wn. App. at 381.
No. 73455-5-1 / 5
We consider unchallenged findings of fact to be verities on appeal.11
Unchallenged conclusions of law become the law of the case.12
"Passing treatment of an issue or lack of reasoned argument is insufficient
to merit appellate review."13
Analysis
Contreras makes four assignments of error. Because Contreras does not
provide either an adequate record or adequate briefing for this court to review
those assignments of error, we affirm the commissioner's ruling.
The record does not contain the parties' lease. Nor does Contreras
provide the 20 exhibits that her counsel apparently provided to the commissioner
on the day of the hearing. Both parties ask us to interpret the lease based on
portions read aloud at the hearing by counsel, witnesses, and the commissioner.
As the appellant, Contreras has the burden to provide a record adequate
to permit review of the issues she raises on appeal.14 Without this record, she
has no basis to challenge the sufficiency of the evidence to support the trial
court's factual determinations. The insufficient record here precludes review of
the assigned errors relating to the commissioner's factual findings.15
11 Casterline. 168 Wn. App. at 381.
12 King Aircraft Sales.. Inc. v. Lane. 68 Wn. App. 706, 716-17, 846 P.2d
550(1993).
13 Christian v. Tohmeh. 191 Wn. App. 709, 728, 366 P.3d 16 (2015),
review denied. No. 92837-1 (Wash. June 29, 2016).
14 Story v. Shelter Bay Co.. 52 Wn. App. 334, 345, 760 P.2d 368 (1988).
15 Bulzomi v. Dep't of Labor & Indus.. 72 Wn. App. 522, 525, 864 P.2d 996(1994).
No. 73455-5-1 / 6
In addition, Contreras's brief does not conform to the Rules of Appellate
Procedure. RAP 10.3(a)(5) requires that "[rjeference to the record must be
included for each factual statement." RAP 10.4(f) requires that references to
the record "designate the page and part of the record."16 Contreras's brief only
loosely complies with these rules; she supports few factual statements with
references to the record, and many of the references she provides are
inaccurate.
First, Contreras challenges the commissioner's grant of a writ of restitution
entitling Keyes to retake the property. She asserts that the commissioner erred
in finding unlawful detainer because Keyes violated the Residential Landlord-
Tenant Act of 1973 (RLTA)17 by retaliating against her assertion of rights as a
residential tenant.
Contreras's briefing of this issue does not apply legal authority to the facts
of her case. In particular, she identifies no evidence to counter the
commissioner's finding that the lease, formed between two companies for the
tenant to operate an adult family home, was a commercial one. Without the
lease, we cannot review its terms. The portion of the lease testified to at the
hearing provides substantial evidence for the commissioner's finding that it was
commercial.
16 See Bulzomi. 72 Wn. App. at 525-26.
17 Ch. 59.18 RCW.
-6-
No. 73455-5-1 / 7
The record provided does not show that the commissioner should have
applied the retaliation provisions of the RLTA to Contreras. Even if the RLTA
applied, Contreras does not explain what rights she asserted under it.18 Nor
does she provide evidence that she asserted those rights or that retaliation was a
substantial motivating factor for Keyes in posting the 20-day notice to cure.19
Thus, Contreras's brief and the record are inadequate for us to review this
issue.20
Second, Contreras contends that she cured her default by tendering
$3,000 to Keyes on March 9, 2015. She asserts that Keyes accepted the
payment when he took the envelope containing it and did not return it until 10
minutes later, after speaking to his lawyer. Keyes responds that he did not
accept the rent and, even if he had, that the lease contains a nonwaiver
provision.
In general, when a tenant fails to pay rent and the landlord accepts later
rental payments, that acceptance does not cure the tenant's other breaches.21
Instead, "the landlord has merely waived a right under the statute to declare
18 Contreras's declaration in the record asserts that Keyes did not demand
payment of late fees until she refused to modify the lease to allow him to rent out
part of the house (a kitchen, extra room, and garage).
19 See Port of Longview v. Int'l Raw Materials. Ltd.. 96 Wn. App. 431, 444,
979 P.2d 917 (1999) (requiring evidence that protected activity was "a substantial
or motivating factor in the Port's adverse decision to seek eviction").
20 Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828
P.2d 549 (1992); RAP 10.3(a)(6).
21 MH2 Co. v. Sun M. Hwang. 104 Wn. App. 680, 684, 16 P.3d 1272(2001).
No. 73455-5-1 / 8
forfeiture for the nonpayment."22 That waiver does not extend to "a continuing
breach or any future noncontinuing breaches."23 The landlord can thus declare
forfeiture for a new breach or an older, continuing one.24
Even if we assume that Keyes accepted payment of the late fees by taking
the envelope, he would not have waived other, continuing breaches of the lease,
including Contreras's failure to obtain any insurance and operating the property
as a boardinghouse. The unchallenged findings of fact would still support the
commissioner's conclusions of law.
Third, Contreras asserts that the commissioner abused his discretion by
not setting the matter for trial. She suggests that a trial is necessary to determine
whether Keyes breached the implied warranty of habitability, which she claims
would give her a defense to unlawful detainer.25 Contreras does not support this
assignment of error with citations to the record or adequate legal argument.
Therefore, we decline to consider it.26 We also note, again, that the
commissioner made a supported finding that the lease here was commercial, not
residential; thus, the implied warranty of habitability would not apply.27 And even
if it did, Contreras cites no evidence that Keyes breached the implied warranty of
22 MH2Co.. 104 Wn. App. at 684.
23 MH2 Co.. 104 Wn. App. at 684.
24 MH2 Co.. 104 Wn. App. at 684.
25 A tenant in a residential unlawful detainer action may raise a defense
based on a landlord's breach of the implied warranty of habitability. Foisv v.
Wvman. 83 Wn.2d 22, 31-32, 515 P.2d 160 (1973).
26 RAP 10.3(a)(6).
27 In Washington, the implied warranty of habitability does not generally
extend to commercial leases. Olson v. Scholes. 17 Wn. App. 383, 392, 563 P.2d
1275(1977).
-8-
No. 73455-5-1 / 9
habitability. The commissioner did not abuse his discretion in declining to set a
trial.
Finally, Contreras contends that the commissioner did not read or
consider documents she submitted at the hearing. She cites no evidence for this
assertion. The record shows that Contreras did not submit those documents until
the hearing, but that the commissioner accepted them as exhibits and reviewed
them in the limited time he had. Contreras did not make the exhibits part of the
record, so we cannot tell whether they would have raised an issue for trial.
Keyes requests an award of attorney fees on appeal based on a lease
provision. Because the record does not include that provision, we deny the
request.
Conclusion
We affirm the trial court.
WE CONCUR:
(/CfftfS.