Opinion
No. 66662-2-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Pierce County, No. 08-2-06664-4, James R. Orlando, J., entered December 31, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Lau and Spearman, JJ.
Where the trial court grants a party's motion for leave to amend its pleadings, but the party thereafter fails to file its amended complaint, the claims alleged solely in that complaint are not properly within the case. Here, the amended complaint was never filed, and, thus, only those allegations set forth in the sole complaint actually filed are properly within this case. Because dismissal of the only claim set forth in that complaint was proper, the trial court did not err by granting the opposing party's motion for summary judgment. Accordingly, we affirm.
I
In March 2008, Catherine Hill filed a complaint in the Pierce County Superior Court, alleging that she sustained serious injury when she tripped in an open tear in her rental unit's carpet. The complaint alleges that Hill's injury was caused by the failure of Windsong Village Apartments, its owner, and its management company (collectively, Windsong) to repair the damaged carpet "after being repeatedly notified of the dangerous conditions." Clerk's Papers (CP) at 6.
The complaint alleges a sole cause of action, entitled "Breach of Contract." CP at 5. In support of this claim, the complaint sets forth a provision of the lease agreement between Hill and Windsong, which provides that both the landlord and tenant "agree to comply in good faith with all terms and conditions of [the] lease and with all applicable law." CP at 5. The complaint then identifies the applicable law as C.F.R. § 982.401(g), a provision of Title 24 of the Code of Federal Regulations establishing standards for federally-subsidized housing units. The complaint identifies no other applicable law that was purportedly violated by Windsong's alleged failure to repair the damaged carpet.
Windsong filed a motion for summary judgment, seeking dismissal of Hill's claim. Windsong contended in its motion that the monetary damages sought by Hill in her breach of contract claim were barred by the economic loss rule. It further asserted that Hill's complaint had alleged neither a common law negligence claim nor a claim pursuant to the Washington Residential Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW, but that, if it had, such claims would also be properly dismissed on summary judgment.
Hill thereafter filed a motion for leave to amend her complaint. As required by CR 15(a), she attached a copy of the proposed amended complaint to her motion. Hill's proposed amended complaint set forth three causes of action in addition to the breach of contract claim alleged in her initial complaint: (1) breach of a covenant to repair; (2) breach of the implied warranty of habitability; and (3) violation of the RLTA. Windsong filed a memorandum opposing Hill's motion for leave to amend; the trial court granted Hill's motion. However, inexplicably, Hill never filed the amended complaint.
In December 2009, the trial court granted Windsong's motion for summary judgment. Hill thereafter filed a motion for reconsideration, which the trial court subsequently denied.
Hill appeals.
II
Where a responsive pleading has been served, a party may amend its pleading only by leave of the court. CR 15(a). "If a party moves to amend a pleading, a copy of the proposed amended pleading . . . shall be attached to the motion. If a motion to amend is granted, the moving party shall thereafter file the amended pleading and . . . serve a copy thereof on all other parties." CR 15(a) (emphasis added). This is consistent with the mandate of rule 5 that "[c]omplaints shall be filed as provided in rule 3(a)." CR 5(d)(1).
Here, Hill moved, pursuant to CR 15(a), for leave to amend her initial complaint to allege claims for breach of a covenant to repair, breach of the implied warranty of habitability, and violation of the RLTA. Notwithstanding the fact that the trial court granted Hill's motion — thereby entitling her to file her amended complaint — Hill never did so. Significantly, CR 15(a) explicitly requires that the party seeking to amend its complaint actually file the amended complaint. A similar requirement is found in CR 5(d)(1). Because Hill failed to do so, those causes of action set forth only therein are not within this case. The sole cause of action properly presented for our review is that cause of action set forth in the only complaint actually filed.
In her reply brief, Hill alleges that the problem created by her failure to file the amended complaint is merely one of "notice" to the opposition. This is not so. Obtaining permission from the court to perform an act is not the same as actually performing the act. Both CR 15(a) and CR 5(d)(1) are explicit. Asserting an intention to comply with these rules is not a substitute for actual compliance.
We note that, although not briefed by the parties, CR 15(b) does not provide a safe harbor for Hill. Never deemed clearly applicable to summary judgment proceedings, CR 15(b) addresses situations in which a party impliedly consents to the trial of certain issues. It provides that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings," and, in such a case, failure to amend the pleadings to conform to the evidence "does not affect the result of the trial of [those] issues." CR 15(b).
Here, the trial court made no finding that Windsong had impliedly consented to trying the claims set forth in Hill's proposed amended complaint. Indeed, the trial court's grant of Hill's motion for leave to amend would be inconsistent with such a finding, as no implied consent is necessary where the claims are properly pleaded and, therefore, within the case. Moreover, finding that Windsong impliedly consented to trying the claims set forth in Hill's proposed amended complaint is inconsistent with the actual facts, given that Windsong opposed Hill's motion for leave to amend her complaint to add those claims. The trial court explicitly permitted Hill to add the claims set forth in her proposed amended complaint, and we will neither interpret nor apply CR 15(b) in such a fashion so as to render meaningless some or all of the provisions of CR 15(a).
III
Hill's initial complaint alleges that Windsong's failure to repair the damaged carpet in her apartment breached the provision of the lease agreement requiring that Windsong "comply . . . with all applicable law." CP at 5. The complaint identifies a provision of Title 24 of the Code of Federal Regulations as the single applicable law with which Windsong allegedly failed to comply. However, because the Code provision identified is inapplicable here, summary judgment dismissal of Hill's only properly-pleaded cause of action was appropriate.
Although the initial complaint is not entirely clear, the parties apparently gave it the same reading that we do here — that only a single cause of action, breach of contract, was pleaded and that the purported breach was based solely upon Windsong's alleged violation of the provision of the Code of Federal Regulations identified by Hill in the complaint. Otherwise, Windsong would not have indicated to the trial court that Hill's complaint did not set forth other potential claims, and Hill would not have found it necessary to move for leave to amend the complaint so as to add those additional claims. Thus, our reading of the complaint is consistent with the parties' behavior and the manner in which the case was litigated.
Housing quality standards for housing units participating in the federal Section 8 housing assistance program are set forth in Title 24 of the Federal Code of Regulations. See 24 C.F.R. § 982.401. Hill contends that Windsong, by not repairing the damaged carpet, violated the provision of Title 24 which provides that "[t]he condition and equipment of interior and exterior stairs, halls, porches, walkways, etc., must not present a danger of tripping and falling. For example, broken or missing steps or loose boards are unacceptable." 24 C.F.R. § 982.401(g)(2)(iv).
However, a reading of this regulation as a whole makes clear that it does not apply to the damaged carpet in Hill's apartment. The provision cited by Hill is set forth within a broader provision entitled "structure and materials." 24 C.F.R. § 982.401(g). The "performance requirement" for that section of the regulation requires that the housing unit be structurally sound. 24 C.F.R. § 982.401(g)(1). The provision cited by Hill is among the "acceptability criteria" related to the structural soundness performance requirement. See 24 C.F.R. § 982.401(g)(2)(i)-(v). Thus, this provision sets forth housing standards related only to the structural soundness of the housing unit. Because the damaged carpet is not a defect in the soundness of the apartment's structure, Windsong did not violate this regulation by not repairing the carpet. Thus, the trial court properly dismissed on summary judgment Hill's breach of contract claim premised upon Windsong's alleged violation of this regulation.
Because the only cause of action properly set forth in the pleadings was premised upon Windsong's alleged violation of a federal regulation that does not apply to the defect alleged herein, summary judgment dismissal was appropriate.
Affirmed.