Opinion
No. 30315-9-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 02-2-01822-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Jay B. Roof.
Counsel for Appellant(s), Ahmet Chabuk, Attorney at Law, 11663 Ivy Ln NW, Silverdale, WA 98383-8881.
Counsel for Respondent(s), Joel Cartwright Merkel, Attorney at Law, 1001 4th Ave Ste 4050, Seattle, WA 98154-1119.
William J. and Natasha Sesko (Sesko) entered into a month-to-month lease to rent a portion of Paul McConkey's (McConkey) property. Because of Sesko's illegal use of the property, McConkey issued a notice to vacate. McConkey subsequently obtained a writ of restitution for Sesko's continued unlawful detainer of the property. Sesko appeals, arguing that the trial court erred in (1) failing to enter findings of fact and conclusions of law on the attorney fees award; (2) denying his motion for reconsideration; (3) authorizing the issuance of a writ of restitution; (4) awarding a judgment in favor of McConkey; (5) failing to consider his counterclaim; (6) finding that he unlawfully detained the property; and (7) admitting Exhibit 11, McConkey's list of clean-up expenses. McConkey cross-appeals, arguing that the damage award should have been based on the double damages provision of the unlawful detainer statute and that he should have received all of his requested fees and costs. Finding no error, we affirm.
William and Natasha Sesko are the named appellants and were the defendants below. William Sesko has subsequently died.
I. FACTS
In January 2001, Sesko entered into a written month-to-month lease for a portion of McConkey's property to be used by Sesko for outdoor storage. Rent was due 'in advance of the first day of each calendar month.' Clerk's Papers (CP) at 63. The lease stated that 60 days' notice was required to extend the lease, but it did not include a notice provision for termination.
On February 7, 2002, McConkey received a cease and desist order from the City of Bremerton notifying him that Sesko was using the leased premises as an illegal junkyard. On February 27, McConkey served Sesko a 20-day notice to vacate based on Sesko's illegal use of the property.
Sesko asserted that the lease required 60 days' notice to terminate the agreement. In a March 5 letter, McConkey acknowledged that the lease did not indicate a notice period for terminating the lease, and permitted Sesko to remain on the property until May 1, just over 60 days from the original February 27 notice to vacate. Sesko stopped paying rent after receiving the notice to vacate in February.
On May 23, McConkey served a three-day notice to vacate based on both Sesko's unlawful use of the premises and failure to pay rent for March, April, and May. Sesko did not vacate or pay the overdue rent. On June 4, McConkey filed an unlawful detainer action against Sesko. A show cause hearing was scheduled for June 28.
The day before the June 28 hearing, Sesko paid McConkey $5,130 for rent, interest, and late fees through July. The amount was consistent with the itemized bill McConkey had given Sesko on June 18. McConkey and Sesko then agreed that Sesko would remove the remaining items from the property by July 31. The court entered an order for a writ of restitution in favor of McConkey, stating that the writ would issue if Sesko did not vacate the property by July 31.
Sesko failed to remove the remaining belongings by July 31, and the court issued the writ of restitution on August 2. The sheriff ousted Sesko from the premises on August 12. At the time of his ouster, Sesko still had possessions on the property, which McConkey later paid someone to remove.
A trial on the damages portion of the unlawful detainer action was held on January 21, 2003. McConkey requested judgment against Sesko for $15,000.62, based on double rent from March through August, late fees, interest, clean-up costs, and attorney fees. The court granted McConkey a judgment that doubled only the August rent, and included McConkey's requested clean-up costs, reasonable attorney fees of $3,805, and $244.74 in other costs.
On March 17, Sesko moved for reconsideration. The court denied this motion. On March 28, 2003, Sesko submitted objections to the proposed judgment. Based on these objections, the court reduced the clean-up costs awarded to McConkey by $309.44, but awarded him an additional $400 in attorney fees.
Sesko appeals and McConkey cross-appeals.
II. ANALYSIS
Sesko has not included any legal authority for her arguments on appeal. Nor has she cited to the relevant portions of the record to support the majority of her assertions. This court need not consider arguments that the appellant has not supported by pertinent authority, references to the record, or meaningful analysis. RAP 10.3(a); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004); Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989). For this reason, we only briefly address the issues she raises.
This court has already rejected the briefs of both parties in this appeal, and the current briefs are the second attempts of the parties to properly argue their assignments of error.
III. Findings of Fact and Conclusions of Law on Attorney Fee Award
Sesko asserts that it was error for the trial court not to enter findings of fact and conclusions of law to support its attorney fee award to McConkey.
Both Sesko and McConkey dispute the court's calculation of attorney fees. A trial court must enter findings of fact and conclusions of law supporting an award of attorney fees. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). But we will not disturb a trial court's award of fees absent an abuse of discretion. Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 519, 910 P.2d 462 (1996).
The trial court issued a letter decision following a two-day hearing on the damages portion of the unlawful detainer action. The letter explains the court's consideration of each party's arguments, its ruling on the unlawful detainer claim, and, although not denoted as such, it recites a finding of fact that the 'contract calls for an award of reasonable attorney's fees and costs to a prevailing party.' CP at 32. The letter also contains the court's legal conclusions that McConkey was the prevailing party and his reasonable attorney fees were $3,805 and his allowable costs were $244.74. See Backlund v. Univ. of Washington, 137 Wn.2d 651, 656-57 n. 1, 975 P.2d 950 (1999).
Sesko's only argument is: 'It was error to award attorneys [sic] fees without an accounting of time spent on portion of legal work from the time the court found that Sesko was not in unlawful detainer to the time of entry of the judgement [sic].' Br. of Appellant at 9. This argument is without merit.
McConkey's counsel submitted an accounting of his time spent on the case from May 21, 2002, through February 19, 2003. Both the applicable unlawful detainer statute and the parties' lease authorize reasonable attorney fees. RCW 59.18.290.
McConkey appeals the difference between the amount of fees he requested and the court's award of 'reasonable fees' because no explanation accompanied the court's ruling. McConkey asserts that he originally asked for $6,415 in attorney fees at trial, and the court granted only $4,205. But the record indicates that he asked for $6,040 and received $4,205.
This sum differs from the amount in the trial court's letter decision because it includes an additional $400 in fees, awarded on April 4, 2003.
Although it is better practice for the trial court to enter formal findings of fact and conclusions of law whenever fees are disputed, the written record here is adequate for us to review the fee award. The record supports the trial court's determination that $4,205 is a reasonable sum for the services rendered in this case. The trial court did not abuse its discretion in setting the attorney fees and cost award accordingly.
McConkey also asks for attorney fees on appeal. But McConkey does not support his request with argument, recite the appropriate rule, or devote a special section of his brief to the request for fees. To obtain costs and fees incurred on appeal, a party must comply with RAP 18.1(b), which requires a party to advise the appellate court of its request by devoting a section of the brief to the request for the fees or expenses. Hedlund v. Vitale, 110 Wn. App. 183, 190, 39 P.3d 358 (2002). A party is not entitled to an award of attorney fees under RAP 18.1(b) if its brief contains no argument or citation of authority supporting the award. Phillips Bldg. Co., Inc. v. An., 81 Wn. App. 696, 705, 915 P.2d 1146 (1996). Because McConkey fails to comply with RAP 18.1(b), we deny his request for fees on appeal.
IV. Motion for Reconsideration
Sesko further argues that the trial court erred in denying her motion for reconsideration.
This court reviews a decision on a motion for reconsideration for an abuse of discretion. Holaday v. Merceri, 49 Wn. App. 321, 324, 742 P.2d 127 (1987). But appellate courts generally do not consider issues that were not raised below. Wash. Fed'n of State Employees, Council 28 v. Office of Fin. Mgmt., 121 Wn.2d 152, 163, 849 P.2d 1201 (1993).
Sesko appears to argue that because McConkey demanded rent after he issued a notice to vacate the premises on February 27, the notice to vacate was nullified. But this argument was not a part of the motion for reconsideration and it is not properly before us on appeal.
V. Unlawful Detainer Finding and Entry of Judgment
Sesko also asserts that the trial court's ruling on unlawful detainer was inconsistent with its entry of a writ of restitution and a judgment in favor of McConkey.
'An unlawful detainer action is a summary proceeding to determine the right to possession of property.' Josephinium Assos. v. Kahli, 111 Wn. App. 617, 624, 45 P.3d 627 (2002). A tenant of real property is guilty of unlawful detainer when he continues to occupy the property after failing to pay rent, and the lessor serves written notice to require payment of rent or surrender of premises, and the tenant does not comply within three days. RCW 59.12.030(6). RCW 59.12.170 'authorizes a compensatory award during the lawful possession period (past due rent) and a doubling of damages incurred for the lawful detainer period.' Sprincin King St. Partners v. Sound Conditioning Club, Inc., 84 Wn. App. 56, 65, 925 P.2d 217 (1996).
Sesko repeatedly asserts that the trial court found that she did not unlawfully detain the property. The record does not support her assertion. On June 28, the trial court resolved that a writ of restitution would issue if Sesko did not remove the remaining belongings from McConkey's property by July 31. McConkey initially asked that Sesko be required to be off the property within seven days of the June 28 hearing. But Sesko tendered payment for rent through July before the hearing. The trial court held that Sesko was in unlawful detainer status beginning August 1, 2002. Thus, the court granted McConkey's motion and issued the writ of restitution based on Sesko's failure to remove her possessions by July 31.
Sesko erroneously states that the court made its ruling on July 28, 2002.
McConkey stated that he did not accept the payment and offered that the money be paid into the court to proceed with the writ hearing. He also stated that the sum was insufficient to pay for rent through July. But the itemized bill he gave to Sesko on June 18 contradicts this assertion.
The trial court's ruling was neither inconsistent nor erroneous. The judgment entered against Sesko included double damages for the unpaid August rent, costs McConkey incurred to clean up the premises, and reasonable attorney fees.
RCW 59.12.170. Judgment:
If upon the trial . . . the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and if the proceeding be for unlawful detainer after neglect or failure to perform any condition or covenant of a lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of the lease, agreement or tenancy. . . . [T]he court . . . shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer . . . and, if the alleged unlawful detainer be after default in the payment of rent, find the amount of any rent due, and the judgment shall be rendered against the defendant . . . for twice the amount of damages thus assessed and of the rent, if any, found due.
VI. Counterclaim
During trial, Sesko argued that the amount of damages should have been reduced because McConkey prevented her use of the property for approximately two weeks in May, and because McConkey kept some of his own property in the area she rented. Sesko now asserts that the trial court neglected to consider this argument.
When a court hears an unlawful detainer action, it '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 Wn.2d 564, 571, 663 P.2d 830 (1983). The only exception to this limited jurisdiction arises when the counterclaim 'is based on facts which excuse a tenant's breach.' Munden v. Hazelrigg, 105 Wn.2d 39, 45, 711 P.2d 295 (1985); see Sprincin, 84 Wn App. at 66.
Sesko's objection to McConkey's use of the leased property was not pleaded, nor did she assert that it was the reason she withheld rent in May. Her objection arose during oral argument on whether she unlawfully detained the premises. Furthermore, Sesko had not paid any rent for March, April, or May.
Sesko offered no evidence of McConkey's unlawful entry onto the premises after terminating the lease on May 1. Thus, there is no evidence that would excuse Sesko's breach of the lease for nonpayment or her illegal storage activities. The court did not abuse its discretion in declining to rule on this claim.
VII. Exhibit 11
Sesko asserts that the trial court erred in admitting Exhibit 11 because she had not seen the exhibit before the hearing. Sesko does not cite to the record where this exhibit is located, but we assume it is at Clerk's Papers 108-10 and Record of Proceedings 29.
Exhibit 11 listed McConkey's expenses for cleaning up the leased property and removing Sesko's belongings after she vacated the premises. The lease required Sesko to leave the premises 'broom-clean' when the tenancy expired. CP at 65. The court admitted the exhibit only to show what McConkey alleged his expenses were, not to indicate whether the expenses were appropriate.
Sesko does not assert any legal error in the court's decision to admit Exhibit 11 for this limited purpose and we refuse to find error. VIII. Cross Appeal for Double Damages for Past Due Rent and Clean-up Costs
McConkey asserts that he is due double rent for March through July, and double his clean-up costs.
The purpose of the double damages provision of the unlawful detainer statute is 'to penalize the tenant for the refusal to surrender possession when the tenancy terminates.' Sprincin, 84 Wn. App. at 65. But courts strictly construe unlawful detainer statutes in favor of the tenant. Housing Auth. of City of Everett v. Terry, 114 Wn.2d 558, 563, 789 P.2d 745 (1990).
McConkey waived the right to demand double rent for March through July when he agreed to extend Sesko's lawful possession of the premises to July 31, and accepted full payment of the rent before the June 28 show cause hearing.
There is no authority supporting McConkey's argument that clean-up costs are considered 'damages' for purposes of the unlawful detainer double payment provisions. The purpose of double damages is to encourage hold-over tenants to vacate the property when their tenancy is terminated. Sprincin, 84 Wn. App. at 65. The trial court concluded that 'the cost of clean up would be a necessary expense regardless of whether Mr. and Mrs. Sesko unlawfully detained the property.' CP at 32. The trial court did not err in its conclusion.
IX. Contested Presentation of Judgment
At the hearing on presentation of the judgment, Sesko objected to the amount claimed by McConkey as clean-up costs. As a result of Sesko's objection and argument, the court reduced the award of clean-up costs by $309.44.
McConkey argues that this objection was untimely and that the court erred in considering Sesko's argument. But McConkey provides no legal authority or meaningful analysis for this argument, and we therefore decline to consider the issue. RAP 10.3(a); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
We affirm the trial court's order for issuance of a writ of restitution, its damages judgment, and the award of attorney fees and costs.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.