Opinion
No. 63674-0-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-2-03724-8, Michael J. Trickey, J., entered May 15, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Becker, JJ.
Marylin Taylor appeals an order granting a writ of restitution in a residential unlawful detainer proceeding. She assigns error to the lack of findings of fact and conclusions of law in support of granting the writ. She also claims counsel for the landlord in this action had no authority to proceed on behalf of the landlord. She next claims that the court improperly took notice of certain matters. Finally, she argues the plaintiff in this action did not have authority to bring this unlawful detainer action. Because the appellate record is insufficient to support some of these claims and the remaining claims are without merit, we affirm.
Marylin Taylor signed a lease agreement dated April 1, 2008 with John and Evangeline Zandt. The lease provided that Taylor would rent one room in the Zandts' home for a term of 12 months commencing on April 5, 2008, and terminating on April 1, 2009. Rent in the amount of $350 per month, plus additional utilities, was due on the first day of each month. In addition, the lease included an addendum stating that rent would increase to $700 per month on August 1, 2008, or if Taylor's daughter moved in with her, whichever occurred first.
On December 30, 2008, Dick Mayberry, apparently acting as an agent for Evangeline Zandt, served Taylor with a three day notice to pay rent or, in the alternative, vacate the premises. In January 2009, Evangeline Zandt commenced this unlawful detainer action. The requests for relief included a request for issuance of a writ of restitution and judgment for unpaid rent and other charges, costs and attorney fees.
Taylor, acting pro se, answered the complaint raising various defenses. She also counterclaimed on the basis of matters we need not discuss in this opinion.
A hearing on a motion to continue the trial date was held on March 9, 2009. At that hearing, the court entered an order continuing the matter to April 16, 2009. The order stated that a writ of restitution would issue if Taylor had not vacated the leased premises by that date.
By letter dated April 15, 2009, Taylor informed the court that "she has moved out of the [leased] premises" as of that date.
On April 16, 2009, the date of the continued hearing, the court entered an order stating:
This Court, having scheduled a motion for a writ of restitution having received the Declaration of Defendant stating she has moved from the premises and having learned from counsel for Plaintiff that she has not vacated the premises and the court being unavailable for hearing[,] It is hereby ordered that the hearing is rescheduled to Tuesday, April 21, 2009 at 3:30 p.m. Plaintiff's counsel shall [see] that a copy of this order is served on Defendant.
Clerk's Papers at 103.
On April 21, 2009, the court held a final hearing on the matter. Taylor did not appear. The court noted the parties' March 9, 2009 agreement that a writ of restitution would issue if Taylor had not vacated the premises by April 16, 2009. The court then read into the record Taylor's April 15, 2009 statement representing that she had vacated the premises. Counsel for Evangeline Zandt indicated that "there is some evidence that either she is residing or that she has come back to the premises." Being duly advised, the court then entered its Order Granting Writ of Restitution.
It appears from the briefing and the record on appeal that Taylor moved for relief from that order, which the court denied in an order entered on May 15, 2009.
Taylor appeals.
WRIT OF RESTITUTION
Taylor first assigns error to the lack of findings and conclusions to support granting the writ of restitution. Although her assignment of error states that the court "denied" the writ of restitution, that assertion is plainly wrong. In any event, findings and conclusions are not required on motions, as Civil Rule 52(a)(5)(B) plainly states. Accordingly, they were not required for the request for the writ of restitution. Moreover, Taylor fails to claim any prejudice by the absence of findings and conclusions.
She next argues that counsel for Zandt had no authority to proceed in this case and that the court improperly took notice of certain matters. Neither claim is documented by evidence in this record. Thus, we reject them both.
Taylor's remaining arguments appear to be based on the view that the trial court abused its discretion in granting the writ of restitution. We disagree.
RCW 59.12.030(3) provides, in relevant part, that a tenant is guilty of unlawful detainer when she:
continues in possession in person or by subtenant after a default in the payment of rent, and after notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises, served (in a manner in RCW 59.12.040 provided) in behalf of the person entitled to the rent upon the person owing it, has remained uncomplied with for the period of three days after service thereof.
RCW 59.12.030 requires proper notice of a default in payment of rent as a "`jurisdictional condition precedent'" to an unlawful detainer action. Without competent proof of compliance with the necessary notice requirements, a writ of restitution is improperly entered. Case law distinguishes between "time and manner" requirements for service of the notice and the "form and content" of the notice. With respect to "time and manner" requirements, strict compliance is necessary. By contrast, substantial compliance with the "form and content" of the notice is sufficient.
Housing Auth. of City of Everett v. Terry, 114 Wn.2d 558, 564-65, 789 P.2d 745 (1990) (quoting Sowers v. Lewis, 49 Wn.2d 891, 894, 307 P.2d 1064 (1957)).
Housing Auth. of City of Pasco and Franklin County v. Pleasant, 126 Wn. App. 382, 392, 109 P.3d 422 (2005).
Marsh-McLennan Bldg., Inc. v. Clapp, 96 Wn. App. 636, 640 n. 1, 980 P.2d 311 (1999) (internal quotation marks and citations omitted).
Community Invs., Ltd. v. Safeway Stores, Inc., 36 Wn. App. 34, 37-38, 671 P.2d 289 (1983).
Foisy v. Wyman, 83 Wn.2d 22, 32, 515 P.2d 160 (1973).
This court reviews issues of law de novo.
State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991).
Taylor appears to contend that the trial court lacked subject matter jurisdiction to grant the writ of restitution. She is mistaken.
This record shows that the three day notice was served on Taylor in compliance with one of the approved methods of service set forth in RCW 59.12.040. Thereafter, she failed to vacate or pay the required rent. This was an adequate basis for Zandt to commence this special statutory procedure for unlawful detainer. In short, there was subject matter jurisdiction.
In any event, she impliedly waived any claim to lack of jurisdiction by complying with the court's order requiring vacation of the property. She informed the court, in writing, that she had done so without mentioning any lack of subject matter jurisdiction for the court to act.
Taylor also argues that neither Evangeline Zandt nor Dick Mayberry had authority to evict her because John Zandt was the true owner of the property.
This claim is also without merit.
In sum, the court did not abuse its discretion in granting the writ of restitution. Moreover, it did not abuse its discretion in denying Taylor's subsequent application for relief from that order.
We affirm the order granting the writ of restitution.