                                                                           FILED
                                                                        August 15, 2017
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

FPA CRESCENT AS SOCIATES, LLC, a               )
Delaware limited liability company,            )         No. 34714-1-111
                                               )
                     Respondent,               )
                                               )
       V.                                      )         UNPUBLISHED OPINION
                                               )
JAMIE'S LLC, PENDLETON                         )
ENTERPRISES, LLC, a Washington                 )
limited liability company, d/b/a The           )
Daiquiri Factory Spokane; and JAMIE            )
PENDLETON, an individual,                      )
                                               )
                     Appellants.               )

       SIDDOWAY, J. -    This is the third time that the landlord-tenant dispute between

these parties has been before this court. The background details of what began as an

unlawful detainer proceeding are set forth in the decision in the tenants' initial, successful

appeal. See FPA Crescent Associates, LLC v. Jamie's LLC, 190 Wn. App. 666, 677, 360

P.3d 934 (2015) (FPA 1) 1.

       In this appeal, the tenants and their guarantor argue that following remand, the

trial court (1) erred in offsetting the landlord's contract damages against the tenants'


       1
        We will hereafter refer to cause number 32705-1-111 as FPA I, and cause number
34335-9-111 as FPA II.
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


award of attorney fees and costs and (2) violated the appearance of fairness doctrine. We

agree that the trial court erred in awarding and offsetting contract damages without a trial;

once again, we reverse the contract damages and fee award to the landlord. While we

find no violation of the appearance of fairness doctrine, we do find it necessary to remand

the tenants' attorney fee award to the trial court for reconsideration. We make no

attorney fee award on appeal. We remand for proceedings consistent with this opinion.

                            PROCEDURAL BACKGROUND

       FPA Crescent Associates, LLC (FPA), formerly leased commercial space in

downtown Spokane to Jamie's, LLC and Pendleton Enterprises, LLC. The lease was

guaranteed by Jamie Pendleton. On May 28, 2014, FPA filed a "Verified Complaint for

Unlawful Detainer" against the two tenants and Mr. Pendleton (hereafter, collectively

"Pendleton") alleging nonpayment of rent and breach of lease covenants "as a cause of

action for unlawful detainer." FPA I, Clerk's Papers (CP) at 12. The complaint set forth

four "cause[ s] of action," in the following order: "Action for Issuance of Writ of

Restitution," "Breach of Lease" (alleging unpaid rent), "Breach of Lease - Illegal

Actions" (alleging other breaches of the parties' lease), and, "Breach of Guaranty and

Contract." Id. at 16-18. The trial court ordered issuance of a writ of restitution to the

Spokane County Sheriff two weeks later, on June 11, 2014.

       Later in the month of June, FP A moved for and was granted partial summary

judgment on its second and fourth causes of action alleging failure to pay rent owed

                                              2
No. 34714-1-111
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


under the lease and a breach of Mr. Pendleton's personal guaranty. Judgment was

entered in FPA's favor for $21,245.61, consisting of (1) $2,229.61 in unpaid "[a]dditional

[r]ent," and (2) $19,061.00 in rent for the initial four months of the lease. Id. at 218-19,

282. The initial four months' rent had been abated, but abatement was forfeited under the

lease if Pendleton committed a default that it failed to cure. The judgment entered bore

interest at the 18 percent contract rate. The court also awarded FPA $49,870.50 in

attorney fees and costs.

       FP A had not provided Pendleton with notice and an opportunity to cure before

commencing its unlawful detainer action, which is required by RCW 59.12.030(3) when

unlawful detainer is based on nonpayment of rent. The trial court was persuaded by FPA

that it was entitled to proceed based on Pendleton's status us a holdover tenant under

RCW 59 .12.030( 1). An unlawful detainer action lies against a holdover tenant without

providing notice and an opportunity to cure. Although the 90-month term of Pendleton's

lease had not expired, FPA argued successfully in the trial court that it had the right under

its lease to terminate Pendleton's lease for a default in payment of rent without notice; it

had done so; and Pendleton was a holdover tenant by virtue of that early termination.

       In this court's published opinion in FPA I, we held that unlawful detainer against a

holdover tenant under RCW 59 .12.030(1) "is applicable only after the expiration of the

fixed term as specified in the lease agreement." FPA I, 190 Wn. App. at 677.

Concluding that FPA did not give proper notice under RCW 59.12.030(3), this court

                                              3
No. 34714-1-111
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


"reverse[d] the trial court's grant of summary judgment to FPA, h[e]ld that Pendleton

was not guilty of unlawful detainer, and dismiss[ed] FPA's unlawful detainer action

against Pendleton." FPA I at 678-79. Addressing Pendleton's request to direct the

superior court to order relief pursuant to RCW 59.12.090, 2 this court instead "remand[ed]

to the trial court for it to consider this issue after proper briefing and argument." FPA I at

679.

       After remand, Pendleton moved the trial court for an award of attorney fees and

costs as the prevailing party. In response, FPA argued that not all claims had been

dismissed. The trial court directed the parties to brief "whether counts 2-4 in the

complaint remain viable." CP at 60. Following review of the briefing, the trial court

concluded that this court dismissed only the "first cause of action, entitled, 'Action for

Issuance of Writ of Restitution,"' and that "[ s]ummary judgment on counts 2 and 4 was

reversed." CP at 251 ( emphasis added). It ruled that a judgment in favor of Pendleton on

the "unlawful detainer cause of action" would be entered upon the resolution of all claims

and that "[c]ounts 2-4 will be set on the court's calendar for trial." CP at 252.

       Pendleton attempted to appeal the trial court's order, contending it had ignored

this court's decision. When our clerk set the matter for a decision on whether the order


       2
         RCW 59.12.090 requires a plaintiff to post a surety bond "conditioned that the
plaintiff will prosecute his or her action without delay, and will pay all costs that may be
adjudged to the defendant, and all damages which he or she may sustain by reason of the
writ of restitution having been issued, should the same be wrongfully sued out."

                                              4
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


was appealable, both parties responded with briefing. FPA argued that dismissal of the

contract claims "would be giving Pendleton free rent just because FPA failed to give him

the 3-day notice." FPA II, Resp't FPA Crescent's Mem. Regarding Appealability at 4.

Instead, FPA argued,

        By reversing the summary judgment, this Court allowed the contract claims
        to have their deserved day in court where FP A can present evidence of the
        obligation to pay and the failure to pay, and can seek damages.

Id. at 7-8.

       A commissioner of this court decided the appealability issue. She recited the facts

that the trial court had awarded Pendleton attorney fees and had "set counts 2-4 of FPA's

complaint on its calendar for trial." FPA II, Comm'r Ruling at 2 (May 20, 2016)

(emphasis added). Concluding that what the parties really needed was a clarification of

whether this court's opinion disposed of all of FPA's causes of action or only the writ of

restitution, she referred the matter to the panel. Id.

       In an Order Granting Discretionary Review in Part and Clarifying Opinion Filed

October 20, 2015, the panel stated:

                 The October 20, 2015 opinion of this court filed in COA No. 32705-
        1-111:
               ( 1) Held that the trial court erred in granting FP A ... possession of
       the subject premises;
                (2) Reversed the trial court's grant of summary judgment to FPA;
       and
               (3) Remanded to the trial court the issue of Pendleton's costs,
       attorney fees, and damages as a result of the wrongful issuance of the writ
       of r:estitution.

                                               5
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


              In reversing the trial court's grant ofsummary judgment, we
       intended the trial court to have the ability to offset Pendleton's damages
       from FPA's contract damages. We did not intend to reopen the issue of
       how the trial court calculated FP A's contract damages. That issue was not
       appealed.

CP at 271-72 (emphasis added). Neither party sought reconsideration or review of the

clarifying opinion, which became final on June 27, 2016.

       A couple of weeks later, a status conference took place in the trial court. At that

time, and notwithstanding that the clarifying order repeated the ruling in the opinion of

this court that the trial court's grant of summary judgment to FP A was reversed, the trial

court treated its order granting partial summary judgment as a binding determination of

the contract issues. See Report of Proceedings (RP) at 5 (characterizing the final

judgment earlier entered as "a starting point" in arriving at a final judgment). It asked the

parties to submit briefing addressing the damage and attorney fee figures needed to arrive

at a final judgment.

       Even though FPA had reported to this court two months earlier that it was merely

looking for its "deserved day in court where FPA can present evidence of the obligation

to pay and the failure to pay, and can seek damages," 3 it now proposed to the trial court

that after determining the attorney fees and costs to which Pendleton was entitled, it:




       3
           FPA II, Resp't FPA Crescent's Mem. Regarding Appealability at 8.

                                             6
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


          •   Subtract from that the $21,245.61, plus interest, previously awarded
              Plaintiffs on Counts 2 and 4 (breach of contract); interest on that
              amount is $7,679.64; and,
          • Subtract $19,144.50 in Plaintiffs attorneys' fees incurred on the
              contract claims.
              Under this approach, the court needs to determine the amount of fees
       Defendants are entitled to on Count 1, subtract the $48,069.75 that Plaintiff
       requests, and enter final judgment on a new amount.

CP at 345. It argued that Pendleton was not entitled to recover any time on the contract

claims "because [FPA] prevailed on those claims." CP at 346.

      The trial court rejected Pendleton's protestations about the procedure being

followed and found that of 25 8 hours of attorney time claimed by Pendleton for success

on the unlawful detainer claim, 179 were reasonable, and that Pendleton's fee of $300 per

hour was also reasonable. The result was a total award of $53,700.

      The trial court found that FPA's attorneys reasonably spent 54.3 hours toward a

successful outcome on its contract claim and that the attorney's rate of $335 per hour-

and later $365-was reasonable. The result was an award of fees on the contract claim of

$19,144.50. Adding to that the contract damages it had awarded in its (reversed)

summary judgment decision and $7,670.64 in interest calculated at the 18 percent

contract rate, it awarded FPA a total of$48,081.70. Offsetting the two awards left a net

award to Pendleton of only $5,618.30.

      Following entry of the trial court's final judgment, Pendleton appeals.




                                            7
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


                                        ANALYSIS

       The unlawful detainer action in chapter 59.12 RCW provides an expedited
       method for resolving the right to possession and hastening the recovery of
       real property. MacRae v. Way, 64 Wn.2d 544, 546, 392 P.2d 827 (1964).
       "In such proceedings the superior court sits as a special statutory tribunal,
       limited to deciding the primary issue of right to possession together with
       the statutorily designated incidents thereto, i.e., restitution and rent or
       damages." Id. The primary issue to be resolved in an unlawful detainer
       action is the right to possession. Port of Longview v. Int 'l Raw Materials,
       Ltd., 96 Wn. App. 431, 436, 979 P.2d 917 (1999).

FPA I, 190 Wn. App. at 674-75. RCW 59.12.170 authorizes the court in a proceeding for

an unlawful detainer after default in the payment of rent to "find the amount of any rent

due" and enter a judgment thereon, as the trial court did here before the first appeal.

       Failure to follow the unlawful detainer statute defeats the court's jurisdiction.

Kessler v. Nielsen, 3 Wn. App. 120, 123, 472 P.2d 616 (1970) (citing Sowers v. Lewis, 49

Wn.2d 891,307 P.2d 1064 (1957)). Any orders, rulings, or factual determinations made

must be vacated. Angelo Prop. Co., LP v. Hafiz, 167 Wn. App. 789,822,274 P.3d 1075

(2012). Hence in FPA I, because FPA had not complied with statutory notice

requirements, we dismissed the unlawful detainer action and reversed the partial

summary judgment. "Rent or damages may only be recovered under the statute when

there is a right to possession. When this right is not present, the damages or rent must be

recovered in an ordinary civil action." Kessler, 3 Wn. App. at 123-24 (citing Stevens v.

Jones, 40 Wash. 484, 82 P. 754 (1905)).




                                              8
No. 34714-1-111
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


        Once the question of right to possession has resolved itself, a trial court may

convert an unlawful detainer action into an ordinary civil suit for damages. Munden v.

Hazelrigg, 105 Wn.2d 39, 45-46, 711 P.2d 295 (1985). In so holding in Munden, our

Supreme Court overruled prior case law, recognizing that permitting conversion of the

case after its unlawful detainer purpose was concluded is in the interests of judicial

economy and will spare parties the expense and inconvenience of maintaining two suits.

Id. at 46-4 7.

        At the time Pendleton attempted to file its second appeal, it provided us with a

copy of the trial court's order of March 28, 2016, which included a finding that

"[p]ossession of the premises is no longer an issue" and a conclusion of law that

"[b]ecause possession of.the premises is no longer at issue, this matter may be converted

to a civil action addressing the remainder of the claims." CP at 251-52. Both the trial

court, in its order, and FPA, in its submission on appealability, represented to this court

that the contract claims were being set for a future trial in the converted civil action for

damages. The apparent issue in seeking clarification was whether this court had

dismissed the action in its entirety, or left open the trial court's ability to convert it and

try the contract claims. This court relied on those representations in stating in its

clarification order that the trial court would be able to offset Pendleton's damages against

FPA's contract damages.




                                                9
No. 34714-1-111
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


       The trial court had no basis for awarding FP A contract damages and attorney fees

in its August 18, 2016 order and judgment because the contract claims have never been

tried. Before the first appeal, Pendleton resisted FPA's motion for partial summary

judgment on the legally correct basis that the trial court lacked jurisdiction, not on the

merits of the amount of rent that was owed.

       The statement in our clarifying order that the issue of the amount of contract

damages was not appealed was a correct statement. Where Pendleton was challenging

the court's jurisdiction to entertain the action on account of defective notice it could, but

was not required to, raise a dispute as to the amount FP A claims is owed. It chose not to.

This court's statement in the clarifying order that "[w ]e did not intend to reopen the issue

of how the trial court calculated FPA's contract damages" unfortunately led FPA and the

trial court to believe, in error, that the summary judgment rulings we reversed somehow

remained binding. CP at 271-72. Had we so held, it would have been error. Pendleton

had never had its day in court on the amount of rent owed or guaranteed.

       We reverse the Final Judgment and Findings of Fact, Conclusions of Law and

Order dated August 18, 2016, and direct the trial court to enter a revised judgment in the

amount of the attorney fees and costs to which Pendleton is entitled. We direct the trial

court to reconsider Pendleton's entitlement to attorney fees and costs, since the trial court

discounted Pendleton's award, stating:




                                              10
No. 34714-1-111
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


       At a minimum, one third of Pendleton's arguments in research, briefs, and
       argument addressed the proposition that no other claims could be heard
       under an "unlawful detainer" caption. That argument was rejected by the
       appellate court in its May 27, 2016, clarifying order acknowledging
       contract damages.

CP at 360. This court did not reject that argument. Pendleton correctly contended that

FPA's second and fourth causes of action-what FP A characterizes as its contract

claims-could not be heard in the unlawful detainer action until the right to possession

was resolved and the trial court converted the action into an ordinary civil suit for

damages.

       We reject Pendleton's contention that the trial court violated the appearance of

fairness doctrine by subjecting its claims for attorney fees to a different level of scrutiny

than the trial court applied to FPA's claim for attorney fees. Bias inferred by Pendleton

was attributable to a misperception by the court that FP A, not Pendleton, had been correct

about the jurisdictional issue that appears to have accounted for most of the fees and costs

incurred up to the time of the fee award. Having corrected that misperception, we rely on

the trial court to reconsider Pendleton's fee award.

       We decline to award attorney fees and costs to either side on appeal, recognizing

that this court's clarifying order in the prior appeal created confusion. 4




       4
         We point out that Judge Rebecca Pennell was not on the panel that decided the
prior appeal and did not sign the clarifying order.

                                              11
No. 34714-1-III
FPA Crescent Assocs., LLC v. Jamies 's LLC, et al.


       We reverse the Final Judgment and Findings of Fact, Conclusions of Law and

Order dated August 18, 2016. We direct the trial court to reconsider its award of attorney

fees and costs to Pendleton and to enter a revised judgment in the amount of the attorney

fees and costs to which it is entitled. We remand the now-converted civil action for trial.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                     d'ltlbw~
                                                     doway, J.
                                                                            1
                                                                                J:   ·



WE CONCUR:




                                     j

Pennell, J.




                                             12
