                                                                                       LED
                                                                           COURT OF APFVALS
                                                                               DIVISION II

                                                                          201    AUG - 5 AM10:39
      IN THE COURT OF APPEALS OF THE                                                                 TTON
                                                                STATFi,: F ,.
                                                 DIVISION II               BY -
                                                                                       E       TY

In re the Estate of:                                                            No. 44350 -3 -II
                                                                            consolidated with

WILLIAM P. BREMER,                                                              No. 44494 -1 - II


                          Deceased.


                                                                    UNPUBLISHED OPINION




          MELNICK, J. —      Glen Walker and Scott and Elizabeth Hawton (collectively " purchasers ")

entered   into   a real estate contract with      William Bremer.     After the purchasers failed to make


payments under the contract, William' obtained a forfeiture of the contract under the Real Estate

                                 2
Contract Forfeiture Act.             When Walker refused to vacate the property, Kevin Bremer, the

personal representative of William' s estate, filed an unlawful detainer action and obtained a writ

of restitution   to   remove     Walker from the property. Walker appeals the superior court' s denial of


his motion to revise the order for a writ of restitution, the superior court' s dismissal of his suit to

vacate the forfeiture and for recission of the real estate contract, and the superior court' s award


of   attorney fees to Kevin.         Because the Real Estate Contract Forfeiture Act specifically allows

for the use of an unlawful detainer action, Kevin properly brought such action, and because

Walker failed to properly serve Kevin the summons and complaint in his suit to vacate the

forfeiture, the       superior   court   properly dismissed Walker'   s   suit   to   vacate   the forfeiture.   We


affirm.




1 We refer to William Bremer and Kevin Bremer by their first names to avoid confusion.
2
    Chapter 61. 30 RCW.
44350 -3 -II / 44494 -1 - II



                                                               FACTS


I.           FORFEITURE AND UNLAWFUL DETAINER


             William entered a real estate contract with the purchasers on October 23, 2009, for the

sale of commercial            property located in Sumner.             After the purchasers failed to make payments


under    the   contract,      William filed     a notice of     forfeiture   on   June 11, 2012.         The notice gave the


purchasers until           September 7, 2012, to        cure   the identified     defaults.    William sent the notice of


forfeiture to the address the purchasers had provided in the real estate contract and to the


purchasers'         attorneys.




             Shortly after William filed the notice of forfeiture, the Hawtons filed for Chapter 7

bankruptcy. In order to proceed with the forfeiture, Kevin obtained relief from the bankruptcy

court'   s   stay    on   October 5, 2012. Kevin then obtained a declaration of forfeiture on October 11,


2012, and served the purchasers the notice of the declaration by certified mail at the address

provided       in the      real   estate   contract.   Kevin also served notice on the purchasers'                respective


attorneys and posted notice on                the Sumner property.        The declaration of forfeiture required the


purchasers          to   surrender possession of       the Sumner property         within     10 days.    The declaration of


forfeiture notified the purchasers that if they wished to contest the forfeiture they had to file and

serve the summons and complaint on the seller or the person who signed the declaration of

forfeiture, Kevin, no later than December 11, 2012.


             After Walker failed to vacate the Sumner property, Kevin filed a complaint for unlawful

detainer       against     Walker     on   October 24, 2012.          Walker answered the complaint and asserted


Kevin could not utilize an unlawful detainer action because it is available for relief only in

landlord -
         tenant           matters.    The show cause hearing for the unlawful detainer action occurred on

November 9, 2012.                 The superior court commissioner issued a writ of restitution restoring the

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44350 -3 - II / 44494 -1 - II



Sumner property to Kevin'              s possession.      Walker moved for revision of the order for writ of


restitution, which       the superior        court   denied.   The    superior     court awarded   Kevin $ 7, 500. 00 in


attorney fees and $ 329.35 costs. Walker appeals the order for writ of restitution and the order for

fees.


II.       SUIT TO VACATE THE FORFEITURE


          On December 7, 2012, Walker filed a complaint in superior court against Kevin to vacate

the forfeiture,    rescind     the   real estate contract, and     for damages.       On December 10, 2012, .Walker


had the summons and complaint served on Pierre Acebedo, Kevin' s attorney in another matter.

Walker also mailed a copy of the summons and complaint to Kevin on December 10, 2012,

which     Kevin   received     by    regular   United States Post         on   December 12, 2012.   Walker stated that


he did not personally serve Kevin because Kevin was out of town. Walker filed a lis pendens for

the Sumner property in Pierce County Superior Court on January 2, 2013.

          Walker moved to consolidate his suit to vacate the forfeiture with a previous suit he filed

against   the Hawtons         and    William in September 2011. Walker argued his consolidation motion in


front   of   Judge Garold Johnson            on   December 21, 2012.           Judge Johnson denied Walker' s motion


to    consolidate.    Later the same day, Walker again presented his motion to consolidate to Judge

John Hickman, which Judge Hickman also denied.


          Kevin moved to dismiss Walker' s complaint alleging improper service of the complaint

and     improper     filing   of   the lis   pendens.   Walker also moved for a change of judge and filed a

declaration     of prejudice        regarding Judge Hickman          on   January   2, 2013. Judge Hickman




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44350 -3 -II / 44494 -1 - II




concluded that he had already made a discretionary ruling in the case and that Walker' s motion

was   too   late.   The superior court also granted Kevin' s motion to dismiss Walker' s lawsuit to

vacate the forfeiture. In addition to appealing the order for writ of restitution, Walker appeals the

order dismissing his lawsuit to vacate the forfeiture. We consolidated Walker' s two appeals.

                                                           ANALYSIS


I.        CHALLENGES TO KEVIN' S FORFEITURE ACTION AND SUIT FOR UNLAWFUL DETAINER

         A.         WALKER LACKS STANDING TO CHALLENGE NOTICE TO THE HAWTONS' TRUSTEE IN
                    BANKRUPTCY


          Walker argues Kevin failed to provide notice of the declaration of forfeiture to Walker

and   the Hawtons'            trustee   in    bankruptcy. Walker did not raise the issue of lack of notice to

himself in the superior court and cannot raise this issue for the first time on appeal. RAP 2. 5( a).

We also hold that Walker lacks standing to challenge the lack of notice to the Hawtons' trustee

in bankruptcy.

            The doctrine of standing generally prohibits a party from asserting another person' s

legal   right. "'   In   re   Estate of Fitzgerald, 172 Wn.            App.   437, 452, 294 P. 3d 720 ( 2012) ( quoting


Timberlane Homeowners Ass' n, Inc. v. Brame, 79 Wn. App. 303, 307, 901 P. 2d 1074 ( 1995)).

Under the Real Estate Contract Forfeiture Act, both Walker and the Hawtons had the right to

notice of    the declaration        of   forfeiture. RCW 61. 30. 040( 7), . 070. But Walker cannot raise a lack


of notice     to the Hawtons            or   their trustee in   bankruptcy. Thus, Walker lacks standing to contest

the Hawtons' legal right to notice and we do not consider Walker' s arguments regarding notice

of the declaration of forfeiture.




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44350 -3 -II / 44494 -1 - II



         B.           UNLAWFUL DETAINER ACTION WAS PROPER


         Walker next argues the superior court erred by ordering a writ of restitution in an

unlawful detainer action and denying his motion to revise the writ. He claims that Kevin should

have brought an ejectment action, which would have allowed Walker to assert counter claims.


Because the Real Estate Contract Forfeiture Act specifically allows use of an unlawful detainer

action, Kevin properly brought such action and the superior court did not err by denying

Walker' s motion to revise the writ of restitution.


         We        review     questions     of   law de novo.         Here, the issue is the appropriateness of the


unlawful detainer action. Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295 P. 3d 1179 ( 2013).

Pursuant to RCW 61. 30. 100( 3),                  once a seller has obtained a declaration of forfeiture, the


Forcible Entry and Unlawful Detainer Act ( chapter 59. 12 RCW) may be used to remove the

buyer from the property. "               The seller shall be entitled to possession of the property ten days after

the declaration of forfeiture is recorded or any longer period provided in the contract or any other

agreement with          the    seller.    The seller may proceed under chapter 59. 12 RCW to obtain such

possession."         RCW 61. 30. 100( 3).          Here, Walker did not vacate the Sumner property within 10

days as ordered in the declaration of forfeiture. Accordingly, Kevin lawfully exercised his rights

to commence an unlawful detainer action.

         Walker argues that the real estate contract states that he became a tenant at will by

remaining on the Sumner property 10 days after receiving notice of the declaration of forfeiture.

Relying       on   Turner     v.   White, 20 Wn.    App.   290, 292, 579 P. 2d 410 ( 1978), Walker contends that


an unlawful detainer action cannot be used to remove a tenant at will from property. But Turner

 does   not   apply in this        situation.    In Turner the tenant, as part of his employment compensation,


 lived in     a   trailer his landlord      owned, which    the   court characterized as a   tenancy   at will.   20 Wn.

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44350 -3 -II / 44494 -1 - II



App.   at   291 - 92.    After the landlord fired the tenant, the landlord served the tenant with notice of

eviction and notice to vacate immediately, and five days later the landlord filed an unlawful

detainer     action.     Turner, 20 Wn.           App.    at   291.     The court held that an unlawful detainer action


was    improper        and   that the    tenancy    at will "     was terminable only upon demand for possession,

allowing the tenant              a reasonable   time to      vacate."       Turner, 20 Wn. App. at 292.

            The tenant in Turner used the property as his primary residence, whereas Walker used the

Sumner property for a commercial business and had already lost all rights in the property due to

the forfeiture         action.      Because the Real Estate Contract Forfeiture Act specifically permits a

seller to utilize an unlawful detainer action to remove a purchaser who remains on the property


10 days after being served notice of the declaration of forfeiture, Kevin acted properly and the

superior court did not err by denying Walker' s motion for revision of the writ of restitution.

            C.         SUPERIOR COURT PROPERLY AWARDED ATTORNEY FEES


            Walker argues the superior court improperly awarded Kevin attorney fees and costs.

Because the superior court used the lodestar method to calculate fees and its decision was not

manifestly unreasonable, we affirm the superior court' s award of attorney fees and costs for
Kevin.


            We apply         a   two -
                                     part   standard of review          to   a superior court' s award of   attorney fees: "( 1)


we    review      de   novo       whether    there is    a   legal basis for awarding attorney fees ...             and ( 2) we


review a      discretionary         decision to   award ...       attorney fees and the reasonableness of any attorney

fee   award      for   an abuse of     discretion."      Gander v. Yeager, 167 Wn. App. 638, 647, 282 P. 3d 1100

 2012).          The superior court has broad discretion when determining the reasonableness of an

 attorney fee       award.        Hall v. Feigenbaum, 178 Wn. App. 811, 827, 319 P. 3d 61, review denied,


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44350 -3 -II / 44494 -1 - II



180 Wn. 2d 1018 ( 2014).         We will overturn the superior court' s award only if the superior court' s

decision is manifestly unreasonable or based on untenable grounds. Hall, 178 Wn. App. at 827.

         The superior court may award reasonable attorney fees only if authorized by a contract,

statute, or rule.    Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 535, 79 P. 3d 1154 ( 2003).


Here, the real estate contract authorized reasonable attorney fees and costs for the prevailing

party for any litigation arising out of a default or forfeiture.3 The Real Estate Contract Forfeiture
Act also authorizes reasonable attorney fees in the event that any person fails to surrender

possession of    the property     at   issue: "   Any person in possession who fails to surrender possession

when required shall be liable to the seller for actual damages caused by such failure and for

reasonable attorneys'     fees    and costs of     the   action."   RCW 61. 30. 100( 3).


         As a general rule, Washington courts calculate reasonable attorney fees based on the

lodestar   method.      Clausen    v.   Icicle Seafoods, Inc., 174 Wn.2d 70, 81, 272 P. 3d 827 ( 2012).


Under this method, the court evaluates whether counsel spent a reasonable number of hours —

excluding any wasteful or duplicative hours and any hours pertaining to unsuccessful claims —

and whether counsel       billed   a reasonable rate.         Smith   v.   Behr Process   Corp., 113 Wn. App. 306,




3 The real estate contract provides:

         The defaulting party hereby promises to pay all costs and expenses so incurred by
         the   non   defaulting   party,    including ...      reasonable attorneys' costs and fees... .
         In the event either party hereto institutes, defends, or is involved with any action
         to enforce the provisions of this contract, the prevailing party in such action shall
         be entitled to reimbursement by the losing party for its court costs and reasonable
         attorneys'  costs and fees, including such costs and fees that are incurred in
           connection   with     any forfeiture, . . .        or to contest the reasonableness of any
         person' s costs or attorneys'        fees ...     appeal, or other proceeding.


Clerk' s Papers ( CP) at 22.
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44350 -3 -II / 44494 -1 - II



341, 54 P. 3d 665 ( 2002) ( citing Bowers              v.   Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675


P. 2d 193 ( 1983)).


            Here, Kevin        requested $   14, 369. 35 in attorney fees        and $   329. 35 in   costs.   The superior


court concluded that Kevin was entitled to attorney fees based on both the real estate contract

and    by   statute.     The    superior court,     however,      awarded   Kevin only $ 7, 500       in attorney fees and

    329. 35 in costs because it could not agree, given Kevin' s counsel' s experience with unlawful

detainer     actions,     even   though this one       was contested,     that $ 14, 369. 35   was warranted.      We hold


Kevin was entitled to attorney fees based on the real estate contract and RCW 61. 30. 100( 3) and

that the    superior court' s award of            attorney fees   was not   manifestly    unreasonable.        We affirm the


award of attorney fees and costs.

II.         CHALLENGES TO SUIT TO VACATE THE FORFEITURE


            A.         WALKER PROVIDED INSUFFICIENT PROCESS OF SERVICE


            Walker argues he properly served his summons and complaint for his suit to vacate the

forfeiture       on    Kevin     pursuant    to    RCW 4. 28. 080( 16)       and that the superior court erred by
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dismissing his          case   for failure to     provide proper service.        Because Walker failed to personally

serve the proper party, we affirm the dismissal of Walker' s suit to vacate the forfeiture.

            We review the superior court' s dismissal of an action for insufficient service of process

de    novo.      Witt   v.   Port of Olympia, 126 Wn.             App.   752, 757, 109 P. 3d 489 ( 2005).          The Real


Estate Contract Forfeiture Act provides a specific method for process of service in order to

vacate the forfeiture. RCW 61. 30. 140( 2) states in pertinent part:




4
      Walker     raised      a " private   mailbox"    argument for the first time in oral argument related to
process of service, which we do not consider. RAP 2. 5( a).
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44350 -3 -II / 44494 -1 - II




         An action to set aside the forfeiture permitted by this section may be commenced .
            by filing and serving the summons and complaint not later than sixty days after
         the declaration of forfeiture is recorded. Service shall be made upon the seller or
         the seller's attorney -in - act, if any, who signed the declaration of forfeiture.
                                   f

The declaration     of   forfeiture   was   filed   on   October 11, 2012.       Therefore, the sixtieth day both to

file and serve the summons and complaint challenging the forfeiture expired not later than

December 11, 2012. Walker filed the summons and complaint on December 7, 2012, within the


60 -day timeframe, but never personally served Kevin.

         Walker argues he effectuated proper service on December 10, 2012 by serving the

summons      and    complaint     on    Acebedo,         Kevin' s     attorney   in   a   separate   matter,   per RCW


4. 28. 080( 16).   RCW 4. 28. 080( 16) provides:


         In lieu of service under subsection ( 15) of this section, where the person cannot
         with reasonable diligence be served as described, the summons may be served as
         provided in this subsection, and shall be deemed complete on the tenth day after
         the required mailing: By leaving a copy at his or her usual mailing address with a
         person of suitable age and discretion who is a resident, proprietor, or agent
         thereof, and by thereafter mailing a copy by first -
                                                            class mail, postage prepaid, to
         the person to be served at his or her usual mailing address. 5
Walker    contends    Acebedo'    s address was          Kevin' s "   usual   mailing     address"   because Acebedo' s


address appeared in the notice to creditors in the probate matter where Kevin was appointed

personal representative of William' s estate. Walker' s argument fails for two reasons.

         First, Acebedo represented Kevin in the probate matter and not every action. Pursuant to

RCW 61. 30. 140( 2),      Kevin signed the declaration of forfeiture as the seller of William' s property

in his capacity as personal representative. No attorney -in -act existed. There is no evidence that
                                                            f




5
    RCW 4. 28. 080( 15)     provides: "     In all other cases, to the defendant personally, or by leaving a
copy of the summons at the house of his or her usual abode with some person of suitable age and
discretion then resident therein."
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Acebedo' s address was Kevin' s usual mailing address and Acebedo did not fall under any of

requirements as a person who could be served.


         Second, even if Acebedo' s address had been Kevin' s usual mailing address, the 60 -day

timeframe     for   service would          have    expired.   Walker served Acebedo and mailed a copy of the

summons and complaint               to Kevin      on   December 10, 2012. Per RCW 4. 28. 080( 16), service is not


complete until      the tenth       day   after   the mailing.   Thus, service in this case was not complete until


December 20, 2012, after the 60 -day timeframe lapsed. We affirm the superior court' s dismissal

of Walker' s suit to vacate the forfeiture.


         B.         MOTION FOR CHANGE OF JUDGE


         Walker next argues the superior court improperly denied his motion for a change of

judge.    Walker contends that Judge Hickman' s prior denial of Walker' s motion to consolidate

was    not    a   discretionary          decision.      Although Walker identifies this issue as one of first

impression, he       cites   to   no     law to   provide guidance    for   us   to   review      this issue.   Because Walker


did not provide meaningful argument in his brief or support this argument with relevant legal

authority, we do not consider this argument. RAP 10. 3( a)( 6).

III.     ATTORNEY FEES ON APPEAL


         Both Kevin          and    Walker    request reasonable      attorney fees         and costs on appeal.      We may

award attorney fees on appeal if "allowed by statute, rule, or contract and the request is made
pursuant     to RAP 18. 1(        a)."    Malted Mousse, Inc., 150 Wn.2d              at   535.    Here, as we discuss above,


the real estate contract contains a provision permitting a prevailing party to recover reasonable

attorney fees in a suit arising out of the contract.




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44350 -3 -II / 44494 -1 - II



        We deny Walker' s request because he is not the prevailing party. Kevin, however, is the

prevailing party on appeal and, thus, we award him attorney fees for reasonable expenses

incurred for this appeal.


         Because the Real Estate Contract Forfeiture Act specifically allows for the use of an

unlawful detainer action, Kevin properly brought such action and because Walker failed to

properly serve Kevin the summons and complaint in his suit to vacate the forfeiture, the superior

court properly dismissed his suit to vacate the forfeiture. We affirm.

         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 in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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