                                                                                                  COURT OF APPcALS
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                                                                                                 2014 JAN 2          AN    53
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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

WESTERN PLAZA, LLC,                                     I                           No. 43514 -4 -II


                                    Respondent,


         V.



NORMA TISON,                                                I               UNPUBLISHED OPINION




         JOHANSON, J. —          Norma Tison appeals the trial court' s order granting Western Plaza,

LLC' s motion for judgment on unlawful detainer and attorney fees and costs, and the order

denying   her   motion   for   reconsideration.   Tison primarily argues that her mobile home land rent

                                                                in the                          We               Because
may be increased only to the          extent provided                    rental   agreement.          agree.'




                                                   Tenant Act" (
                              Mobile Home Landlord -
nothing in the " Manufactured /
                                                                                               MHLTA)2 prohibits a

landlord and tenant from agreeing to the amount of future rent increases, we reverse the trial

court and remand for entry of summary judgment in Tison' s favor, including costs and attorney

fees.




    Because we agree with Tison that the rent increase limitation is enforceable, we do not reach
her other arguments.

2
    Ch. 59. 20 RCW.
No. 43514- 4- 11



                                                                      FACTS


          In 2001, Tison purchased a mobile home and entered into a " Manufactured Home Lot

One -Year Rental Agreement" ( Agreement) for a lot at the Western Plaza Mobile Home Park


with   the    park' s       owner,       Joel Erlitz.      The Agreement specifically provided for a one -year term

beginning October 12, 2001, and that upon expiration of the original term, the Agreement would

automatically renew for a period of one month and thereafter be a tenancy from month - o- month.
                                                                                     t

The Agreement               set   monthly        rent at $   345.     The Agreement used a standard form with several


provisions preprinted but also included three handwritten provisions on the bottom of its second

page: (      1) "    Landlord, Erlitz,            agrees     to have land          rent    remain   at $   345. 00 for two      years "; (   2)


 Every       other        year,   rent    will    be   raised   no    more    than $ 10. 00       for remaining tenancy "; and ( 3)


 December 2001 land                 rent of $345.        00 to be    waived."           Clerk' s Papers ( CP) at 23.


          Erlitz increased Tison'                 s rent   to $ 355 in October 2003, to $ 365 in October 2005, and to


  375 in October 2007.                    Then in 2008, Western Plaza bought the                        park     from Erlitz.     In March


2009, Western Plaza                 sent   Tison       written notice of      its intent to increase her           rent   to $ 405 effective


       1, 2009.           Tison                        that the increase                 improper   under     the Agreement.        Then, in
July                               complained                                     was




June 2011, Western Plaza                    sent   Tison     notice   that   it   was     increasing   rent   to $ 495 effective October


 1, 2011.


          Tison ignored the                rent   increase      notices and        in October 2011,        she   began sending $ 395 per


month, which she thought was appropriate under the Agreement' s provision that rent increases

          be limited to $ 10                                                             Western Plaza                to   accept   the $ 395
would                                      per month       every two     years.                             refused




payment and sent                it back to Tison.          In mid -October, Western Plaza sent Tison a five -
                                                                                                            day notice

to   vacate         and   pay     rent   due     of $495.       Tison did         not   comply.     The next month, Western Plaza


 served Tison with an eviction summons and a complaint for unlawful detainer.

                                                                         2
No. 43514 -4 -II



           In April 2012, Tison moved the superior court for summary judgment dismissal of

Western Plaza'        s   unlawful     detainer      action.     Western Plaza filed a cross motion for unlawful


detainer judgment in its favor. Both parties acknowledged that no material facts were in dispute

and    that summary judgment                was appropriate.           The superior court entered findings of fact and


conclusions of law for unlawful detainer in Western Plaza' s favor. The superior court concluded

that there   was no substantial             issue   of material   fact     and   that "[   t] he landlord may amend the lease

upon proper notice when               the lease automatically              renews."        CP   at   94.   It entered judgment for


Western Plaza for the rent owing and attorney fees and costs and directed the clerk to issue a writ

of restitution. Tison moved for reconsideration which the court denied. Tison appeals.

                                                               ANALYSIS


           Tison argues that the rent increase limitation is enforceable because it was bargained and

negotiated for between herself and the park' s former owner, Erlitz; courts should not limit

parties'    freedom to contract; and the rent increase limitation was enforceable against any

                                                                       3
landlord for     as       long   as   she   lived   at   the   park.       Western Plaza responds that the Agreement


specifically provided for a one -year term, that after the first year it could raise rent in accordance
with the MHLTA, and that the rent increase limitation provision was unenforceable after the first

year.    We agree with Tison and hold that the rent increase limit provision specifically bargained

for here does not violate the MHLTA and the MHLTA does not render it unenforceable.




 3
     Tison also argues that the doctrines of waiver, bad faith, and promissory and equitable estoppel
prevent  Western Plaza from raising her monthly rent more than $ 10 every two                                      years.   Western

 Plaza responds that these doctrines do not apply here. Because we reverse on                                     Tison' s primary
 argument, we do not address her alternative arguments.

                                                                       3
No. 43514 -4 -II



STANDARD OF REVIEW AND RULES OF LAW


          When reviewing an order for summary judgment, we engage in the same inquiry as the

trial   court.    Mountain Park Homeowners Ass' n v. Tydings, 125 Wn.2d 337, 341, 883 P. 2d 1383

 1994).     We will affirm summary judgment if no genuine issue of any material fact exists and the

moving party is        entitled    to judgment         as a matter      of law.   CR 56( c).    All facts and reasonable


inferences are considered in the light most favorable to the nonmoving party, and all questions of

law are reviewed de novo. Mountain Park, 125 Wn.2d at 341.

           We     review    all   questions      of   statutory interpretation de       novo.    State v. Gonzalez, 168


Wn.2d 256, 263, 226 P. 3d 131,              cent.     denied, 131 S. Ct. 318 ( 2010). First, we look at the statute' s


plain    language.     City   of Seattle    v.   Holifield, 170 Wn.2d 230, 237, 240 P. 3d 1162 ( 2010). " If the


plain language is subject to one interpretation only, our inquiry ends because plain language does

not require construction."           Holifield, 170 Wn.2d at 237.


           Further, the common law preserves citizens' freedom to contract. Little Mountain Estates

Tenants Ass' n v. Little Mountain Estates MHC, LLC, 169 Wn.2d 265, 270 n.3, 236 P. 3d 193

 2010) ( "`      Courts do not have the power, under the guise of interpretation, to rewrite contracts

which      the    parties   have   deliberately        made   for   themselves. "') (   quoting Clements v. Olsen, 46

Wn. 2d 445, 448, 282 P. 2d 266 ( 1955)). "`                   It is black letter law of contracts that the parties to a

contract shall       be bound      by   its terms. "'     Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510,

517, 210 P. 3d 318 ( 2009) (            quoting Adler v. Fred Lind Manor, 153 Wn.2d 331, 344, 103 P. 3d

773 ( 2004)).       In construing a contract, we give the parties' intent as expressed in the instrument' s

plain language controlling weight, and we give words in a contract their ordinary meaning.

 Cambridge Townhomes, LLC                   v.   Pac. Star     Roofing,    Inc., 166 Wn.2d 475, 487, 209 P. 3d 863


  2009).     We may discover             parties'     intent from "`    viewing the contract as a whole, the subject

                                                                    9
No. 43514- 4- 11



matter and objective of the contract, all the circumstances surrounding the making of the

contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of


respective    interpretations   advocated    by the   parties."'    In re Marriage ofLitowitz, 146 Wn.2d 514,

528,   48    P. 3d 261,    53   P. 3d 516 ( 2002) ( internal         quotation    marks      omitted) (   quoting Scott

Galvanizing, Inc.     v.   Nw. EnviroServices, Inc., 120 Wn.2d 573, 580 -81, 844 P. 2d 428 ( 1993)),


cent. denied, 537 U. S. 1191 ( 2003).


DISCUSSION


            Enacted in 1977, the MHLTA regulates and determines the legal rights, remedies, and


obligations arising from a rental agreement between a mobile home lot tenant and a mobile home

park   landlord."   Holiday Resort Cmty. Ass' n v. Echo Lake Assocs., LLC, 134 Wn. App. 210, 222,

135 P. 3d 499 ( 2006),     review   denied, 160 Wn.2d 1019 ( 2007). The MHLTA requires landlords to


provide a written agreement to a tenant at the beginning of the tenancy and that rental terms are

one year unless otherwise specified.          Holiday     Resort, 134 Wn.        App.   at   223.   It also provides that


an agreement of any duration will be automatically renewed for the term of the original

agreement, unless the parties agree to a different specified term, and that a landlord may

terminate a rental    agreement     for   cause.   Former RCW 59. 20. 080 ( 2003); RCW 59. 20. 090( 1).


1.     THE RENT INCREASE LIMITATION Is ENFORCEABLE BECAUSE THE MHLTA DOES NOT
PROHIBIT IT


            The MHLTA requires rental agreements to contain certain provisions and prohibits


others.     Former RCW 59. 20. 060 ( 2006).           Any term in a rental agreement that conflicts with the

MHLTA is        unenforceable.      Former RCW 59. 20. 060.           Further, a landlord who seeks to increase


rent can do so " upon expiration of the term of a rental agreement of any duration" by notifying

the tenant in writing three          months    prior   to the      effective   date   of   any   rent   increase.   RCW




                                                            5
No. 43514 -4 -II



59. 20. 090( 2);      McGahuey v. Hwang, 104 Wn. App. 176, 182, 15 P. 3d 672, review denied, 144

Wn.2d 1004 ( 2001).              But nothing in the MHLTA prohibits a landlord from including in a rental

agreement a limit on future rent increases. See former RCW 59. 20. 060.

          Because the MHLTA does not prohibit limits on future rent increases, such a limitation is

enforceable.              Little Mountain is helpful here.              169 Wn. 2d 265.     There, the owner of a


manufactured home community intended for the elderly offered a 25 -year lease to entice new

residents with rent            increases tied to the Consumer Price Index.            Little Mountain, 169 Wn.2d at


267.    The lease provided that the 25 -year term was available for only the original tenant and that

if the original tenant assigned its lease to another party, the assigned lease would be for one or

two    years.    Little Mountain, 169 Wn.2d           at   267. Later, tenants who assigned their leases claimed


that the    assignment provision violated            the MHLTA.           Little Mountain, 169 Wn.2d      at   268.   The


Supreme Court disagreed and held that the assignment provision was enforceable because it did

not violate the MHLTA; the court also explained that the MHLTA did not prohibit landlords and


tenants from agreeing to rental terms that would be determined by a formula or be linked to a

tenant' s future decision to assign the lease.4 Little Mountain, 169 Wn.2d at 268, 271.

            Similarly here, Tison' s Agreement specifically provided that her rent would be

determined           by   a   formula:   no. more   than   a $   10 monthly   rent   increase every two   years.      This


provision       is   enforceable    because it does    not violate      the MHLTA.      When a lease provision does


not violate the MHLTA, we must enforce the parties' agreement as written and as the parties


intended. Cambridge Townhomes, 166 Wn.2d at 487; Torgerson, 166 Wn.2d at 517. The parties


4
   Tenants also argued that the assignment clause also violated the Consumer Protection Act
        ch. 19. 86 RCW. Division One of this court remanded the CPA claim for further factual
    CPA),
findings to determine whether the tenants could prove a CPA violation so the CPA claim was not
before the Supreme Court. Little Mountain, 169 Wn.2d at 271.


                                                                  rel
No. 43514 - -II
          4



here clearly intended for Tison'              s   monthly      rent   to   not   increase   more   than $   10 every two years as

their Agreement' s plain language provides.


          In addition to Little Mountain, Western Plaza cites McGahuey, 104 Wn. App. 176, and

Seashore Villa Ass' n v. Hagglund Family Ltd. Partnership, 163 Wn. App. 531, 260 P. 3d 906

 2011),   review     denied, 173 Wn.2d 1036 ( 2012). But Seashore Villa is distinguishable and does


not   help   Western Plaza.            There the landlord sought to transfer the duty to care for permanent

structures in the mobile home park to the tenants by agreement, but the MHLTA specifically

prohibited    the landlord        from transferring the            duty     of care   for those    structures.         Seashore Villa,


163 Wn.      App.    at   535 -36, 542.       So we held that the parties could not contract around a specific


MHLTA provision and that the landlord violated the MHLTA by asking the tenants to do so.

Seashore Villa, 163 Wn.                App.       at   542.    But here, because the MHLTA does not specifically

prohibit parties from agreeing to a rent increase limitation, Seashore Villa does not help Western

Plaza' s argument and we cannot ignore the limitation that the parties explicitly agreed to.

          McGahuey         is   also   distinguishable.          There, we agreed that the landlord could properly

require tenants to begin paying for utilities in addition to base rent because the MHLTA did not

prohibit landlords from asking the tenants to do so, so long as the tenants paid only their actual
                                                                                                                   5
utility   cost and   because nothing in their                 rental agreements prohibited          it   either.       McGahuey, 104

Wn. App. at 180 -84.

          Further, Western Plaza agreed at oral argument that the original landlord, Erlitz, was


bound to the Agreement' s rent increase limitation, and it also conceded that Western Plaza


bought the mobile home park subject to all the leases that were in place at the time of the



5 Because the McGahuey parties' agreement did not prohibit such a fee increase, we did not
address a situation like the one we have here, where Tison' s Agreement does restrict future rental
increases.

                                                                       7
No. 43514- 4- 11



purchase.        Wash. Court       of   Appeals      oral   argument,        Western Plaza v. Tison, No. 43514 - -II
                                                                                                                4


 October 14, 2013),          at   19    min.,   30   sec. 20        min.,    30   sec. (   on   file   with    court).   Therefore,


Western Plaza took Tison' s lease subject to the Agreement' s specific provision providing for

future   rent   increase limitations. We cannot ignore that provision, as Western Plaza seeks to do.


And because it does        not violate      the MHLTA, we            must enforce          it. See Torgerson, 166 Wn.2d at


517.


2. THE AGREEMENT' S RENT INCREASE LIMITATION AUTOMATICALLY RENEWED EACH YEAR

         Western Plaza        argues       that the    limit   on    rent    increases terminated         after    one   year.   We


disagree.       Although the Agreement' s term was for one year, under the MHLTA, the Agreement


thereafter automatically renewed each year for another year, meaning that all its terms also

automatically      renewed        unless    the   parties   agreed      to    change       the terms.         RCW 59. 20. 090( 1).


Western Plaza asserts that at the end of each year it could modify the rent amount by giving

Tison    proper    notice,    relying      on   RCW 59. 20. 090         and       McGahuey, 104 Wn. App. at 181 -83.

Although RCW 59. 20. 090 allows rent increases, it does not control the result here where the

landlord specifically        agreed     to limit the   amount of       future     rent   increases.     Similarly, McGahuey is

not helpful because it does not address whether an agreement to limit future rent increases is

enforceable. We agree with Tison that Western Plaza may not ignore the rent increase limitation

at the end of the first year.


          Because the express future rent increase limitation provision is not in conflict with the


MHLTA, Western Plaza bought the park subject to Tison' s Agreement, and because Tison' s

Agreement renews each year, we conclude that the rent increase limitation is enforceable against

Western Plaza.        We     reverse     the    unlawful    detainer judgment,             including    costs and    attorney fees,
No. 43514 -4 -II



and instead remand for entry of summary judgment in Tison' s favor, including costs and attorney

fees.


ATTORNEY FEES ON APPEAL


           Tison      requests     attorney fees         on appeal.    Under RAP 18. 1, the prevailing party is entitled

to attorney fees and costs on appeal if requested in the party' s opening brief and if "applicable

law     grants   to   a   party the   right   to   recover."      RAP 18. 1(   a) -( b).    The MHLTA grants Tison a right to


recover.     It   provides       that "[   i] n any action arising out of this chapter, the prevailing party shall be

entitled    to    reasonable       attorney'       s   fees   and costs."   RCW 59. 20. 110.         Similarly, the Agreement

here includes             an   attorney fee    provision.         Therefore, Tison is entitled to her attorney fees and

costs upon compliance with RAP 18. 1.


           We reverse and remand for entry of summary judgment in Tison' s favor, including costs

and attorney fees.

           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.




                                                                                           ON, J.




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