Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TANDEM, A WINE AND CHEESE BAR 

LLC, a Washington limited liability 

company,

Appellant,

v.

NWCV ASSOCIATES, LLC, a 

Washington limited liability company,

Respondent,

and

BRADLY and LISA HAVENS, husband 

and wife, and their marital community, 

Third Party Defendants.

 No. 82158-0-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Tandem, a Wine and Cheese Bar LLC (Tandem), appeals 

from the trial court’s summary dismissal of its claims for breach of lease, breach 

of the covenant of quiet enjoyment, and wrongful eviction against its former 

landlord, NWCV Associates, LLC (NWCV). We affirm.

FACTS

NWCV owns a two-story commercial building in Woodinville. In February

2015, NWCV entered into a lease (Lease) with Bradly and Lisa Havens for a 

suite in its building (premises). Later, and with NWCV’s consent, the Havens 

assigned the Lease to their company, Tandem, which operated a wine bar and 

restaurant at the premises.

In October 2018, Tandem filed for bankruptcy protection under chapter 11 
No. 82158-0-I/2

2

of the United States Bankruptcy Code. During the bankruptcy proceeding, 

Tandem moved to assume the Lease, and NWCV moved to terminate it. On 

June 18, 2019, the matters came before the bankruptcy court, which, after an 

evidentiary hearing, denied Tandem’s motion to assume the Lease, granted 

NWCV’s motion to terminate the Lease, and dismissed Tandem’s bankruptcy

case. The bankruptcy court ordered as follows:

1. [NWCV]’s Motion is granted and the . . . Lease . . . is 

hereby terminated.

2. [Tandem] is ordered to surrender possession of the 

leased premises to [NWCV].

3. [Tandem] will not operate its restaurant or use the 

leased premises and common areas in any way after the entry of 

this Order without the consent of [NWCV].

4. [NWCV] will cooperate with [Tandem] to allow 

[Tandem] to remove its property from the premises.

The bankruptcy court entered its order on Friday, June 21, 2019.

Meanwhile, after the June 18 evidentiary hearing, one of Tandem’s 

attorneys informed NWCV’s attorney that Tandem had weddings scheduled for 

the upcoming weekend (the weekend of June 22-23, 2019). Tandem’s attorney 

requested that NWCV allow Tandem’s restaurant to remain open for the 

weekend so the weddings would not be disrupted. On Friday, June 21, NWCV’s 

attorney wrote Tandem’s other attorney:

[NWCV] remains willing and ready to accommodate [Tandem]’s 

request made through [your co-counsel] at the courthouse on 

Tuesday. We understand that [Tandem] has one or more private 

events scheduled for this weekend, including a big wedding. 

[NWCV] has no wish to inflict harm upon third parties, such as the 

prospective bride and groom. The order signed by [the bankruptcy 

court] today allows [NWCV] to give [Tandem] permission to conduct 

business in the premises after the entry of the order. [NWCV] is 

willing to grant [Tandem] permission to open for business as usual 

today, tomorrow, and Sunday. 
No. 82158-0-I/3

3

However, this permission is conditioned upon [Tandem]’s 

agreement to close the business at the end of the evening on 

Sunday and not to reopen. We will expect [Tandem] to turn in their 

keys on Monday morning, and [NWCV] will change the locks at that 

time. 

As we discussed previously, [NWCV] will give [Tandem] ready 

access through the end of June to remove personal property from 

the premises.

NWCV’s attorney asked Tandem to “confirm . . . acceptance of this offer on the 

terms set forth above.” It is undisputed that Tandem did not expressly confirm its 

acceptance. It also is undisputed that Tandem conducted business at the 

premises Saturday and Sunday, June 22-23.

On Monday morning, June 24, NWCV changed the locks on the premises

in the Havens’ absence. That same day, Tandem’s attorney emailed NWCV’s 

attorney and stated, “We will make arrangements to have all of the personal 

property removed from the premises by the end of the month.”

In September 2019, Tandem, through new counsel, filed this lawsuit 

against NWCV.1 Tandem alleged four causes of action against NWCV: 

(1) breach of the covenant of quiet enjoyment, (2) wrongful eviction premised on 

a violation of chapter 59.12 RCW, i.e., the unlawful detainer statutes, (3) breach 

of the Lease, and (4) conversion. NWCV counterclaimed for waste, conversion, 

declaratory judgment regarding the ownership of certain installations within the 

premises, foreclosure of a landlord’s lien, and breach of the Lease. It also 

 1 The record reflects that in the intervening months, disputes arose among 

the parties and Tandem’s secured creditor regarding the disposition of personal 

property remaining at the premises. These disputes are not material to the 

issues in this appeal, and thus, we do not discuss them further.
No. 82158-0-I/4

4

brought third party claims against the Havens for conversion and waste.

NWCV moved for summary judgment dismissal of all four of Tandem’s 

causes of action against it. Tandem cross-moved for partial summary judgment, 

seeking an order holding NWCV liable for wrongful eviction as a matter of law 

and dismissing some of NWCV’s counterclaims.

The trial court granted NWCV’s motion in part and entered an order 

dismissing all of Tandem’s claims against NWCV except the conversion claim 

(summary judgment order). It denied Tandem’s cross-motion for partial summary 

judgment.

After the trial court declined to certify its orders for immediate appeal,

Tandem sought discretionary review, which a commissioner of this court denied.2 

The parties then agreed to dismiss all outstanding claims with the intent “to bring 

an end to this case in the trial court, so that . . . Tandem is free to file an appeal 

of right from the summary judgment order.” The trial court, pursuant to the 

parties’ stipulation, entered an order dismissing “the claims, counterclaims, and 

third party claims which remain extant in this Court . . . without prejudice”

(dismissal order). Tandem then filed a notice of appeal designating the summary 

judgment order and the dismissal order. Tandem did not designate the trial 

court’s separate order denying its cross-motion for partial summary judgment 

(denial order).

 2 See RAP 2.2(d) (CR 54(b) certification required to appeal from a 

judgment that does not dispose of all claims as to all parties); CR 54(b) (court 

may direct entry of final judgment as to fewer than all of the claims or parties only 

upon an express determination that “there is no just reason for delay”).
No. 82158-0-I/5

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ANALYSIS

Summary Judgment

As an initial matter, Tandem argues that we should reverse not only the 

summary judgment order, but also the trial court’s ruling denying Tandem’s 

cross-motion for summary judgment on NWCV’s landlord lien claim. NWCV 

contends that this ruling is not properly before us because it was part of the 

denial order, which Tandem did not designate in its notice of appeal. We agree 

with NWCV.

We generally will not review a decision not designated in the notice of 

appeal. RAP 2.4(a). RAP 2.4(b) provides an exception for an undesignated 

ruling if, as relevant here, “the . . . ruling prejudicially affects the decision 

designated in the notice.” Tandem contends that this exception applies to the 

trial court’s ruling denying summary judgment on NWCV’s landlord lien claim 

because that ruling prejudicially affected the summary judgment order.

Tandem is incorrect. An order or ruling prejudicially affects a decision if 

the decision would not have occurred absent the order or ruling. See Adkins v. 

Aluminum Co. of Am., 110 Wn.2d 128, 134, 750 P.2d 1257 (1988) (trial court’s 

decision to grant a mistrial was reviewable in appeal from judgment following 

second trial, where “[t]he second trial would not have occurred absent the trial 

court’s decision granting the motion for a mistrial”). Here, the trial court could 

have granted summary judgment on Tandem’s claims against NWCV without 

considering—much less denying summary judgment on—NWCV’s landlord lien 

claim against Tandem. Contrary to Tandem’s assertions, one ruling does not 
No. 82158-0-I/6

6

prejudicially affect another ruling merely because both rulings were made in the 

context of cross-motions for summary judgment.

Tandem also contends that the trial court’s ruling denying summary 

judgment on the landlord lien claim prejudicially affected the dismissal order, 

which Tandem did designate. Again, Tandem is incorrect. The parties stipulated

to dismiss the remaining claims in this case. So, the trial court had no choice but 

to do so, regardless of its earlier ruling. See CR 41(a)(1)(A) (“[A]ny action shall 

be dismissed by the court . . . [w]hen all parties who have appeared so stipulate 

in writing.”); CR 41(c) (making the rule applicable to counterclaims, cross claims, 

and third party claims). Although the parties may not have entered the stipulation 

absent the denial order, the “but for” precedent to the dismissal order was the 

parties’ stipulation, not the denial order. Cf. Right-Price Recreation, LLC v. 

Connells Prairie Cmty. Council, 146 Wn.2d 370, 380, 46 P.3d 789 (2002) (earlier 

ruling is reviewable under RAP 2.4(b) if “the order appealed from would not have 

happened but for the first order”). Furthermore, because Tandem agreed to the 

dismissal order, it cannot—and does not—argue the trial court erred in entering 

that order. Cf. Fite v. Lee, 11 Wn. App. 21, 25-26, 521 P.2d 964 (1974) (“The 

order of dismissal . . . was in the nature of a judgment by consent, which, in the 

absence of fraud or mistake or want of jurisdiction, will not be reviewed on 

appeal.”). We are unpersuaded that RAP 2.4(b) allows an appellant to bring an 

undesignated ruling up for review by designating an agreed order that the 

appellant does not actually challenge. 

Finally, Tandem argues that we should exercise our discretion to review 
No. 82158-0-I/7

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the trial court’s ruling on NWCV’s landlord lien claim under RAP 18.8(a), which 

provides that we may “waive or alter the provisions of any of [the RAPs] . . . in 

order to serve the ends of justice.” For the reasons already discussed, we 

decline to do so.

We turn, then, to the trial court’s summary judgment order. Tandem 

argues that because NWCV’s changing of the locks on Monday, June 24, 2019, 

was unlawful, the trial court erred by summarily dismissing Tandem’s claims for 

breach of the covenant of quiet enjoyment, wrongful eviction, and breach of the 

Lease. We disagree. 

We review summary judgment orders de novo, and “[w]e may affirm on 

any basis supported by the record.” Bavand v. OneWest Bank, 196 Wn. App. 

813, 825, 385 P.3d 233 (2016). “[S]ummary judgment is appropriate where there 

is ‘no genuine issue as to any material fact and . . . the moving party is entitled to 

a judgment as a matter of law.’ ” Elcon Constr., Inc. v. E. Wash. Univ., 174 

Wn.2d 157, 164, 273 P.3d 965 (2012) (second alteration in original) (quoting CR 

56(c)). 

Here, Tandem does not challenge the validity or efficacy of the bankruptcy 

court’s order.,3 That order plainly terminated the Lease and directed Tandem to 

surrender possession of the premises. Importantly, it also directed Tandem not 

to “operate its restaurant or use the leased premises and common areas in any 

way after the entry of this Order” without NWCV’s consent. (emphasis added.) 

 3 For this reason, we agree with Tandem that we need not address 

NWCV’s argument that the order was entitled to full faith and credit in the trial 

court. 
No. 82158-0-I/8

8

On Friday, June 21, 2019, NWCV offered to allow Tandem to open for business 

through Sunday, expressly “conditioned upon [Tandem]’s agreement to close the 

business at the end of the evening on Sunday and not to reopen.” NWCV further 

notified Tandem of its intent to change the locks on Monday morning, and on 

Monday morning, it did so in Tandem’s absence. Under these circumstances, 

the trial court did not err in summarily dismissing Tandem’s claim that NWCV’s 

changing of the locks constituted a breach of the Lease—which was no longer in 

effect—or of the covenant of quiet enjoyment implied therein. Cf. Esmieu v. 

Hsieh, 20 Wn. App. 455, 460, 580 P.2d 1105 (1978), aff’d, 92 Wn.2d 530, 598 

P.2d 1369 (1979) (covenant of quiet enjoyment is implied in every lease). And, 

given that NWCV’s consent to use the premises lasted only through Sunday and 

NWCV plainly stated its intent to change the locks on Monday, the trial court also 

did not err by summarily rejecting Tandem’s claim that NWCV’s follow-through on 

its stated intent constituted a wrongful eviction. Cf. Olin v. Goehler, 39 Wn. App. 

688, 692, 694 P.2d 1129 (1985) (“A lessor’s unlawful lockout of one with a right 

to possession is a breach of the implied covenant of quiet enjoyment.” (emphasis 

added)). 

Tandem disagrees and points out that it did not expressly accept the 

terms in NWCV’s June 21, 2019, offer to allow Tandem to continue operating 

through the weekend, including turnover of possession the following Monday. 

This observation does not help Tandem: If there was no agreement, then there 

also was no consent for Tandem to continue using the premises after June 21, 

2019. In any case, we are unpersuaded that Tandem’s silence in the face of 
No. 82158-0-I/9

9

NWCV’s communicated intent to change the locks on Monday rendered NWCV’s 

doing so unlawful. Cf. Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 

169, 298 P.2d 849 (1956) (where landowner’s offer to allow use of road was 

clearly conditioned on payment of a specified price until such time as the parties 

reached a more permanent arrangement, “[t]he offer was accepted when the 

[recipient] remained silent and continued to use the road, knowing that the 

[landowner] expected compensation on the stated basis”). 

Tandem also asserts that it remained a tenant despite the bankruptcy 

court’s order terminating the Lease, and thus, absent an ejectment action, “the 

only proper means of removing Tandem was by obtaining a writ of restitution 

pursuant to [the unlawful detainer statutes,] RCW 59.12 et seq., even after the 

issue of possession or right to possession had been determined.” Relying on 

Worthington v. Moreland Motor Truck Co., 140 Wash. 528, 250 P. 30 (1926),

Tandem first argues that “[f]ollowing the Bankruptcy Order, Tandem’s status was 

still that of a . . . month-to-month tenant.” 

In Worthington, the underlying lease expired by its terms on August 31. 

140 Wash. at 530. The tenant paid, and the landlord accepted, monthly rent for 

September and October as the parties attempted to negotiate a new lease. 

Worthington, 140 Wash. at 529-30. On November 1, after negotiations failed, the 

tenant vacated the premises, and on November 3, the tenant notified the landlord 

it had vacated. Worthington, 140 Wash. at 530, 532. The landlord sued for 

unpaid rent. Worthington, 140 Wash. at 530. Our Supreme Court held that 

because there was a tenancy “for an indefinite time” following the expiration of 
No. 82158-0-I/10

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the lease, and monthly rent was being paid and accepted, the relation between 

the parties was a month-to-month tenancy. Worthington, 140 Wash. at 532. 

Here, by contrast, there was no tenancy for an “indefinite time” after the 

bankruptcy court terminated the Lease. As discussed, the bankruptcy court’s 

order extinguished Tandem’s right to use the premises for any purpose absent 

NWCV’s consent. That consent, to the extent given, lasted only through the 

weekend. Tandem’s reliance on Worthington is misplaced, and we are 

unpersuaded that a month-to-month tenancy existed following entry of the 

bankruptcy court’s order.

Tandem asserts, in the alternative, that it was a tenant at sufferance. In 

support, it cites Hinkhouse v. Wacker, 112 Wash. 253, 191 P. 881 (1920), aff’d 

on reh’g, 112 Wash. 253, 195 P. 218 (1921). Hinkhouse involved a purported 

six-year lease of community property farmland that was signed by the lessor 

husband but not his wife. 112 Wash. at 254. The lessee argued that even 

though the wife had not signed the lease, the lessee was entitled to possession 

for the second year of the lease because he had already sown wheat for that 

year. Hinkhouse, 112 Wash. at 256. Our Supreme Court disagreed and held 

that because the lease was of community property and the wife did not sign it, it

was valid only for the first year. Hinkhouse, 112 Wash. at 256. Hinkhouse does 

not discuss tenancy at sufferance, much less support Tandem’s assertion that it 

was a tenant at sufferance. 

Tandem also cites RCW 59.04.050 and Sarvis v. Land Resources, Inc., 62 

Wn. App. 888, 815 P.2d 840 (1991), to support its status as a tenant at 
No. 82158-0-I/11

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sufferance. RCW 59.04.050 provides, “Whenever any person obtains 

possession of premises without the consent of the owner . . . , he or she shall be 

deemed a tenant by sufferance merely.” (Emphasis added.) In Sarvis, we 

applied that statute and held that an individual was a tenant by sufferance 

because, “by residing on the property, [he] had ‘obtained possession.’ ” 62 Wn. 

App. at 891. But here, unlike in Sarvis, Tandem did not “obtain” possession after 

it closed for business Sunday night. Tandem’s personal property remained in the 

premises, but that was expressly contemplated by the same court order that 

terminated the Lease and extinguished Tandem’s right to use the premises 

without NWCV’s consent, which lasted only through Sunday. Cf. DALE A.

WHITMAN, ET AL., THE LAW OF PROPERTY § 6.20 at 212 (4th ed. 2019) (“The 

tenant’s merely leaving items of personalty behind is not a holding over, because 

possession is required.”). Under the circumstances presented here, Tandem 

was not a tenant by sufferance when NWCV changed the locks on Monday 

morning. 

Furthermore, even assuming Tandem was a tenant by sufferance as of 

Monday morning, Tandem does not cite any authority that supports its assertion

that a writ of restitution obtained via an unlawful detainer action is the exclusive 

means to remove such a tenant. Indeed, under the common law, the landlord 

“has an election to treat the tenant [at sufferance] as a trespasser and to oust 

him without advance notice.” 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER,

WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 6.74 at 434 (2d ed. 2004); 

see also 4 THOMPSON ON REAL PROPERTY § 39.05(d) at 596-97 (David A. Thomas 
No. 82158-0-I/12

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ed., 3d ed. 2017) (tenancy at sufferance “continues until the landlord acts to alter 

the unexpected extension of the tenant’s presence on the landlord’s property,” 

and “[h]istorically, the landlord could forcibly remove the tenant and the tenant’s 

goods as long as the landlord acted reasonably”); WHITMAN, supra, § 6.75 at 311 

(“[I]t stretches the imagination to say that a tenant at sufferance (who becomes 

such by a non-permissive holding over) is truly a tenant.”). Although Tandem 

points to statutes that now prohibit such ousters in the residential context, it 

identifies no statutory counterpart in the commercial context. 

Tandem also points to Nelson v. Swanson, 177 Wash. 187, 31 P.2d 521 

(1934), Gray v. Pierce County Housing Authority, 123 Wn. App. 744, 97 P.3d 26 

(2004), and Olin, 39 Wn. App. at 688. But none of these cases involved a tenant 

at sufferance. See Nelson, 177 Wash. at 190-91 (landlord liable for forcibly 

ejecting tenant who was merely in default by entering tenant’s hotel during 

business hours, announcing that he was “taking charge” and, when tenant

objected, picking the tenant up and throwing him on the sidewalk); Gray, 123 Wn. 

App. at 757 (seven-day lockout provision in housing authority’s contracts with 

participants in an educational program violated residential landlord tenant act); 

Olin, 39 Wn. App. at 691 (lockout of tenant unlawful where tenant retained right 

to re-enter premises upon its assignee’s abandonment). Also, none involved a

lease that was terminated by court order or a tenant whose right to use the 

premises was also terminated by court order. And, none involved a “lockout” that 

occurred in the tenant’s absence and only after a court had ordered the tenant to 

surrender possession, the landlord’s consent to further use had ended, and the 
No. 82158-0-I/13

13

landlord had given notice of its intent to change the locks. Nelson, Gray, and 

Olin do not require reversal.

As a final matter, Tandem correctly observes, quoting Priestley Mining & 

Milling Co. v. Lenox Mining & Development Co., that the purpose of a writ of 

restitution is “to prevent violations of the peace in disputes over the possession of 

real estate, regardless of the claim of right or title under which the entry is made.” 

41 Wn.2d 101, 103, 247 P.2d 688 (1952). To this end, it may have been 

advisable for NWCV to obtain a writ given that a breach of the peace could have 

occurred had the Havens shown up at the premises while NWCV was changing 

the locks.4 Nevertheless, the trial court did not err by concluding under the 

circumstances that NWCV’s decision not to do so was not a breach of the Lease, 

a breach of the covenant of quiet enjoyment, or a wrongful eviction as a matter of 

law. 

Fees on Appeal

“A party is entitled to attorney fees on appeal if a contract, statute, or 

recognized ground of equity permits recovery of attorney fees at trial and the 

party is the substantially prevailing party.” Hwang v. McMahill, 103 Wn. App. 

 4 We need not and do not decide whether NWCV would have been 

required to initiate an unlawful detainer action to obtain a writ under the 

circumstances presented here. Cf. In re Marriage of Cox, No. 81966-6-I, slip op. 

at 5-6 (Wash. Ct. App. Dec. 20, 2021) (observing that “there is no authority for 

the proposition that a writ of restitution is only available under ch. 59.12 RCW”), 

https://www.courts.wa.gov/opinions/pdf/819666.pdf. Accordingly, we also do not 

address the parties’ arguments about whether a superior court would have had 

jurisdiction to entertain an unlawful detainer action given the bankruptcy court’s 

order and whether the bankruptcy court’s order constituted res judicata as to any 

such action. 
No. 82158-0-I/14

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945, 954, 15 P.3d 172 (2000). Here, each party argues it is entitled to an award 

of appellate fees under the Lease, which provides, “In the event a party to this 

Lease brings a suit or action arising out of this Lease against the other party, the 

prevailing party shall be entitled to recover . . . such sum as the Court may 

adjudge to be a reasonable attorneys’ fee.” Also, neither party argues that this 

action does not “arise” out of the Lease or that the other party is not entitled to an 

award of attorney fees under the Lease should that other party prevail on appeal. 

For these reasons, and because NWCV is the prevailing party on appeal, we 

award NWCV its reasonable attorney fees on appeal subject to its compliance 

with RAP 18.1.

We affirm.

WE CONCUR: