### FILED December 10,2013
In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

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

­ ) McALLISTERFIELD, an agency ofthe ) No. 29306-8-111 City ofYakima and County ofYakima, ) Washington, ) ) Respondent, ) ) 

### v. ) ) M.A. WEST ROCKIES CORPORATION, ) UNPUBLISHED OPINION a Nevada corporation, ) ) Appellant. ) SIDDOWAY, A.C.J.

- After fact-fmding that we asked be done by the trial court, M.A. West Rockies Corporation's challenge to its eviction from airport ramp space it leased from Yakima Air Terminal atMcAllisterAirField is before us again for decision. Based on the trial court's supplemental findings, it is evidentthatthe airport commenced its unlawful detainer action at a time when Westhad cured the breach as to which ithad received notice. Because the evidence does not support essential elements ofunlawful detainer-thatthe tenant has failed to correct a breach following notice-the lease was improperly deemed forfeited and the writ ofrestitution was improperly issued. WeNo. 29306-8-111 

### Yakima Air Terminal-McAllister Fieldv. MA. WestRockies Corp.

reverse the court'sjudgment and amendment tojudgment and remand for further proceedings. PROCEDURAL BACKGROUND Yakima Air Terminal-McCallister Field filed a complaint for unlawful detainer against M.A. West Rockies in March 2010. An unlawful detainer show cause hearing
was held in May 2010 at which the trial court ruled in the airport's favor and entered its findings offact, conclusions oflaw, and order directing the issuance ofa writ of restitution andjudgment. West appealed and challenged its eviction. Itargued that in light ofthepayments it had made and how it believedthey had been applied by the airport, it had not been in default and eviction was improper. In January 2012, we filed an initial unpublished opinion, 

### Yakima Air TerminalMcAllister Fieldv. MA. W. 

### Rockies Corp., noted at 166 Wn. App. 1005 (2012). We explained that we were unable on the existing record to resolve the appeal because we did not know what the court came to believe about two key factual disputes. The first key dispute that was not addressed by the court's findings was whether the airport had applied
a security deposit by West that it was holding in the first halfofMarch 2010 as itemized in a March 15 document entitled "Notice ofApplication ofDeposit Towards Unpaid Rent" that the airport served on West, or whether it had continued to hold the amount in trust, as a deposit. Clerk's Papers (CP) at 86. The second was whether a $2,920.56 

### 2No. 29306-8-111 

### Yakima Air Terminal-McAllister Fieldv. 

### MA. WestRockies Corp. payment tendered by West was tendered on Friday, March 26, as West contended, or on the following Monday, March 29, as alleged by the airport's complaint and suggested by
some ofits evidence. We remanded the case for entry ofadditional findings and conclusions, with final disposition to await further proceedings. 

### YakimaAir, slip op. at 16-17. The trial courtreviewed additional declarations, heard argument from counsel, and entered findings in answerto our questions in June 2013. Counsel for West then filed the trial court's findings with us. The answers are sufficientto resolve the appeal. ANALYSIS The decisive issue is whether eviction was improperbecause West had cured the breach ofthe lease as to which it received the required notice. Reliefunder the unlawful detainer statute requires: (1) thetenant's breach, (2) notice to the tenant ofthe existence ofa breach with an opportunity to correct, and (3) failure by the tenantto correct the breach. RCW 59.12.030(4); 

### see also Wilson 

### v. Daniels, 31 Wn.2d 633, 643, 198 P.2d 496 (1948). Itis undisputed that between January and March 26 or 29 West missed several monthly rental payments required by its lease but that it had also made several unscheduled payments to the airport in an effortto cure its breaches. What was in dispute was whether it had cured its breach in the manner required and the time allowed.



### 3No. 29306-8-III YakimaAir Terminal-McAllister Fieldv. MA. WestRockies Corp.
Our first uncertainty in earlier deciding the case was whetherthe airport had applied a $3,000 security deposit from Westthat was in its hands on March 15 to unpaid rent and expenses, orwhether it had instead retained it as a security deposit. There was conflicting evidence. Additional payments were made by West on March 22 and 24, and it was impossible to determine the status ofWest's obligations following those payments without knowing what had happened with the $3,000 security deposit in the airport's hands on March 15. In response to our first question, "Didthe airport apply the $3,000 security deposit reimbursement paymentthat West made in the first halfofMarch 2010 as itemized in its March 15 notice ofapplication ofdeposit or did it hold it as a deposit?" Yakima Air, slip op. at 11, the trial court responded with the finding, "The [airport] did not apply the $3,000 deposit described in its March 15,2010 Notice ofApplication ofDeposit and M.A. West's $3,000 security depositremained held as the deposit at all times material up to and after the May 20, 2010 hearing." CP at 380. With this answer, and as explained in more detail in our earlier opinion, we are able to determine that the status ofrents and deposits after applying payments made by West on March 22 and 24 was as follows: Rent owed: $5,451.32 less $3,104.74 $2,346.58
. Finance charges: $51.36 plus additional accruals. Attorney fees and costs: $754.50 in fees and $45.00 in service costs due. Deposit account: $3,000.00 remaining from early March.
4No. 29306-8-111



### . YakimaAir Terminal-McAllister Field

### v. MA. WestRockies Corp.

Yakima Air, slip op. at 7 (citing Report ofProceedings at 44). Our second uncertainty concerned whether a final paymenttendered by West was made on the afternoon ofFriday, March 26, orthe following Monday, March 29. We determined in ourprior opinion that given the time and manner ofthe airport's service of its notice ofdefault, Westhad until March 28 to cure. 1 In response to our second question, "Did West tender its $2,920.56 payment onMarch 26 or 297" 

### id. at 12, the trial court responded with the finding, "Westtendered to [the airport] its $2,920.56 payment
on March 26,2010." CP at 380. Based on the status ofrents and deposits previously recognized and setforth above, paymentby West of$2,920.56 onMarch 26 would have more than covered the rent that it owed. 

### YakimaAir, slip op. at 7. The airport's finance administrator nonetheless refused the payment as untimely and returned itto West, based on the advice ofcounsel (which was based, in tum, on a misunderstanding ofhow the March 15 payment was applied). The airport then filed its unlawful detainer action on March 30, alleging that West's tender ofrent that itrefused was made on March 29-too late, given**th~** time to cure required by its notice ofdefault.

1We stated, "[T]heparties did not dispute that in light ofthe 10-day cure period provided by the notice ofdefault, West had 10 days following service ofthe notice to cure a default in the payment ofrent. The parties are also agreed that because the notice was mailed the time to cure was extended-by one day, as provided by RCW 59.12.040, and by three days, by the terms ofthe lease-thereby giving West until March 28 to make its payment." 

### Yakima Air, slip. op. at 8. 5No. 29306-8-III YakimaAir Terminal-McAllister Fieldv. MA. West Rockies Corp.
Given the trial court's supplemental findings, it is evident that West had cured its default in payment ofmonthly rent due under the lease within the time provided by the notice ofdefault. The airport therefore had no basis on whichto refuse West'stender and, with respect to West's liability for monthly rent, at least, the elements ofan unlawful detainer action did not exist when the airport filed its action onMarch 30. The only remaining issues are first, whether the airport could and had declared a default for West's failure topay legal fees and costs identified in its March 15 notice ofapplication of deposit; and second, ifit could declare a default for nonpayment ofthose fees and costs, whether it had given West a sufficienttime to cure. Since the airport had not applied West's $3,000 deposit to the attorney fees and service costs identified in the notice ofapplication ofdeposit served on March 15, West continuedto owe them. The parties' lease imposed an obligation on West for such costs, stating that "afterreceipt ofnotices and as an additional condition to avoid forfeiture, LESSEE shall pay LESSOR's costs and expenses, including attorney's fees, for the preparation and service of[notices ofdefault]." CP at 20. But before West's failure to pay such fees could constitute a breach, the lease required that West receive notice ofthe amount offees incurred for which it was liable. And before its breach offailing to pay the fees could constitute an uncured default givingrise to an action for unlawful detainer, the airport was required to give West notice ofthe breach and the opportunity to cure required by statute or, iflonger, by its lease. Forbreaches other than the payment of 

### 6No. 29306-8-111 YakimaAir Terminal-McAllister Field v. MA. West Rockies Corp. monthly rent, the parties' lease entitled West to written notice "setting forth the particular default claimed" and a 30-dayperiod to cure. 

### Id. The airport did notprovide West with notice ofits liability for the fees and costs until it mailed an invoice onMarch 15. It never served West with a notice ofbreach for failure to paythe fees; to the contrary, it served West with the notice ofapplication of deposit erroneously advising itthat the fees and costs had been satisfied out ofWest's security deposit.2 Nor could West's failure to restore the security deposit provide a basis for the airport's commencement ofthe unlawful detainer action on March 30. To begin with, the security deposit had not infact been applied to anything; it was still in a trust account. So

. there was no need infact to restore it. And even ifit could be argued that West

committed a breach by failing to respond to the airport's mistaken demand that it restore the deposit, West would still be entitledto a particularized notice ofdefault identifying

2 The notice ofapplication ofdeposit stated that the $3,000 West had paid in early March to replenish its security deposit had been applied by the airport "as follows": 1. $754.50 for attorney fees incurred by YakimaAir Terminal in the preparation ofnotices regarding application ofdeposit. 2. $45.00 for service ofprocess ofnotices regarding application of deposit[.] [3]. $2,200.50 to unpaid rent owed. CP at 86. The notice went on to say that West was "REQUIRED to, within five (5) days, deposit such sum of$3,000 with Yakima Air Terminal to return the total deposit held by YakimaAir Terminal to $3,000," pursuantto the parties' agreements. Id. (boldface omitted). 

### 7No. 29306-8-111 

### YakimaAir Terminal-McAllister Fieldv. 

### MA. WestRockies Corp.
that breach and giving it the 30 days permitted to cure breaches otherthan those for payment ofrent.3 In conclusion, the March 26 payment by West more than covered its defaults in payment ofmonthly rent. Its only other breach under the lease atthe time the unlawful detainer action was commenced was its failure topay attorney fees and costs but it had not received a notice ofdefault identifying those breaches or providing it with what would have been a 30-dayperiod to cure. The elements ofunlawful detainer were not satisfied. West asks that we reverse thejudgment ofthe superior court "andremand the case to thetrial court with directions that M.A. West is to be restored to the leasedproperty." Br. ofAppellant at 26. Butunder RAP 12.8 it is the trial court, notthis court, that determines appropriate restoration or restitution where property is transferred ortaken in compliance with ajudgmentthat is subsequently reversed. The rule provides: Ifa party has voluntarily or involuntarily partially or wholly satisfied a trial court decision which is modified by the appellate court, the trial court shall enter orders and authorize the issuance ofprocess appropriate to restore to the party any property taken from thatparty, the value ofthe property, or in appropriate circumstances, provide restitution. An interest

3 Attorney fees may sometimes be characterized as rent, butwhether they are turns on the language ofthe lease. 

### Daniels v. 

### Ward, 35 Wn. App. 697, 707, 669 P.2d 495 (1983). The clause defining rent inthis case states that "LESSEEpromises and agrees to payrent to LESSOR at the rate of$I,853.00 permonth for the leasedpremises, made in advance on orbefore the 10th day ofthe each month." CP at 11. This is the only clause that defines rent in any way. It cannotbe contended under this lease thatpayment of attorney fees was subject to the three-day cure period provided for rent. 8No. 29306-8-III YakimaAir Terminal-McAllister Field

### v. MA. WestRockies Corp.
in property acquired by a purchaser in good faith, under a decision subsequently reversed or modified, shall notbe affected by the reversal or modification ofthat decision. RAP 12.8. The Washington Supreme Court has construed RAP 12.8 as requiring practitioners and courts to lookto the common law ofrestitution to determine the postreversal remedy. Ehsani v. McCullough FamilyP'ship, 160 Wn.2d 586, 159 P.3d 407 (2007). In Ehsani, the courtproceeded to look to Restatement of Restitution 

### § 74 (1937). We note thatthe equivalentprovision ofthe current version ofthe Restatementis Restatement (Third) of Restitution and Unjust Enrichment 

### § 18 (2011). We reverse the trial court's "Order Directing Issuance ofWrit ofRestitution and Judgment" and its "Amendmentto Order Directing Issuance ofWrit ofRestitution and Judgment DatedJune 7, 2010." We remand for entry ofajudgmentthat West was not guilty ofunlawful detainer ofthe premises, that it was unlawfully evicted therefrom, that its lease was not forfeited, and that the airport was not entitledto a writ ofrestitution and immediate possession. The trial court shall also award West its reasonable attorney fees and court costs incurred inthe trial court in accordance with the parties' lease and, pursuantto RAP 12.8, shall enter orders and authorize the issuance ofprocess appropriate to restore Westto the leased premises; the value ofthe leased premises; or, ifappropriate, shall provide restitution. West has requested an award ofattorney fees and costs on appeal. It relies on paragraph 27 ofthe lease, whichprovides that "[i]in the event oflitigationto enforce the 

### 9No. 29306-8-111 YakimaAir Terminal-McAllister Fieldv. MA. WestRockies Corp. rights and obligations hereunder
...the prevailing party shall be entitled to its reasonable attorney fees in addition to court costs." CP at 22. UnderRCW 4.84.330, the prevailing party is entitledto attorney fees for actions on a lease where the lease provides for such
an award. A party may request reasonable attorney fees on appeal underRAP 18.1. West is the prevailing party on appeal. We award it attorney fees and costs subject to compliance with RAP 18.1(d). A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but itwill be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:



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