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Hall v. Feigenbaum

Court of Appeals of Washington, Division 1

January 13, 2014

Robert K. Hall et al., Respondents,
Matthew Feigenbaum et al., Appellants

Page 62

Appeal from Whatcom County Superior Court. Docket No: 10-2-03030-8. Date filed: 04/13/2012. Judge signing: Honorable Steven J Mura.

Matthew Feigenbaum, pro se.

Douglas K. Robertson (of Belcher Swanson Law Firm PLLC ), for appellants.

Mark S. Davidson (of Williams Kastner & Gibbs PLLC ), for respondents.

AUTHOR: J. Robert Leach, C.J. WE CONCUR: Linda Lau, J., C. Kenneth Grosse, J.


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Leach, C.J.

[178 Wn.App. 815] ¶ 1 In this commercial unlawful detainer action, Matthew Feigenbaum appeals multiple trial court orders, based primarily upon allegations that Robert Hall failed to comply with the notice requirements of the parties' lease and applicable statutes. Because Hall complied with these notice requirements and Feigenbaum does not otherwise show reversible error, we affirm and award Hall attorney fees incurred on appeal.


¶ 2 In 2003, Matthew Feigenbaum entered into a commercial lease with Robert K. Hall to operate a nightclub (premises). The lease provided that Feigenbaum's failure " to keep and perform any of the covenants and agreements [that] continues for twenty (20) days after written notice from Lessor" would entitle Hall to either terminate and [178 Wn.App. 816] reenter or continue the lease and sublet the space. The lease specified that " [a]ny notice required to be given ... to the Lessee" would use the address of the premises or " such other address as either party may designate to the other in writing."

¶ 3 At some point, Feigenbaum stopped operating the nightclub.[1] He did not pay rent for September and October 2010. On November 5, 2010, Hall served Feigenbaum with a three-day notice to pay or vacate by posting and mailing to the premises. On December 1, Hall commenced an unlawful detainer action by filing a summons and complaint and secured ex parte a temporary restraining order and an order to show cause why a writ of restitution should not be issued. The order restrained Feigenbaum from removing property from the premises but did not restrict Feigenbaum's access to them and did not require that Hall post a bond. The return date for both orders was December 17.

¶ 4 Between December 1 and 3, Hall made six unsuccessful attempts to personally serve Feigenbaum with the summons and complaint. After a court commissioner entered an ex parte order allowing service by posting and mailing, Hall mailed the pleadings to the premises on December 6 and posted them at the premises on December 7. Feigenbaum received the pleadings on December 9.

¶ 5 The court granted Hall's motion for a preliminary injunction, barring Feigenbaum from removing personal property from the premises. The injunction did not require a bond. The court ordered Feigenbaum to pay $14,400 into the court's registry immediately for unpaid rent and to deposit future rent moneys into the court's registry as they came due. Feigenbaum deposited the $14,400 but did not pay January's rent. On January 7, 2011, the trial court found that " no monthly rent payment currently due has [178 Wn.App. 817] been timely

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paid to the registry of the court" and entered an order for writ of restitution. Finding that Feigenbaum was properly served and received adequate notice, the court denied Feigenbaum's motion to dismiss for lack of jurisdiction. The court ordered that $12,700 of the funds held in the court's registry be released to Hall.

¶ 6 On August 30, 2011, Hall relet the premises to a new tenant. The new tenant's lease provided for rent lower than the monthly rent that Feigenbaum paid.

¶ 7 On January 9, 2012, Feigenbaum filed a motion asking that the trial court clarify whether the court had converted the unlawful detainer action into an ordinary civil action. On February 10, 2012, the court entered an order stating that it had done so.

¶ 8 On April 13, 2012, the court granted Hall summary judgment for $136,809.29. The judgment included rent through December 31, 2011; decreased rent from January 1, 2012, to August 31, 2013; and costs related to mitigation and cleaning. On July 2, 2012, the court awarded Hall costs and reasonable attorney fees totaling $43,000.00, bringing the final judgment to $179,807.29. Feigenbaum appeals.


Waiver of Certain Issues on Appeal

¶ 9 Feigenbaum appealed a number of the trial court's orders in this lengthy litigation but did not address them in his opening brief. We deem an issue not briefed to be waived.[2] We decline to review these orders. Moreover, although Feigenbaum assigns error on appeal to the trial court's issuance of the temporary restraining order and preliminary injunction, he did not raise the associated issues below. An appellate court " may refuse to review any [178 Wn.App. 818] ...

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