Filed Washington State Court of Appeals Division Two
April 7, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
FIFE PORTAL 140, LLC, a Washington No. 60044-7-II Limited Liability Company,
Appellant,
v.
SUBWAY REAL ESTATE, LLC, a Delaware UNPUBLISHED OPINION Limited Liability Company,
Respondent.
MAXA, P.J. – Fife Portal 140, LLC (Fife Portal) appeals the trial court’s grant of summary
judgment in favor of Subway Real Estate, LLC (Subway) in Fife Portal’s unlawful detainer
action. The unlawful detainer action arose out of a conflict regarding the commencement date of
the lease agreement between Fife Portal and Subway.
Subway leased property from Fife Portal to sublease the premises to a franchisee, who
would then operate a Subway branded restaurant on the premises. Subway and Fife Portal
executed the lease in March 2017. The lease provided for an initial term of five years. Section
R1 of a rider to the lease stated that the lease would commence when certain conditions were
met: completion of construction, receipt of the necessary permits, and acceptance of the premises No. 60044-7-II
by Subway, as evidenced by a letter of possession signed by both parties. The construction and
permitting process was completed in June 2018 and the restaurant opened that month. But Fife
Portal never signed the letter of possession mentioned in section R1.
The lease provided that Subway could renew the lease for an additional five year period
with six months’ notice, or within 10 days of Fife Portal’s notice that it failed to renew. In
September 2022, Subway sent notice that it was renewing the lease. Fife Portal informed
Subway that it could not renew because the lease had expired and its notice was untimely.
In April 2023, Fife Portal served Subway notice to vacate the premises. This unlawful
detainer action followed. Both parties filed motions for summary judgment, and the trial court
granted summary judgment in favor of Subway and denied Fife Portal’s motion.
Fife Portal appealed the trial court’s summary judgment order to this court. While the
appeal was pending, Fife Portal sold the property to JAMAT, LLC. This court allowed JAMAT
to intervene in this appeal.
Even though Fife Portal no longer has a right to possess the property, we can grant relief
because JAMAT will be bound by our decision. We hold that the trial court did not err when it
granted summary judgment in favor of Subway because under the terms of section R1, the lease
commenced in June 2018. Therefore, Subway timely renewed the lease.
Accordingly, we affirm the trial court’s summary judgment order. This decision is
binding on JAMAT.
FACTS
Background and Lease Agreement
Fife Portal owned a commercial property in Fife. In March 2017, Fife Portal entered into
an agreement with Subway to lease commercial space on the property for a Subway branded
2 No. 60044-7-II
restaurant. Subway planned to sublease the property to a franchisee, who would operate the
Subway branded restaurant on the property.
The parties understood that the property would have to be modified to operate a Subway
restaurant on the premises. Fife Portal agreed to perform certain modifications to the property.
Subway’s subtenant would complete other necessary modifications.
The agreement contained a master lease and a rider. The terms in the rider controlled if
they conflicted with the master lease. Regarding the length of the lease, the master lease stated
that the lease term consisted of an “Initial Term and any Extended Terms which may be provided
for by a Rider.” Clerk’s Papers (CP) at 137. The initial term of the lease was five years.
Regarding when the lease commenced, section R1 of the rider stated,
This Lease and all of its corresponding rights and obligations other than the payment of Rent shall commence when all of the following requirements have been met (“Lease Commencement Date”): 1) Completion of Landlord’s work and delivery of possession, 2) Receipt by Tenant of all necessary approvals and permits and 3) acceptance of the Premises by Tenant as evidenced by Tenant’s written acknowledgement of receipt and acceptance of a letter of possession from Landlord (Exhibit B).
The Rent shall commence the earlier of ninety (90) days after the Lease Commencement Date, or upon Tenant’s permits being signed off by the city (“Rent Commencement Date”).
The parties herein agree that, subject to the execution of this Lease, Tenant shall be entitled to the use and possession of the Premises for the purposes of renovation and remodeling.
CP at 152 (emphasis added). Exhibit B, mentioned in section R1, is titled “LETTER OF
POSSESSION” and stated,
In accordance with the Lease Agreement between the parties dated ____ 20 , Landlord warrants by signature below that all of it’s construction obligations under the lease are complete and the premises is hereby delivered to Tenant on ____ 20 . Execution of this Letter of Possession by Tenant shall signify the delivery of possession and acceptance of same by Tenant and satisfy the obligations of section of the lease.
3 No. 60044-7-II
CP at 161. Fife Portal states that exhibit B of the lease was a nonnegotiable requirement of
Subway’s. And Fife Portal states that exhibit B was added to protect Subway from lawsuits and
for Subway’s own recordkeeping purposes.
In addition, regarding possession, the lease stated that Subway was entitled to possession
of the premises immediately, and occupancy before the lease commenced would not advance the
termination date of the lease.
The lease gave Subway the option to renew the lease for three additional five year terms.
Regarding Subway’s right to exercise these options, the lease stated,
In order for Tenant to exercise this Extension Term it will be required to give Landlord six (6) months prior written notice of its intent to exercise said option period. The Extension Term shall be based upon the same terms and conditions as the Initial Term, except that the Base Rent shall be adjusted as stated below. In the event Landlord does not receive Tenant’s notice as stated above, Tenant shall not lose its options to renew unless and until the Tenant shall fail to give notice to Landlord within ten (10) days after receipt of written notice from Landlord citing Tenant’s failure to exercise its option to renew.
CP at 148.
The lease also provided that if Subway remained in possession of the property after the
lease expired, the lease converted to a month to month tenancy, with a higher monthly rent and
all terms applicable to a month-to-month tenancy.
Correspondence Between the Parties
After Fife Portal and Subway entered into the lease agreement, Subway subleased the
property to Sua Fife Subway, Inc (Sua). Sua was responsible for getting the required permits
from the City of Fife. The buildout took longer than Fife Portal predicted.
The construction process was completed, and the city issued the necessary permits on
June 13, 2018. Sua began operating the Subway branded restaurant the next day.
4 No. 60044-7-II
On June 22, Fife Portal’s manager, George Humphrey, emailed Subway and Sua and told
them that their “lease started Jan 1.” CP at 453. On July 27, a managing agent for Fife Portal,
Michelle Ryan, sent a letter to Sua and Subway demanding rent for January to August 2018 and
stating that the “lease commencement date” was January 1, 2018. CP at 170.
Subway reached out to Fife Portal in September 2018 to memorialize the lease
commencement date. Humphrey states that in response, he called a Subway representative and
told them he would never agree to a different commencement date.
In April 2019, Subway asked Humphrey the date Fife Portal delivered the property so it
could memorialize the lease’s beginning and ending dates. Humphrey responded that it was
memorialized the previous year.
That month, Subway also asked Ryan what date the premises was delivered to Subway.
Ryan responded that the lease commenced on January 1, 2018, and would expire on December
31, 2022. Subway created and signed a possession letter with those dates, and sent it to Fife
Portal. There is no evidence that Humphrey or any other Fife Portal employee ever signed the
possession letter.
On September 12, 2022, Subway sent notice to Fife Portal stating that it was extending
the lease for another five year term. The notice Subway sent stated that the extended lease would
run from June 14, 2023, to June 13, 2028. On October 7, Fife Portal responded by stating that
Subway had failed to renew the lease before the lease expired. Fife Portal identified a lease
commencement date of March 7, 2017 in this communication. Subway and Sua received the
letter denying Subway’s renewal on October 17.
5 No. 60044-7-II
On October 18, Subway sent an email and a letter to Fife Portal stating that it was
exercising its renewal option, this time with the new lease term running from January 1, 2023, to
December 31, 2027. Fife Portal responded by stating that the lease already had expired.
Sua continued operating the Subway restaurant and continued to make the monthly rent
payments. Fife Portal did not increase the monthly rent.
On April 18, 2023, Fife Portal notified Subway that it was terminating Subway’s tenancy.
Subway did not vacate the property.
Trial Court Procedure
Fife Portal filed this unlawful detainer action. In its complaint, Fife Portal sought a writ
of restitution and damages. Subsequently, the parties both filed summary judgment motions.
The trial court granted Subway’s motion for summary judgment and denied Fife Portal’s.
In its oral ruling, the trial court concluded that fixing the lease commencement date under section
R1 of the rider was not an agreement to agree, and that the signed letter referenced in exhibit B
was not a condition precedent to performance. The court also stated that Subway timely renewed
the lease within 10 days of receiving written notice from Fife Portal that it did not exercise its
option to renew. It declined to fix a lease commencement date.
Fife Portal appealed the trial court’s grant of summary judgment in favor of Subway.
Appellate Court Procedure
After filing this appeal, Fife Portal purportedly sold the property it leased to Subway to
JAMAT. Counsel for JAMAT represents that the sale occurred on December 6, 2024.1
1 The sale is not in the trial court record. But both parties agree that the property has been sold, and the sale is noted on the Pierce County Assessor’s website. This court may take judicial notice of facts “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” ER 201(b)(2); State v. Arlene’s Flowers, Inc., 193 Wn.2d
6 No. 60044-7-II
Subsequently, JAMAT filed a motion to intervene as both plaintiff in the trial court and
appellant in this court. A commissioner to this court denied this motion, informing JAMAT that
if it wanted to substitute itself as a party on appeal, it had to do so under RAP 3.2.
JAMAT filed a motion to modify the commissioner’s ruling, asserting that it was not
seeking to intervene under RAP 3.2 but rather under CR 24(a) and (b). This court granted the
motion to modify and permitted JAMAT to file a complaint in the superior court as requested.
However, the order stated, “This court’s allowance of this intervention does not impact this
court’s ability to assess all of the arguments raised in the briefs of the appellant and respondent.”
Ord. Granting Mot. to Modify Comm’r’s Ruling (Oct. 9, 2025).
ANALYSIS
A. LEGAL PRINCIPLES – UNLAWFUL DETAINER
Unlawful detainer proceedings are created by statute to provide an expedited way to
resolve whether a landlord or a tenant has the right to possession of property. Egbert v.
Jorgensen, 36 Wn. App. 2d 1, 20, 580 P.3d 1002 (2025). A tenant can be guilty of unlawful
detainer when they,
having leased property for an indefinite time with monthly or other periodic rent reserved, continues in possession thereof, in person or by subtenant, after the end of any such month or period, when the landlord, more than 20 days prior to the end of such month or period, has served notice (in manner in RCW 59.12.040 provided) requiring him or her to quit the premises at the expiration of such month or period.
RCW 59.12.030(2).
Unlawful detainer actions are “ ‘narrow’ ” and “ ‘limited to the question of possession
and related issues such as restitution of the premises and rent.’ ” Egbert, 36 Wn. App. 2d at 20
469, 496, 441 P.3d 1203 (2019) (discussing that in some situations an appellate court may take judicial notice of facts). We take judicial notice of the fact that the property has been sold.
7 No. 60044-7-II
(quoting Munden v. Hazelrigg, 105 Wn.2d 39, 45, 711 P.2d 295 (1985)). The right to possession
is the “primary issue” in an unlawful detainer action. Angelo Prop. Co., LP v. Hafiz, 167 Wn.
App. 789, 808, 274 P.3d 1075 (2012).
B. MOOTNESS – SALE OF PROPERTY
As a threshold matter, Subway argues that we can affirm the trial court’s decision because
Fife Portal sold the property at issue after it filed this appeal. An appeal is moot if we can no
longer provide effective relief. Dzaman v. Gowman, 18 Wn. App. 2d 469, 476, 491 P.3d 1012
(2021). Arguably, the fact that Fife Portal no longer owns the property moots this appeal. But
we conclude that we can grant effective relief.
Fife Portal concedes that it no longer has the right to possess the property at issue.
Because Fife Portal no longer owns the property, it no longer has a right to have the matter of
possession determined in an unlawful detainer action. However, JAMAT now owns the property
and would be able to assert the same unlawful detainer claim as Fife Portal. And the court
allowed JAMAT to intervene in this appeal, meaning that our decision will be binding on
JAMAT. Therefore, we can grant effective relief.
Accordingly, we will address the merits of Fife Portal’s appeal.
B. SUBWAY’S SUMMARY JUDGMENT MOTION
Fife Portal argues that the trial court erred in granting summary judgment in favor of
Subway because the lease had expired before Subway attempted to extend the lease for an
additional five year term. Fife Portal claims that the lease commenced in March 2017, when the
lease was executed. Therefore, Subway’s attempted renewal in September 2022 occurred after
the lease had expired. Subway argues that the lease commencement date was in June 2018 based
on the provisions of section R1 of the rider or at least on January 1, 2018, a date that Fife Portal
8 No. 60044-7-II
insisted was the commencement date. We agree with Subway that the lease commenced in June
2018.
1. Summary Judgment Standard
We review summary judgment orders de novo. Mihaila v. Troth, 21 Wn. App. 2d 227,
231, 505 P.3d 163 (2022). We view all evidence in the light most favorable to the nonmoving
party, including reasonable inferences. Id. Summary judgment is appropriate when no genuine
issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Id.
A genuine issue of material fact exists if reasonable minds can come to different conclusions on a
factual issue. Id. But summary judgment can be determined as a matter of law if the material
facts are not in dispute. Antio, LLC v. Dep’t of Revenue, 26 Wn. App. 2d 129, 134, 527 P.3d 164
(2023).
We can affirm a trial court’s grant of summary judgment on any ground supported by the
record. Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021).
2. Legal Principles
a. Contract Interpretation
We interpret leases in the same manner as other contracts. See Viking Bank v. Firgrove
Commons 3, LLC, 183 Wn. App. 706, 713-14, 334 P.3d 116 (2014) (applying general contract
interpretation principles to commercial lease). The primary purpose of contract interpretation is
to ascertain the intent of the parties at the time of contract formation. Id. at 712. We give words
their ordinary meaning unless the entire agreement clearly demonstrates otherwise. Id. at 713.
We interpret contracts as a whole and use the context of all the provisions of the contract to
interpret particular language. Id.
9 No. 60044-7-II
In addition, we apply the context rule to discern the meaning of a contract’s language. Id.
Under the context rule, we can examine the context surrounding a contract’s execution, including
the consideration of extrinsic evidence to help understand the parties’ intent. Id. Extrinsic
evidence is to be used to determine what the language in the contract means, not to show an
intent independent of the contract, or to modify the text. Id.
b. Agreement to Agree
We apply the objective manifestation test to determine whether an enforceable contract
has been formed between parties. P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 207, 289 P.3d
638 (2012). The parties must “objectively manifest their mutual assent to all material terms of
the agreement.” Id. at 209; see also Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 48, 470 P.3d
486 (2020). And “the terms assented to must be sufficiently definite.” Keystone Land & Dev.
Co. v. Xerox Corp., 152 Wn.2d 171, 178, 94 P.3d 945 (2004).
Agreements to agree are unenforceable. P.E. Sys., 176 Wn.2d at 208. An agreement to
agree is “ ‘an agreement to do something which requires a further meeting of the minds of the
parties and without which it would not be complete.’ ” Keystone, 152 Wn.2d at 175-76 (quoting
Sandeman v. Sayres, 50 Wn.2d 539, 541-42, 314 P.2d 428 (1957)). Courts refuse to enforce
agreements to agree to “ ‘avoid trapping parties in surprise contractual obligations.’ ” Keystone,
152 Wn.2d at 178 (quoting Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F. Supp. 491, 497
(S.D.N.Y. 1987)).
However, agreements with open terms are enforceable. P.E. Sys., 176 Wn.2d at 208.
“ ‘Under an agreement with open terms, the parties intend to be bound by the key points agreed
upon with the remaining terms supplied by a court or another authoritative source, such as the
Uniform Commercial Code.’ ” Id. (quoting Keystone, 152 Wn.2d at 176).
10 No. 60044-7-II
In P.E. Systems, the Supreme Court considered whether a contract was an unenforceable
agreement to agree. 176 Wn.2d at 207-10. In that case, the contract required the parties to
calculate a client’s historic cost by using a specific formula set out in the contract. Id. at 201-02.
The contract also stated that the final number resulting from the formula would be “set forth and
mutually agreed to by the parties” in an addendum. Id. at 202. The court concluded that this
contract was not an agreement to agree because the formula for determining cost was
nonnegotiable, and the addendum was an “open term that [could] easily be calculated.” Id. at
209- 210.
In contrast, in Sandeman, the Supreme Court determined that a bonus provision within an
employment contract was an agreement to agree. 50 Wn.2d at 540. The provision stated that a
“suitable” bonus “will be decided upon,” and paid to the employee after several months so that
the employer could “properly evaluate the market and acceptability of our products.” Id. at 540.
The court found this provision to be an agreement to agree because it required “a further meeting
of the minds of the parties before it would become a complete and enforceable agreement.” Id.
at 542.
c. Condition Precedent
A condition precedent is an event that must occur before there is a right to performance of
a contract. U.S. Bank Nat’l Ass’n as Tr. for Truman 2016 SC6 Title Tr. v. Rooslid, 17 Wn. App.
2d 589, 599, 487 P.3d 212 (2021). Nonoccurrence of a condition precedent excuses the parties
from performance. Id. We can discern whether a contractual provision is a condition precedent
based on the intent of the parties, as determined by the language of the contract and surrounding
circumstances. Id. The following words suggest a conditional intent: while, when, so that, as
soon as, provided that, on condition, and after. Id.; see also Tacoma Northpark, LLC v. NW, LLC,
11 No. 60044-7-II
123 Wn. App. 73, 80, 96 P.3d 454 (2004). Where liability under a contract depends on a
condition precedent, one cannot avoid their liability by making the performance of the condition
precedent impossible. Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wn. App. 630, 636,
700 P.2d 338 (1985).
“The general rule with respect to compliance with the terms of a bilateral contract is not
strict compliance, but substantial compliance.” DC Farms, LLC v. Conagra Foods Lamb
Weston, Inc., 179 Wn. App. 205, 220, 317 P.3d 543 (2014). This rule applies to conditions
precedent as well. See U.S. Bank Nat’l Ass’n, 17 Wn. App. 2d at 602-03. Therefore, nonmaterial
breaches of a condition precedent will not void the contract. See id. at 602-05.
d. Waiver
Waiver is the intentional and voluntary relinquishment of a known right. Schroeder v.
Excelsior Mgmt. Group, LLC, 177 Wn.2d 94, 106, 297 P.3d 677 (2013). Parties to a contract are
generally required to follow contract provisions unless they are waived. See Mike M. Johnson,
Inc. v. County of Spokane, 150 Wn.2d 375, 386, 78 P.3d 161 (2003). A party may waive a
contract provision that is meant for its benefit. Id. And contract provisions that are meant to
benefit both parties to a contract still can be waived. Salvo v. Thatcher, 128 Wn. App. 579, 586-
87, 116 P.3d 1019 (2005).
Waiver may be either express or implied through a party’s conduct. In re Est. of Petelle,
195 Wn.2d 661, 665, 462 P.3d 848 (2020). Implied waiver occurs when a party’s unequivocal
acts or conduct demonstrate an intent to waive. 224 Westlake, LLC v. Engstrom Props., LLC, 169
Wn. App. 700, 714, 281 P.3d 693 (2012). But waiver cannot be implied from a party’s
ambiguous conduct. Id. And the party’s conduct must be inconsistent with any intention other
than waiver. Edmonson v. Popchoi, 155 Wn. App. 376, 390, 228 P.3d 780 (2010).
12 No. 60044-7-II
The burden of proving intent to waive is on the party claiming waiver. Saili v. Parkland
Auto Ctr., Inc., 181 Wn. App. 221, 225, 329 P.3d 915 (2014).
3. Analysis
The issue here is when the lease commenced. Fife Portal argues that the lease
commenced in March 2017, when the lease was executed. Subway argues that the lease
commencement date was in June 2018 based on the provisions of section R1 of the rider. We
conclude that under section R1, the lease commenced in June 2018.
a. Enforceability of Section R1
Initially, Fife Portal argues that the provision in section R1 describing the lease
commencement date was an unenforceable agreement to agree. We disagree.
The relevant section, section R1 of the rider, states,
This Lease and all of its corresponding rights and obligations other than the payment of Rent shall commence when all of the following requirements have been met (“Lease Commencement Date”): 1) Completion of Landlord’s work and delivery of possession, 2) Receipt by Tenant of all necessary approvals and permits and 3) acceptance of the Premises by Tenant as evidenced by Tenant’s written acknowledgement of receipt and acceptance of a letter of possession from Landlord (Exhibit B).
CP at 152. And Exhibit B states,
In accordance with the Lease Agreement between the parties dated ____ 20 , Landlord warrants by signature below that all of it’s construction obligations under the lease are complete and the premises is hereby delivered to Tenant on ____ 20 . Execution of this Letter of Possession by Tenant shall signify the delivery of possession and acceptance of same by Tenant and satisfy the obligations of section of the lease.
CP at 161.
Fife Portal argues that when read together, section R1 and exhibit B required the parties
to agree on a post-ratification commencement date affirmatively. But nothing in the text of these
subsections suggests that the date exhibit B was signed would constitute a negotiated
13 No. 60044-7-II
commencement date of the lease. In fact, under section R1, the lease could commence after
exhibit B was signed even if the permitting process was completed at a later date.
Instead, section R1 describes three easily identifiable events that would trigger the
commencement of the lease: (1) completion of Fife Portal’s work and delivery of possession, (2)
Subway’s receipt of all necessary approvals and permits, and (3) Subway’s acceptance of the
premises. The lease identified what the landlord’s duties were and whether they were complete
was readily ascertainable by inspection of the premises. See P.E. Sys., 176 Wn.2d at 210 (finding
contract valid where it contains an easily calculated open term).
Nothing about section R1 threatened to trap the parties in “ ‘surprise contractual
obligations’ ” like the agreements to agree contemplated in other cases. Keystone, 152 Wn.2d at
178 (quoting Teachers Ins., 670 F. Supp. at 497). The terms of this contract are even more
definite than the enforceable contract discussed in P.E. Systems, because in that case there was an
explicit reference to a future mutual agreement. 176 Wn.2d at 201-02. And here, there were no
open terms that required future resolution; the triggering events were definite and clear. Id. at
208-210 (discussing that contract contains open terms).
Fife Portal argues that exhibit B required future negotiations because it stated that the
Fife Portal “warrants” that its construction obligations were complete and “hereby” delivered
possession. But these terms do not suggest Subway and Fife Portal had to agree on anything.
Therefore, we conclude that section R1 is not an unenforceable agreement to agree.
b. Condition Precedent
Fife Portal argues that even if section R1 was enforceable, execution of exhibit B
attached to section R1 was a condition precedent to the lease commencing that was never
fulfilled. We disagree.
14 No. 60044-7-II
First, we conclude that the signing of exhibit B was not a condition precedent to
commencement of the contract. The contract states that exhibit B is evidence that Subway
accepted the premises, not a requirement for commencement of the lease. Subway’s actual
acceptance was the third condition for commencement of the lease. The term “as evidenced by”
does not suggest the form was required as a condition of performance under the contract. CP at
152; see U.S. Bank Nat’l Ass’n, 17 Wn. App. 2d at 599 (listing operative language that suggests a
condition precedent).
Second, the general rule is that only substantial compliance, not strict compliance, is
required for contractual terms and conditions precedent. DC Farms, 179 Wn. App. at 220; U.S.
Bank, 17 Wn. App. 2d at 602-05. Here, there is no dispute that Fife Portal completed its
construction obligations, the permitting process was completed, and Subway accepted the
premises. The parties agree that those conditions were met in June 2018. Therefore, even absent
execution of exhibit B, the requirements of section R1 were met. And the duties and obligations
in the lease commenced when the required conditions were actually met. Therefore, substantial
compliance occurred even though exhibit B was not signed.
Third, where liability under a contract depends on a condition precedent, a party cannot
avoid their liability by making the performance of the condition precedent impossible. Barrett,
40 Wn. App. at 636 (“failure or nonoccurrence of a condition will not excuse the promisor’s
performance if the condition’s failure was the fault of the promisor.”). Here, Fife Portal made
performance impossible because it refused to sign exhibit B when Subway proffered it even
though there was no question that Fife Portal had completed its construction obligations and
delivered possession to Subway. Fife Portal may not now escape the terms of the deal it
negotiated and entered in to because it refused to sign exhibit B.
15 No. 60044-7-II
Fourth, Subway – the party benefitted – waived exhibit B as a requirement of
performance. “A party to a contract may waive a contract provision, which is meant for its
benefit, and may imply waiver through its conduct.” Mike M. Johnson, 150 Wn.2d. at 386. Fife
Portal states that Exhibit B was added to benefit Subway. And the text clarifies that part three of
the lease commencement date was intended to benefit Subway, because the provision gave
Subway the right to reject the letter of possession from the Fife Portal or to avoid accepting the
premises. Signing exhibit B was an additional obligation that Fife Portal had to perform to assist
Subway in its recordkeeping needs. Provision 3 of section R1 and exhibit B were made to
benefit Subway, and therefore Subway had the sole right to waive the letter of possession
requirement. Subway waived this requirement when it stopped trying to get Fife Portal to sign
exhibit B and continued performing.
c. Summary
We conclude that there is no genuine dispute that section R1 was a valid and enforceable
term in the lease. The parties do not dispute that the commencement conditions were met, at
their earliest, in June 2018 when Subway received its permits from the City of Fife and Sua
opened its restaurant. Therefore, we conclude that the lease commenced in June 2018. This
means that Subway’s September 2022 renewal notice occurred more than six months before
expiration of the lease in June 2023 and was timely. We hold that as a matter of law, Subway is
not guilty of unlawful detainer because its renewal notice was timely and it possessed the
property pursuant to a valid lease.
Accordingly, we affirm the trial court’s grant of summary judgment in favor of Subway.2
2 Because of our holding, we need not address Subway’s alternative arguments based on a commencement date of January 1, 2018.
16 No. 60044-7-II
C. FIFE PORTAL’S SUMMARY JUDGMENT MOTION
Fife Portal argues in an assignment of error and in his brief that the trial court erred in
denying its motion for summary judgment. But just as the trial court did not err in granting
summary judgment in favor of Subway, the court did not err in denying Fife Portal’s summary
judgment motion.
CONCLUSION
We affirm the trial court’s summary judgment order. This decision is binding on JAMAT.
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.
MAXA, P.J.
We concur:
GLASGOW, J.
CRUSER, J.