IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MIKE VAN VALKENBURG a/k/a MICHAEL ALLEN VAN No. 85281-7-I VALKENBURG, DIVISION ONE Respondent, UNPUBLISHED OPINION v.
MESHESHA TADESSE, individually and on behalf of his marital community,
Appellant.
YET OIL AND BRAKE SERVICES LLC, a Washington limited liability company; LEO.RAH LLC d/b/a SASHA’S BIKINI ESPRESSO, a Washington limited liability company; and ANY OTHER OCCUPANTS OF THE PROPERTY LOCATED AT 2006 RAINIER AVENUE SOUTH, SEATTLE, WA 98144,
Defendants.
BIRK, J. — Meshesha Tadesse appeals a judgment against him that found
him in unlawful detainer of a commercial property owned by Michael Van
Valkenburg and liable for unpaid obligations under the parties’ lease agreement.
Substantial evidence supports the trial court’s findings of fact, which in turn support
the trial court’s conclusions of law. We affirm and award reasonable attorney fees
and costs to Van Valkenburg pursuant to the lease’s attorney fees provision. No. 85281-7-I/2
I1
Van Valkenburg owns seven to nine properties and has been leasing them
out for 35 years. One of these properties is the commercial property at issue in
this case, which is located in Seattle. In January 2020, Budget Batteries Inc., the
previous tenant, contacted Van Valkenburg to have Tadesse take over the lease
to the property. Van Valkenburg drafted a lease agreement and sent it to Tadesse,
who expressed interest in eventually converting the property from a service station
into a coffee shop. The lease was for a term of three years beginning on January
1, 2020. Absent Van Valkenburg’s written consent, the premises could be used
only for the business of a coffee shop and brake and oil repair shop. Under the
terms of the agreement, Van Valkenburg was required to maintain the structure of
the building, roof, common areas, and parking lot in good condition. Tadesse was
required to pay $3,000.00 per month for rent, pay 100 percent of all taxes levied
against the property, and reimburse Van Valkenburg for insurance premiums on
the property. The agreement prohibited Tadesse from subleasing any part of the
property without Van Valkenburg’s written consent. Under an option to renew
clause, Tadesse was entitled to a three year option to renew the lease only if he
was current on his obligations under the lease. The agreement contains an
1 The substantive facts in this opinion are drawn from the trial testimony and
the trial court’s unchallenged findings of fact. Unchallenged findings of fact are accepted as true on appeal. Tedford v. Guy, 13 Wn. App. 2d 1, 12, 462 P.3d 869 (2020). While neither party designated the trial exhibits for purposes of this appeal, the trial exhibit list describes two exhibits admitted as attachments to Van Valkenburg’s declaration, which are included in the clerk’s papers. Van Valkenburg’s declaration was filed in support of his motion for order to show cause why a writ of restitution should not be issued and motion for order directing issuance of a writ of restitution.
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attorney fee provision, which states, “If legal notices, suit or action is instituted in
connection with any controversy arising out of this lease, the prevailing party shall
be entitled to recover, in addition to costs, reasonable attorney fees.” Van
Valkenburg and Tadesse both signed, but did not separately include dates next to
their signatures, and a notary public notarized, signed, and dated the agreement
on February 1, 2020.
According to a “Statement of Account” prepared by Van Valkenburg’s
counsel, Tadesse fairly consistently met his rent obligations only in 2021, paid the
annual insurance premium only one out of three times, and missed all three annual
property tax payments. Despite this history of missed payments, Van Valkenburg
agreed to renew Tadesse’s lease starting December 2022, increasing the rent to
$3,500.00 per month.
Tadesse subleased part of the property at some point to a former barista in
his coffee shop and collected $2,700.00 in monthly rent from her, but never
remitted any portion of those payments to Van Valkenburg. On February 8, 2023,
Van Valkenburg gave notice to Tadesse, LEO.RAH LLC doing business as
“Sasha’s Bikini Espresso,” and all other occupants of the property that they were
in default of rent and other payment obligations totaling $36,135.38. The notice
told the occupants to pay the total amount in default or surrender the premises
within three days after service of the notice.
On February 23, 2023, Van Valkenburg filed a complaint against Tadesse,
YET Oil and Brake Services LLC, and Sasha’s Bikini Espresso, alleging unlawful
3 No. 85281-7-I/4
detainer and breach of contract. Tadesse filed his answer, a motion to dismiss
Van Valkenburg’s complaint, and a supporting affidavit, where he advanced a
forgery counterclaim based on the copy of the lease agreement Van Valkenburg
submitted and requested an award of $50,000.00. Tadesse further alleged he had
incurred expenses to repair the premises and install new equipment, he struggled
to pay rent as a result of COVID-19, and Van Valkenburg’s motivation for seeking
his eviction was to sell the property at a profit. Trial commenced on April 17, 2023
and lasted one day. Van Valkenburg, Tadesse, and Tadesse’s expert witness
James Green testified.
Van Valkenburg denied being told about a leak in the roof and stated
Tadesse had told him that the roof was fixed. Van Valkenburg testified that in
December 2022 or early January 2023, Tadesse said he owed him $8,400.00 for
roof work, but Van Valkenburg never received any pictures of the work, information
on who did the work, or a receipt from a licensed contractor that the work was
completed. Van Valkenburg testified he learned Tadesse subleased the property
only after the sublessee reached out to him about a power problem on the property.
This was also the first time Van Valkenburg learned about a power issue on the
property. Van Valkenburg had not given Tadesse permission to sublease the
property.
On April 19, 2023, the trial court entered its findings of fact, conclusions of
law, and final judgment. The trial court found Tadesse was in unlawful detainer of
the property, awarded a principal judgment of $32,135.38 to Van Valkenburg,
4 No. 85281-7-I/5
dismissed Tadesse’s counterclaim with prejudice, and awarded attorney fees and
costs to Van Valkenburg. Tadesse appeals.
II
We review a trial court’s findings of fact in an unlawful detainer action for
substantial evidence. Tedford v. Guy, 13 Wn. App. 2d 1, 12, 462 P.3d 869 (2020).
We begin with a presumption in favor of the trial court’s findings and the appellant
has the burden of showing that a finding of fact is not supported by substantial
evidence. Lang Pham v. Corbett, 187 Wn. App. 816, 825, 351 P.3d 214 (2015).
Substantial evidence exists when there is a sufficient quantity of evidence to
persuade a fair-minded, rational person that a finding is true. Spencer v. Badgley
Mullins Turner, PLLC, 6 Wn. App. 2d 762, 794-95, 432 P.3d 821 (2018). Where
evidence conflicts, we need only determine “ ‘whether the evidence most favorable
to the prevailing party supports the challenged findings.’ ” State v. Living
Essentials, LLC, 8 Wn. App. 2d 1, 14, 436 P.3d 857 (2019) (quoting Prostov v.
Dept. of Licensing, 186 Wn. App. 795, 820, 349 P.3d 874 (2015)). We will not
reweigh the evidence or the credibility of the witnesses on appeal. Id. at 15. After
reviewing the findings of fact, we then decide whether those findings support the
trial court’s conclusions of law. Tiller v. Lackey, 6 Wn. App. 2d 470, 484, 431 P.3d
524 (2018). Conclusions of law are reviewed de novo. Tedford, 13 Wn. App. 2d
at 12. Unchallenged findings of fact are accepted as true on appeal. Id.
Unchallenged conclusions of law become the law of the case. The-Anh Nguyen
v. City of Seattle, 179 Wn. App. 155, 163, 317 P.3d 518 (2014).
5 No. 85281-7-I/6
A
Although not directly challenged by Van Valkenburg, we first address
Tadesse’s failure to specify the findings of fact he challenges in his opening brief.
RAP 10.3(g) requires a separate assignment of error for each challenged
finding of fact with reference to the finding by number. The rules of appellate
procedure are to “be liberally interpreted to promote justice and facilitate the
decision of cases on the merits. Cases and issues will not be determined on the
basis of compliance or noncompliance with these rules except in compelling
circumstances where justice demands.” RAP 1.2(a). We wield discretion to
consider cases and issues on the merits under RAP 1.2. State v. Olson, 126
Wn.2d 315, 323, 893 P.2d 629 (1995). This discretion should be exercised unless
there are compelling reasons not to do so. Id. Where the nature of the appeal is
clear and the relevant issues are argued, citations provided, and the respondent
is not prejudiced, there is no compelling reason for an appellate court to not
consider the merits of the case or issue. Id.
Tadesse’s opening brief failed to comply with RAP 10.3 because Tadesse
did not identify the specific findings of fact he is challenging. Courts hold pro se
litigants to the same standards as attorneys. In re Vulnerable Adult Pet. for Winter,
12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020). But the issues Tadesse raised
were sufficiently clear for Van Valkenburg to discern and answer. This is evinced
by the fact that Van Valkenburg explicitly outlines in his brief the findings and
conclusions he believes Tadesse is challenging and addresses them accordingly.
6 No. 85281-7-I/7
We exercise our discretion and consider the assignments of error that are properly
before us. We set forth the specific findings of fact we deem sufficiently challenged
below. The remaining findings of fact are accepted as true.
B
Tadesse challenges finding of fact 2, which states,
On January 24, 2020, Plaintiff Michael Van Valkenburg and Meshesha Tadesse executed an agreement for the lease of the Property from January 1, 2020 to December 31, 2022 (the “Lease”).
The lease agreement states the lease begins on January 24, 2020 and both Van
Valkenburg and Tadesse signed the agreement. Although neither Van Valkenburg
or Tadesse separately affixed dates to those signatures, the trial court was entitled
to believe that the date listed at the top of the lease agreement was the date of its
execution. The date listed on the lease agreement and Van Valkenburg’s
testimony about the December 2022 lease renewal supports a three year lease
term from January 1, 2020 to December 31, 2022. Tadesse made payments for
rent and one payment for annual insurance premiums along the terms laid out in
the lease agreement. Substantial evidence supports finding of fact 2.
Tadesse challenges finding of fact 5, which states,
On February 1, 2020, Defendant Tadesse had his signature witnessed and acknowledged by Notary Public Maricarmen Magana.
Van Valkenburg testified he believed he received the signed, notarized lease
agreement back from Tadesse and did not have the document notarized himself.
Tadesse denied having the lease agreement notarized in 2020. On cross-
examination, Van Valkenburg’s counsel referenced a declaration Magana signed
7 No. 85281-7-I/8
where she certified that she worked at a Well Fargo Bank branch in Seattle in 2020
and notarized documents as part of her job. Magana stated she notarized
Tadesse’s signature on February 1, 2020 and her practice would have been to
obtain Tadesse’s identification, witness him sign the document, then notarize his
signature. This declaration was not admitted as a trial exhibit. But Tadesse agreed
that he made early 2020 payments from a Wells Fargo Bank branch in Seattle and
testified he had no reason to believe Magana was lying in that declaration. The
trial court was entitled to credit Van Valkenburg’s testimony and reject Tadesse’s.
Finding of fact 5 is supported by substantial evidence.
Tadesse challenges finding of fact 6, which states,
Between January 1, 2020 and November 30, 2022, Mr. Tadesse failed to pay amounts due under the Lease in the sum of $32,135.38.
Van Valkenburg testified that Tadesse never paid him any property taxes or
reimbursed for insurance premiums, other than a one time payment of $1,000.00.
Van Valkenburg testified at length about three of his bank statements from 2020,
2021, and 2022 that tracked the payments Tadesse made. These exhibits were
admitted into evidence. The trial court also admitted Van Valkenburg’s statement
of account that summarized the charges to Tadesse and payments made against
those charges from January 2020 to February 2023. Van Valkenburg stated this
ledger looked true and correct to the best of his knowledge. At the time the parties
renewed the lease in December 2022, Tadesse owed $32,135.38. By February
2023, Tadesse’s outstanding balance totaled $36,135.38. Van Valkenburg
testified he eventually spoke with Tadesse about his outstanding balance and
8 No. 85281-7-I/9
explained that based on the terms of the lease agreement, Tadesse was required
to pay the property taxes and reimburse him for the insurance payments, to which
Tadesse said he would. In 2020, Van Valkenburg reminded Tadesse once or twice
about the outstanding payments that he owed. Tadesse testified he made all
required payments under the lease including the rent he owed and disagreed that
he was obligated to pay the property taxes. The trial court declined to award any
amount due on the December 2022 lease renewal because Van Valkenburg “was
on notice that [Tadesse] was unable/unwilling to reliably and fully pay the rent.”
The trial court’s determination of $32,135.38 as the amount due is supported by
Van Valkenburg’s testimony and the statement of account.
Tadesse argues on appeal that at the signing of the lease agreement,
Tadesse asked Van Valkenburg about property tax payments and insurance
premium costs and Van Valkenburg allegedly responded, “ ‘Do not worry about it;
just pay $3,000 every month.’ ” Even if these statements had been before the trial
court in evidence, the trial court would not have been required to credit them.
Finding of fact 6 is supported by substantial evidence.
Tadesse challenges conclusions of law 2 and 3, which state,
Mr. Tadesse breached the terms of the lease by failing to pay rent and property taxes, and failing to reimburse Mr. Van Valkenburg for insurance on the property.
. . . . As a result of Mr. Tadesse’s breaches of the Lease, Mr. Van Valkenburg was damaged in the amount of $32,135.38.
Unchallenged finding of fact 3 states the lease agreement obligated Tadesse to
pay base rent of $3,000.00, property taxes due on the property, and to reimburse
9 No. 85281-7-I/10
Van Valkenburg for property insurance. By failing to meet his payment obligations
under this agreement and accruing a total unpaid balance of $32,135.38, Tadesse
breached the terms of the lease agreement. Findings of fact 2, 3, and 6 support
conclusions of law 2 and 3.
Tadesse challenges conclusion of law 5, which states,
Mr. Tadesse neither paid rent nor quit the premises, placing him in unlawful detainer of the property.
A person who continues in possession of real property after defaulting by failing to
pay rent is liable for unlawful detainer. RCW 59.12.030(3); Sprincin King St.
Partners v. Sound Conditioning Club, Inc., 84 Wn. App. 56, 63, 925 P.2d 217
(1996). RCW 59.12.030(3) requires the landlord to provide notice in writing that
permits the tenant to pay the outstanding rent owed or the surrender the detained
premises three days after service of the notice. An unlawful detainer action is “a
summary proceeding for obtaining possession of real property.” Fed. Nat’l Mortg.
Ass’n v. Ndiaye, 188 Wn. App. 376, 382, 353 P.3d 644 (2015). “The action is a
narrow one, limited to the question of possession and related issues such as
restitution of the premises and rent.” Munden v. Hazelrigg, 105 Wn.2d 39, 45, 711
P.2d 295 (1985).
In an unchallenged conclusion of law, the trial court noted that Tadesse was
validly served with the required statutory notice to pay rent or quit the premises
pursuant to RCW 59.12.030 and .040. Van Valkenburg testified he had the right
to give Tadesse three day notice when he had not paid rent and not paid back
property taxes, so “that’s the process we took.” Because Tadesse defaulted by
10 No. 85281-7-I/11
failing to pay his rent and Van Valkenburg properly served Tadesse with the
required notice to vacate the property or pay, Tadesse was in unlawful detainer of
Van Valkenburg’s property. Findings of fact 2 and 6 and conclusion of law 4
support conclusion of law 5.
Tadesse challenges conclusion of law 6, which states,
At Mr. Tadesse’s request, the Court allowed Mr. Tadesse to pursue his counter-claim that the lease was a forgery, which the Court accepted as a fraud cause of action. The Court heard testimony from forensic document examiner, Mr. Green. The Court did not find that any forgery occurred.
Tadesse argues Van Valkenburg impermissibly altered the lease agreement after
he signed it and failed to provide a copy of the revised lease agreement to him. If
findings of fact are mischaracterized as conclusion of law, we analyze them as
findings of fact. Real Carriage Door Co., Inc. ex rel. Rees v. Rees, 17 Wn. App.
2d 449, 457, 486 P.3d 955 (2021).
There are several handwritten notations on the lease agreement. Van
Valkenburg testified he added notes for himself and since his children have started
getting involved in his business, they can refer to the notes for help. Van
Valkenburg testified he mistakenly wrote “2003” as the end date for the lease,
crossed out “2003” and corrected it to “2022.” This also led him to write “please
sign and send original back to me” at the bottom of that page. Next to the lease’s
option to renew clause, Van Valkenburg had written “3,500.00 per month amount,”
but could not remember if he wrote that in 2020. The remainder of the handwritten
notes are located at the bottom of the lease. At the time of the lease renewal in
11 No. 85281-7-I/12
December 2022 and after having spoken on the phone with Tadesse, Van
Valkenburg testified that he wrote, “This is a NNN lease 3000.00 3 year” and
“3,500.00 for Mesh starting Dec 2022.” Van Valkenburg included his initials and
signatures after these notes at the end of the lease.
Green is a forensic document examiner. Green testified he was asked to
compare the three page lease Tadesse reportedly received from Van Valkenburg
with the six page lease Van Valkenburg subsequently provided to Tadesse. Green
discussed several observations: the difference in page length between the two
documents, the difference between notation marks and the top of the first page
between the two documents, the lack of any handwritten notes in the three page
lease, and the lack of a notary block on the three page version. Those differences
led Green to conclude that further exploration should be considered. Green
created a report containing his observations and conclusions, which the trial court
denied admission into evidence. On cross-examination, Green agreed that it is
possible that Tadesse “may have omitted a page or two” from the documents he
was given, and at least the signatures of the parties appear consistent.
Substantial evidence exists to support the trial court’s finding that no forgery
occurred. Although Green noted some discrepancies between the two
agreements Tadesse provided him, several of the differences could be explained
by omitting pages from one of the agreements. Van Valkenburg described a
logical explanation for his handwritten notations on the lease. Tadesse’s actions
after December 2022 in paying $3,500.00 at the end of the month corroborate the
12 No. 85281-7-I/13
renewal agreement’s terms as described by Van Valkenburg’s testimony and
handwritten notes on the original lease. The trial court did not erroneously enter
conclusion of law 6.
The trial court’s challenged findings of fact and conclusions of law are
supported.
C
Tadesse makes several additional arguments.
Tadesse cites case law discussing the standards for the admissibility of
evidence, including expert opinion, and accuses Van Valkenburg of intentionally
providing fabricated documents to mislead the court. We read Tadesse’s
arguments not as challenging the admissibility of the evidence presented, but
rather the weight and persuasiveness given to what was admitted by the trial court.
We do not reweigh the evidence or the credibility of the witnesses on appeal.
Tadesse contends the trial court failed to ask questions of Van Valkenburg
and his expert witness. ER 614(b) permits the court to question witnesses called
by a party during a bench trial. But the rule does not require trial judges to question
witnesses, and Tadesse cites no authority to support this argument.
Tadesse cites RCW 9A.60.010 and .020, the definitions section for the
criminal chapter on fraud and the criminal forgery statute, claiming Van Valkenburg
violated these statutes by refusing the fix damage to the property. However, the
trial court found, based on substantial evidence, that no forgery occurred. Further,
13 No. 85281-7-I/14
these statutes fall outside scope of an unlawful detainer action and therefore our
review.
Tadesse argues the trial court lacked impartiality, perhaps on account of
Tadesse being a minority, and the trial court was “harsh and inconsiderate” to him
and “acted contrary to the Judicial Canon.” While Tadesse does not point us to
specific statements by the trial court to support his argument, our review of the
record reveals that the trial judge exhibited patience and understanding when
explaining trial proceedings, the appropriate form of questions during cross-
examination, and objections to the admissibility of exhibits. Nothing in the record
demonstrates that the trial court exhibited bias against Tadesse’s theory of his
case or Tadesse individually.
Tadesse contends Van Valkenburg avoided repairing the damaged
building’s roof and electrical panel as required under RCW 62A.2A-301. That
statute states, “Except as otherwise provided in this Article, a lease contract is
effective and enforceable according to its terms between the parties, against
purchasers of the goods and against creditors of the parties.” Id. This statute is
not applicable and Van Valkenburg’s testimony makes clear that these issues were
not brought to his attention or sufficiently supported by documentation for him to
take action. The trial court was entitled to credit this testimony over Tadesse’s.
For the first time on appeal, Tadesse argues Van Valkenburg violated the
Consumer Protection Act, chapter 19.86 RCW. Because Tadesse did not make
14 No. 85281-7-I/15
this argument before the superior court, we decline to address this claim. RAP
2.4(a). .
For the first time on reply, Tadesse advances new bases for relief: the trial
court’s alleged violation of RCW 4.44.070 and .080 and that Van Valkenburg
allegedly committed perjury and fraud. We decline to reach those arguments.
RAP 10.3(c); Ainsworth v. Progressive Cas. Ins. Co., 180 Wn. App. 52, 78 n.20,
322 P.3d 6 (2014) (“We will not consider issues argued for the first time in the reply
brief. The reply brief is limited to a response to the issues in the responding brief.
To address issues argued for the first time in a reply brief is unfair to the respondent
and inconsistent with the rules on appeal.” (citation omitted)).
On April 5, 2024, after having filed his reply brief as authorized by RAP
10.1(b), Tadesse filed a “petition for extraordinary urgent action for injunction &
sanction,” an affidavit he signed and had notarized on April 4, 2024, and two
exhibits. In this filing, Tadesse discusses several issues he raised in his briefs,
such as the credibility of Van Valkenburg’s testimony and the trial court’s alleged
partiality. Tadesse also raises new issues, such as whether the trial court received
materials he submitted before trial. Tadesse’s affidavit and one of the attached
exhibits appear to be additional evidence outside our record. Under RAP 10.1(b),
the parties “may” files the briefs listed there, and under RAP 10.1(h), the court on
motion may direct the filing of other briefs. The rules contemplate that briefs other
than those listed in RAP 10.1(b) may be filed only with leave of court. Tadesse did
not obtain leave of court to file an additional brief as required by RAP 10.1(h).
15 No. 85281-7-I/16
Further, RAP 9.11(a) allows this court to take additional evidence only if six criteria
are met. Tadesse does not address these six requirements. City of Seattle v.
Seattle Police Officers’ Guild, 17 Wn. App. 2d 21, 60, 484 P.3d 485 (2021). We
have reviewed Tadesse’s new filing and conclude it is both impermissible under
the Rules of Appellate Procedure and, in addition, does not raise any issue that
would affect the analysis of the arguments properly before the court.
III
Van Valkenburg requests attorney fees on appeal pursuant to RAP 18.1.
“We will award attorney fees to the prevailing party ‘only on the basis of a
private agreement, a statute, or a recognized ground of equity.’ ” Buck Mountain
Owner’s Ass’n v. Prestwich, 174 Wn. App. 702, 731, 308 P.3d 644 (2013) (quoting
Equitable Life Leasing Corp. v. Cedarbrook, Inc., 52 Wn. App. 497, 506, 761 P.2d
77 (1988)). “ ‘A contractual provision for an award of attorney’s fees at trial
supports an award of attorney’s fees on appeal under RAP 18.1.’ ” Thompson v.
Lennox, 151 Wn. App. 479, 491, 212 P.3d 597 (2009) (quoting W. Coast Stationary
Eng’rs Welfare Fund v. City of Kennewick, 39 Wn. App. at 477, 694 P.2d 1101
(1985)). Pursuant to RCW 4.84.330, the prevailing party in an action to enforce or
defend a contract is entitled to attorney fees and costs where the contract so
provides. Reeves v. McClain, 56 Wn. App. 301, 311, 783 P.2d 606 (1989). A
prevailing party is one in whose favor final judgment is rendered. RCW 4.84.330.
Van Valkenburg is the prevailing party in this appeal. The trial court
awarded Van Valkenburg “reasonable contractual attorneys’ fees and costs”
16 No. 85281-7-I/17
based on the terms of the lease. Tadesse does not challenge that award and the
same provision entitles Van Valkenburg to reasonable attorney fees and costs on
appeal. These shall be determined by a commissioner of this court, subject to Van
Valkenburg’s compliance with RAP 18.1(d). Because Tadesse is not the prevailing
party, he is not entitled to the affirmative relief he requests.
Affirmed.
WE CONCUR: