State v. Schwab

693 P.2d 108, 103 Wash. 2d 542
CourtWashington Supreme Court
DecidedJanuary 11, 1985
Docket50756-2
StatusPublished
Cited by31 cases

This text of 693 P.2d 108 (State v. Schwab) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schwab, 693 P.2d 108, 103 Wash. 2d 542 (Wash. 1985).

Opinions

Andersen, J.

Facts of Case

At issue in this case is whether violations of the Residential Landlord-Tenant Act of 1973 come under the Consumer Protection Act.

This case of first impression was certified to this court by the State of Washington Court of Appeals, Division One, at the request of the Attorney General. In making such request the Attorney General's office represented that it was "important that the Attorney General establish whether Residential Landlord-Tenant Act violations indeed violate the Consumer Protection Act" and that "because of the significant impact that a ruling on any issue adverse to the state would have, it is probable that legislative changes would need to be sought."

[544]*544The defendants in this case are Anthony Schwab and his wife. For convenience, we will refer to Mr. Schwab as though he were the sole defendant. He bought a number of submarginal Seattle residential housing units at tax and lien foreclosure sales and thereafter rented them, usually for less than $150 per month. This litigation primarily concerns four of those units.

The defendant's management philosophy, as found by the trial court, was this: "Defendant Schwab prepared rental agreements for his tenants to sign. These agreements generally provided that in exchange for low rent, the tenant was required to take the premises on an 'as is' basis and that defendant Schwab would not provide repairs or landlord services."1 The defendant's business practices were somewhat informal, at best. For example, the rental agreements were handwritten, and the tenant in one of his units here involved paid no rent at all for the 3V2 years of his tenancy prior to the trial.

Two of the tenants complained to the Consumer and Business Fair Practices Division of the State Attorney General's office. Following an investigation, that office filed a Complaint for Injunctive and Additional Relief under the Consumer Protection Act in the Superior Court of the State of Washington for King County.

Following a 4-day trial to the court, the court found as facts that the defendant had violated sections of the City of Seattle Housing Code, Seattle Municipal Code 22.200, and of the Residential Landlord-Tenant Act of 1973, RCW 59.18. At this point it should be observed parenthetically that the city housing code violations are, by reference in the landlord-tenant act, RCW 59.18.060(1), made violations of the landlord-tenant act and they are so considered herein. The trial court concluded that the defendant's acts were violations of the landlord-tenant act and of the Consumer Protection Act, RCW 19.86.020.

[545]*545Acting pursuant to provisions of the Consumer Protection Act, the trial court awarded restitution in the sum of $125 to a tenant found to have made a security deposit that had not been returned and awarded judgment to the State against the defendant for $8,800 in civil penalties and $25,000 in attorneys' fees. Thus, the total judgment against the defendant was $33,925 plus costs. The defendant was also enjoined from further similar acts. In argument before this court the defendant states that he has since sold the houses involved.

The defendant appeals; the State cross-appeals alleging that the trial court abused its discretion in not awarding an additional $20,158.05 in attorneys' fees.

One question is dispositive of the various issues raised by the appeal and cross appeal.

Issue

Are residential tenancies subject to the provisions of the Consumer Protection Act?

Decision

Conclusion. Residential landlord-tenant problems are within the express purview of the Residential Landlord-Tenant Act of 1973, RCW 59.18, and we perceive the Legislature's intent to clearly be that violations of that act do not also constitute violations of the Consumer Protection Act, RCW 19.86. We reverse the trial court.

In the interest of readability, the citations in this opinion have been placed in the margin wherever feasible.

The Consumer Protection Act, RCW 19.86, declares unlawful "[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce". RCW 19.86.020. The authority of the Attorney General to proceed under the act is found in the following section thereof:

The attorney general may bring an action in the name of the state against any person to restrain and prevent [546]*546the doing of any act herein prohibited or declared to be unlawful; and the prevailing party may, in the discretion of the court, recover the costs of said action including a reasonable attorney's fee.
The court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any act herein prohibited or declared to be unlawful.

RCW 19.86.080.

As this court held in the leading 1972 Consumer Protection Act case of State v. Reader's Digest Ass'n, 81 Wn.2d 259, 275, 501 P.2d 290 (1972), appeal dismissed, 411 U.S. 945, 36 L. Ed. 2d 406, 93 S. Ct. 1927 (1973):

In the final analysis, the interpretation of RCW 19.86.020 is left to the state courts. This enables us to arrive at the statute's meaning by the same "gradual process of judicial inclusion and exclusion" used by the federal courts. . . . But in each case the question of what constitutes an "unfair method of competition" or an "unfair or deceptive act or practice" under RCW 19.86.020 is for us, rather than the federal courts, to determine.

In the more than a decade since that decision, this court and the other courts of this state have been engaged in that "gradual process of judicial inclusion and exclusion". Since prevailing claimants in Consumer Protection Act cases are entitled to recover, in addition to actual damages, reasonable attorneys' fees and in some cases treble damages,2 there has been no dearth of litigation under the act.

The Legislature, which adopted the Consumer Protection Act in the first instance, has further facilitated this inclusion and exclusion process.

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Cite This Page — Counsel Stack

Bluebook (online)
693 P.2d 108, 103 Wash. 2d 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schwab-wash-1985.