Surina Center Llc, V. Emily Anton D/b/a The Ballet And Movement School

• Court: Court of Appeals of Washington
• Decided: November 7, 2022
• Docket: 83249-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

SURINA CENTER LLC, No. 83249-2-I

Respondent, UNPUBLISHED OPINION v.

EMILY ANTON DBA THE BALLET AND MOVEMENT SCHOOL,

Appellant.

CHUNG, J. — Emily Anton 1 leased space for a ballet studio. When the

COVID-19 pandemic struck, she stopped making full rent payments in the amount

stated in the lease, and her landlord sued. Because her lease was commercial,

not residential, and because her landlord did not increase her rent during COVID-

19, the provisions in the Governor’s Proclamations that prohibit landlords from

collecting unpaid rent and increasing rent during the pandemic did not apply. We

affirm the trial court’s grant of summary judgment to her landlord for back rent,

fees, and costs per their lease.

1 Emily Anton married Jason Knott and changed her name to Emily Anton Knott in the fall

of 2021. Appellant self-identified as Emily Anton in trial court filings, so we use that name in this opinion to avoid confusion.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83249-2-I/2

FACTS

Emily Anton leased space for her Ballet and Movement School for $850 per

month from Surina Center on January 21, 2019. Early in 2020, the COVID-19

pandemic began. Governor Jay Inslee proclaimed a statewide moratorium on

residential evictions on March 18, 2020 to mitigate the spread of COVID-19 and

protect residents from homelessness. Proclamation 20-19. 2 The moratorium

ended on June 30, 2021. Proclamation 20-19.6. 3 The Legislature enacted three

statutes amending the Residential Landlord-Tenant Act to incorporate changes

introduced by the Proclamations. RCW 59.18.620, .625, and .630.

Independently of the Governor’s proclamations, Surina Center reduced all

its tenants’ rent by half for April and May 2020. Rent for all tenants returned to full

lease rates in June 2020. Anton, however, continued paying half rent, $425 per

month.

In June, Surina Center offered a compromise. If Anton would pay half,

$425 per month, and Jason Knott would contribute another $150 per month, then

Surina Center would defer $150 per month, and a payment plan for the total

amount deferred would begin January 1, 2021. Anton refused this offer, stating

“$425 a month is simply what I can do.” In November, 2020, Surina Center’s

attorney sent Anton a letter asking for back rent, communication, and offering early

2 Proclamation of Governor Jay Inslee, No. 20-19 (Wash. March 18, 2020) 20-19 - COVID-

19 Moratorium on Evictions (tmp).pdf (wa.gov) 3 Proclamation of Governor Jay Inslee, No. 20-19.6 (Wash. Mar. 18, 2021).

https://www.governor.wa.gov/sites/default/files/proclamations/proc_20-19.6.pdf

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termination. On November 22, 2020, Anton offered to vacate by December 15,

2020, provided she would owe no past due rent.

By December 3, 2020, a $3,825 outstanding balance accumulated. Surina

Center served the required three-day notice for eviction on December 8, 2020. On

December 21, 2020, Surina Center filed an unlawful detainer action seeking

recovery of past due rent of $3,825 and attorney and late fees. In a declaration

attached to the detainer motion, Surina Center’s property manager, Dina Melic,

declared “at no time have I observed anyone living in the Units. If I had . . . I would

have immediately addressed and corrected the situation because the Lease does

not allow for any residential use.”

Anton, representing herself, filed a response to the show cause order and

complaint. She claimed the eviction was illegal because she had informed Surina

Center that COVID had substantially and materially affected her ballet business

and Dina Melic knew that she, Jason Knott, 4 and another person were residing

part time on the premises. She asserted the Governor’s Proclamation as a

defense and counterclaimed for repairs needed, retaliation, and intentional

infliction of emotional distress by Surina Center’s attorney. She attached a photo

of her driver’s license showing the address of the leased premises.

The court conducted a show cause hearing that began on Friday, January

8, 2021, and continued on Monday, January 11. On Friday, Anton testified that as

4 Jason Knott’s initial declaration was stricken. The record contains a second Jason Knott

declaration given under penalty of perjury that is similar.

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of January 1, 2021, her residence was a boat where she had live-aboard status.

However, during 2020 she was waiting for that status, and she slept overnight at

the leased premises on nights when she could not stay on the boat. When asked

if there was any specific agreement with Surina Center to use the premises as a

residence, Anton testified “[n]o.” Anton also testified that she had “moved out of

the unit now.”

At the proceedings on the following Monday, Anton objected to the show

cause hearing with a declaration that she had voluntarily vacated the premises

over the weekend. She relinquished all right to possession of the premises.

Consequently, the trial court issued an order converting the action from an

unlawful detainer action, to which different procedures apply, to a civil action.

Surina Center’s claims for back rent, fees, and costs, as well as Anton’s defenses

and counterclaims for breach, intentional infliction of emotional distress, and

retaliation, remained outstanding and unresolved.

Surina Center filed a motion for judgment as a matter of law, which the

court denied. Surina Center subsequently moved for summary judgment, and the

trial court held a hearing on that motion on July 9, 2021. The court granted Surina

Center’s motion and awarded it $3,250 in net back rent (after deducting a security

deposit), $4,388 in attorney fees, and $312 in costs. 5 Anton appeals.

5 Judgment and Order Granting Motion for Summary Judgment dated Sept 17, 2021

attached to Anton’s notice of appeal.

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DISCUSSION

Anton assigns three errors: 6 the denial of her right to a jury trial; the trial

court’s decisions that the “Governor’s Orders against evictions did not apply”; and

how “none of the staff at the [trial court] realized I potentially had a disability and

may need accommodations.” Surina Center argues the trial court’s decisions on

January 8, January 11, and July 9, 2021, determining that the Governor’s Orders

against evictions did not apply, are outside the scope of review because there

were no written decisions on those days, and because Anton assigns error only to

the trial court’s final judgment.

Anton is a pro se litigant, and issues raised by pro se litigants may be

addressed despite inadequate briefing where the nature of the issue is apparent.

See State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn. App. 299, 310, 57 P.3d 300

(2002). Here, Anton’s Notice of Appeal stated, “Defendant wants the whole

decision reviewed,” and she attached the trial court’s “Judgment and Order

Granting Motion for Summary Judgment.” Her argument on summary judgment

included argument on the issue of whether the Governor’s Proclamation relating to

evictions applied. Thus, the nature of the issue is apparent and subject to review.

On appeal of an order granting summary judgment, we review de novo

whether “the pleadings, depositions, answers to interrogatories, and admissions

6 Although the court’s order on summary judgment also dismissed Anton’s counterclaims,

including retaliation, intentional infliction of emotional distress, and breach of the lease, Anton does not provide any argument on those issues on appeal. “We will not consider an inadequately briefed argument.” Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011).

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on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” CR 56(c); see Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192

P.3d 886 (2008). We view all facts and reasonable inferences in the light most

favorable to the nonmoving party. Elcon Constr., Inc. v. E. Wash. Univ., 174

Wn.2d 157, 164, 273 P.3d 965 (2012).

A. Right to a Jury Trial

Anton claims the trial court violated her right to a jury trial. Both our State

and federal constitutions guarantee the right to a jury trial in a civil suit. U.S. Const.

amend. VII; Wash. Const. art. I, § 21. But this right can be limited by procedural

rules.

In Washington, our Supreme Court inherently has power to adopt

procedural rules. Emwright v. King County, 96 Wn.2d 538, 543, 637 P.2d 656

(1981) (citing State v. Edwards, 94 Wn.2d 208, 212, 616 P.2d 620 (1980)). The

Legislature also delegated procedural rule-making power to the court. See e.g.,

RCW 2.04.190. Using this power, courts have adopted rules including the

Superior Court Civil Rules (CR). “These rules govern the procedure in the

superior court in all suits of a civil nature” and “shall be construed and

administered to secure the just, speedy, and inexpensive determination of every

action.” CR 1.

CR 38 preserves “inviolate” our State’s constitutional guarantee of a jury

trial and sets out a process by which a party “may demand a trial by jury of any

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issue triable of right.” CR 38(a), (b). This does not mean that every case must be

heard by a jury, however. CR 56 allows a party to file a motion for summary

judgment, and the court may grant summary judgment without a trial if the

evidence shows “there is no genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law.” The purpose of the summary

judgment procedure is to avoid an unnecessary trial when there is no genuine

issue of material fact that requires a jury to decide. Jacobsen v. State, 89 Wn.2d

104, 108, 569 P.2d 1152 (1977).

Here, the civil rules of procedure permit Surina Center to move for summary

judgment and test whether any triable issue exists. By applying CR 56 to grant

summary judgment against her, the court did not deny Anton’s right to a jury trial.

B. The Governor’s COVID-19 Proclamation on Evictions and Related Housing Practices

Anton argues the Governor’s Proclamation on Evictions and Related

Housing Practices applied and prohibited Surina Center from taking certain actions

against her, including seeking to evict her and collect unpaid rent and raising her

rent. Surina Center contends that her claims are moot because she voluntarily

vacated, and further, the Proclamation applies only to residential evictions, not

commercial evictions.

We agree with Surina Center that any claim regarding eviction is both moot

and, regardless, not properly before this court. Anton testified that she had

surrendered possession of the premises, and Surina Center agreed. Thus,

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because a writ of restitution was no longer being sought, the trial court converted

the lawsuit to a civil action. An issue is moot if the court cannot provide effective

relief. Herrera v. Villaneda, 3 Wn. App. 2d 483, 492, 416 P.3d 733 (2018). Anton

does not appeal the trial court’s determination that the eviction was no longer an

issue, or its ruling converting the action from an unlawful detainer. But the issues

of whether the Surina Center violated the Governor’s Proclamation by seeking to

collect on unpaid rent or by raising Anton’s rent remain.

We look to the relevant language in the Governor’s Proclamation. We

interpret gubernatorial proclamations in the same way as statutes. Dzaman v.

Gowman, 18 Wn. App. 2d 469, 478, 491 P.3d 1012 (2021) (citing State v. Zack, 2

Wn. App. 2d 667, 672 & n.6, 413 P.3d 65 (2018)). Statutory construction is a

question of law that this court reviews de novo. Lee v. State, 185 Wn.2d 608, 614,

374 P.3d 157 (2016). The primary goal of interpretation is to determine and give

effect to the drafter’s intent. Dzaman, 18 Wn. App. 2d at 478. If a statute’s

meaning is plain on its face, courts give effect to that plain meaning as an

expression of legislative intent. Quinault Indian Nation v. Imperium Terminal

Servs., LLC, 187 Wn.2d 460, 468, 387 P.3d 670 (2017).

1. Prohibition on Collection of Unpaid Rent

The Governor’s Proclamation prohibits landlords from “treating any unpaid

rent or other charges related to a dwelling or parcel of land occupied as a dwelling

as an enforceable debt or obligation that is owing or collectable, where such non-

payment was as a result of the COVID-19 outbreak and occurred on or after

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February 29, 2020.” Proclamation 20-19.5. This prohibition does not apply to

landlords who demonstrate they offered a reasonable re-payment plan that the

resident refused or failed to comply with. Id.

Because this prohibition applies only to “unpaid rent or other charges

related to a dwelling,” we must determine whether the leased premises was “a

dwelling.” The applicable definition of a “dwelling unit” is “a structure or that part of

a structure which is used as a home, residence, or sleeping place by one person

or by two or more persons maintaining a common household, including but not

limited to single-family residences and units of multiplexes, apartment buildings,

and mobile homes.” RCW 59.18.030(10). 7

Anton argues that the studio was a residential dwelling because she and

others stayed overnight at times, as they could not stay onboard her boat before

she had live-aboard status. But the lease states at the bottom of every page that it

is a “Lease for Commercial Space” and “shall be used for . . . [a] Ballet

Studio/Office business and activities thereto and for no other purpose without the

prior consent of [the] Landlord.” (Emphasis supplied.) Anton admitted the written

agreement was not modified to allow use as a residence. Thus, the record

establishes the allowed use was purely commercial, not residential. The

7 The Governor’s Proclamation states, “Terminology used in these prohibitions shall be

understood by reference to Washington law, including but not limited to RCW 49.60, RCW 59.12, RCW 59.18, and RCW 59.20.” Proclamation 20-19.5. RCW 59.18 is the Residential Landlord- Tenant Act (RLTA). RCW 59.18.010.

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protections in the Governor’s Proclamation from collection of unpaid rent do not

apply to Anton’s lease.

2. Prohibition on Increasing Rent

The Governor’s Proclamation prohibits increases in rent for certain

commercial properties, as well as for residential dwellings:

Except as provided in this paragraph, landlords, property owners, and property managers are prohibited from increasing, or threatening to increase, the rate of rent for any dwelling or parcel of land occupied as a dwelling . . . [and] this prohibition also applies to commercial rental property if the commercial tenant has been materially impacted by the [sic] COVID-19, whether personally impacted and is unable to work or whether the business itself was deemed non-essential pursuant to Proclamation 20-25 or otherwise lost staff or customers due to the COVID-19 outbreak. This prohibition does not apply to commercial rental property if rent increases were included in an existing lease agreement that was executed prior to February 29, 2020 (pre-COVID-19 state of emergency).

Proclamation 20-19.5. 8

Here, Anton argues that ending Surina Center’s voluntary rent reduction

constitutes an increase in rent. The record shows the lease, signed on January

21, 2019, set the rent at $850.01 per month, may not be modified except in writing,

prohibits waiver except in writing, and specifies the acceptance of rent after default

does not constitute waiver. Surina Center voluntarily reduced rent by half for all its

tenants for April and May 2020. The record also shows the reduction was for

those two months only, and regular rent resumed in June 2020. There was no

8 Surina Center does not dispute that Anton was a “commercial tenant [who] has been

materially impacted by the [sic] COVID-19.”

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mutual agreement to modify the original lease from the stated rent of $850 per

month. Though Surina Center voluntarily reduced the rent temporarily, it did not

alter the lease agreement otherwise. Thus, Anton does not raise a genuine issue

of material fact that Surina Center increased her rent during COVID-19. 9

Therefore, the trial court properly granted summary judgment in favor of

Surina Center’s claim for back rent, attorney fees, and costs according to the

parties’ lease. 10

C. Claim Regarding Accommodations for Disability

Anton assigns error because “none of the staff at the San Juan County

Court realized that I potentially had a disability and may need accommodations.”

She quotes an Access to Justice Board publication titled “Ensuring Equal Access

for People with Disabilities, A Guide for Washington Administrative Proceedings.”

She compares its suggestions with her interactions with the trial court and,

because the publication mentions the Americans with Disabilities Act (ADA), she

appears to suggest the trial court violated the ADA by not following the

publication’s suggestions.

“As a general rule, appellate courts will not consider issues raised for the

first time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251

9 Anton also voluntarily abandoned this lease, thus relinquishing her claim to be operating

a ballet business affected by COVID-19 on the premises. 10 Anton did not challenge the trial court’s fee award, and thus, we do not consider it on

appeal. Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (“We will not consider an inadequately briefed argument.”). Because we hold that the underlying summary judgment order in Surina Center’s favor was proper, we do not disturb the fee award.

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(1995). Pro se litigants are “bound by the same rules of procedure and

substantive law as attorneys.” Westberg v. All-Purpose Structures Inc., 86 Wn.

App. 405, 411, 936 P.2d 1175 (1997).

Here, the issue Anton suggests was never before the trial court; therefore,

we decline to review it on appeal because the trial court made no ruling or decision

for this court to review. Anton argues that statements she made about not

understanding, for example, the significance of her commercial lease, clearly

indicated a cognitive disability. She argues answers she gave the court when it

asked if she had any questions, such as “no, nothing,” are evidence of “false

answers” characteristic of litigants with cognitive impairments. She argues the

court “interrupted me multiple times and got frustrated with me” when the court

probed for specific evidence to create a genuine issue of material fact. Reviewing

the record where Anton suggests, we recognize the many challenges faced by a

pro se litigant. Nonetheless, Anton never directly raised the need for

accommodation to the trial court, much less requested any specific

accommodation. As there is no decision regarding accommodation for this court

to review, we decline to consider this claim.

We affirm.

WE CONCUR:

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