Doheny Homes, Respondent V. Lincoln Lee, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ZOinAUGII 	Aii 10= 27DOHENY HOMES, LLC, a
Washington limited liability company,
Respondents,
LINCOLN WARREN LEE, II and
CARLENE TUDOR LEE, husband and
wife, and the marital community
comprised thereof,
Appellants.
No. 69798-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: August 11, 2014
Spearman, C.J. — This appeal involves a landlord-tenant dispute between
Brian and Trina Doheny and Lincoln Lee and Carlene Tudor-Lee.1 The trial court
concluded after a bench trial that the Lees, who lived in a townhome owned by
the Dohenys, were liable for breaching the lease agreement when they moved
out. The Lees appeal. We conclude that substantial evidence supports the trial
court's findings of fact, and that the findings as a whole support the court's
conclusions of law that (1) Lincoln Lee did not properly terminate the lease
agreement under RCW 59.18.090 and (2) he was liable for breach of the lease
agreement. With respect to the damages award, we reject the Lees' arguments
that (1) the Dohenys' failure to mitigate their damages meant they were not
entitled to any damages and (2) the damages award should not have accounted
for those months that had not passed at the time of trial. We agree with the Lees,
however, that (1) Lincoln was entitled to the return of his deposit because the
Dohenys did not timely mail the statement regarding the deposit and (2) Carlene
1 The Lees are a married couple, but were not married until after the events that gave rise
to the lawsuit underlying this appeal. The Dohenys are a married couple.

No. 69798-6-1/2
could not be held liable for damages for breach of the lease agreement where
she was not a party to the agreement and was not married to Lincoln until after
the relevant events. We affirm in part, reverse in part, and remand.
FACTS
Lincoln Lee and Trina Doheny had a son together in 1995. Trina2 later
married Brian Doheny. In August 2006, in an effort to allow Lincoln to live close
to his son, the Dohenys agreed to rent to him a townhome ("the Property") near
their own residence. Lincoln and Doheny Homes, LLC3 executed a lease
agreement under which Lincoln agreed to rent the Property for $1,800 per month
until July 31, 2014. Lincoln also agreed to prepay the last month's rent. The lease
agreement listed Doheny Homes' address as "600 - 108th Ave NE, Ste. 536,
Bellevue, WA 98004." Exhibit (Ex.) 14. This was the office address of Trina's
company, Extend Networks. Lincoln delivered his monthly rental payments to
that address.
In August 2009, Lincoln became engaged to Carlene Tudor-Lee. Carlene
moved into the Property in January 2010 but was never added to the lease. That
month, Lincoln asked the Dohenys to be relieved from his lease obligation
because he and Carlene wanted to move into a larger home to accommodate her
two children from a former marriage. The Dohenys did not agree, though the
2 For clarity, the parties' first names will be used when referring to them in an individual
capacity. "The Lees" refers to Lincoln Lee and Carlene Tudor-Lee. "The Dohenys" refers to Brian
Doheny and Trina Doheny.
3 Doheny Homes, LLC, a property management company and rental depository, was the
landlord of the Property and is the respondent on appeal. Doheny Homes is owned by the
Dohenys. For simplicity, we will refer to the Dohenys as the landlords of the Property.

No. 69798-6-1/3
parties dispute whether the Dohenys agreed to allow Lincoln to sublet the
Property.4 By August 2010, the relationship between Lincoln and Trina had
soured. By December, Carlene was searching for available rental properties. On
December 21, she contacted Columbia Homes LLC to inquire about a townhome
for rent.
On December 26, the Lees woke up to a cold home and determined that
the radiant heating system had failed. The gas fireplace also did not work. That
same day, Lincoln signed a lease agreement for the Columbia Homes
townhome.5 However, the Lees did not attempt to advise the Dohenys of the
problem with the heating system until the next day.
On December 27, Lincoln mailed a "Notice Requesting Repairs" to the
Dohenys via certified mail to Trina's office. Ex. 3. The letter stated, "The radiant
heat system is not working and the unit has no heat" and "The gas fireplace will
not ignite and is inoperable." Ex. 3. Previously, Lincoln had not sent the Dohenys
notices in the mail when repairs were needed, as he lived across the street from
the Dohenys.
Trina received the notice requesting repairs at her office the next day,
December 28, at 12:43 p.m. That day, Brian went to the Property to inspect the
heating system. He knocked on the door but no one answered. He could not
enter the Property because the locks had been changed. Early the next day,
4The Dohenys claim they agreed to allow Lincoln to sublet the Property, while the Lees
claim the Dohenys refused. This issue was not addressed by the trial court's findings of fact.
5 Carlene had poor credit and did not sign the lease. The Lees maintain that the new
lease agreement would not have been binding until itwas signed by the landlord, who had agreed
to give them a three day grace period to back out.

No. 69798-6-1/4
December 29, Brian returned and knocked on the door. Again no one answered.
The Dohenys sent a text message to the Lees that day, requesting access to the
Property to inspect the heating issue. That afternoon, Lincoln called Brian and
they agreed that Brian would come to the Property that evening. Brian inspected
the heating issue that evening.
The next day, December 30, the Lees mailed the Dohenys a "Notice of
Intent to Vacate Because of Unmade Repairs" via certified mail, again to Trina's
office. Ex. 4. Trina rejected delivery, and the Dohenys did not receive or read the
letter. That day, the Dohenys made an appointment with Brennan Heating for
January 4, 2011, which was the first available appointment after the holidays.
Also that day, Lincoln sent a text message to Brian asking when the heating
system would be fixed. Brian responded that Brennan Heating would inspect the
heating system on January 4, 2011.
The Lees moved out of the Property the next day, December 31. On
January 4, 2011, the Dohenys learned that the Lees had moved out when Brian
entered the Property to allow Brennan Heating inside. Brennan Heating
determined that it had to order a part before it could fix the heating system. On
January 6, the Dohenys mailed a letter to Lincoln seeking rent for January and
late fees. The heating system was repaired on January 11. On January 18, the
Dohenys mailed to Lincoln's work address6 a "Fourteen (14) Day Notice in
6 The Lees did not leave a forwarding address when they moved out.

No. 69798-6-1/5
Regard to Deposit" explaining their basis for retaining the last month's deposit.
Ex. 30.
On March 2, Lincoln filed a small claims action against the Dohenys to
recover his deposit. On April 14, the Dohenys, through Doheny Homes, filed a
complaint against the Lees in superior court for breach of lease. At the hearing
on the small claims action, the Dohenys informed the court that the small claims
issue would be resolved in superior court. The Lees counterclaimed for
constructive eviction and violations of the Washington Residential Landlord-
Tenant Act of 1973 (RLTA), chapter 59.18 RCW.
The Dohenys did not list the Property for rent until May 2011. At that time,
they listed the Property only on Craigslist, an online listing service. They did not
lower the rental rate until July 2012 and did not add photographs until August
2012. The Property was rented for $1,600 per month in September 2012,
approximately 20 months after the Lees had vacated the premises.
A bench trial was held in November 2012. The trial court issued an oral
ruling on November 9, concluding that the Lees had not acted in good faith in
terminating the lease7 and that the Dohenys had acted in good faith and within a
reasonable time in responding to the notice requesting repairs. The court
concluded that the Dohenys complied with RCW 59.18.060 and that the Lees
were liable for breaching the lease agreement. The court concluded, however,
7The trial court concluded, among other things, that "[i]t was significant to the court that
the Lees initiated a lease agreement to reside at the new property while continuing to interact with
the Dohenys concerning the repair of the heating issue; this caused the court concern in that it
suggested there was a design and intention on the part of the Lees to break the lease agreement
and move out of the property." Clerk's Papers (CP) 131.

No. 69798-6-1/6
that the Dohenys did not make a reasonable effort to mitigate their damages and
rerent the Property. The court awarded the Dohenys damages equal to four
months of rental payments under the lease agreement, plus the difference in the
monthly rental amount between their lease with Lincoln and their lease with the
new tenant for a period of 44 months, which was the amount of time remaining
under the lease. The trial court rejected the Lees' claim for Lincoln's deposit,
concluding that the Dohenys had sent a statement within 14 days of learning of
the abandonment. The court entered written findings of fact and conclusions of
law; an order granting the Dohenys' motion for fees and costs; and a judgment in
the amount of $58,724.44.8 The Lees appeal.9
DISCUSSION
"When a trial court has weighed the evidence in a bench trial, appellate
review is limited to determining whether substantial evidence supports its findings
of fact and, if so, whether the findings support the trial court's conclusions of law.
Substantial evidence exists when there is a sufficient quantity of evidence to
persuade a fair-minded, rational person that a finding is true." Heqwine v.
Lonqview Fibre Co.. Inc., 132 Wn. App. 546, 555-56, 132 P.3d 789 (2006)
(citations omitted), affd, 162 Wn.2d 340, 172 P.3d 688 (2007). Unchallenged
8 The amount of the judgment was comprised of $16,000 in damages, $40,000 in
attorney fees, and $2,724.44 in statutory costs.
9On May 10, 2013, the Lees filed for bankruptcy. On July 17, 2013, the Lees filed their
notice of bankruptcy, and the commissioner stayed this proceeding on July 22, 2013. On August
19, 2013, the Dohenys received notification from the bankruptcy court that the Lees were granted
a discharge. On September 24, 2013, the bankruptcy court directed creditors (including the
Dohenys) to file a proofof claim, which the Dohenys did. As of January 2014, the bankruptcy
case remained open for the sole purpose of this appeal. On January 16, 2014, the stay in this
court was lifted.

No. 69798-6-1/7
findings are verities on appeal. Cowiche Canyon Conservancy v. Boslev. 118
Wn.2d 801, 808, 828 P.2d 549 (1992). Conclusions of law are reviewed de novo.
Heqwine. 132 Wn. App. at 556.
The Lees assign error to numerous findings of fact and conclusions of law,
as well as the judgment. They contend the trial court erred in (1) concluding that
they were liable for breaching the lease agreement; (2) awarding the Dohenys
damages; (3) rejecting their claim for Lincoln's deposit; and (4) concluding that
Carlene was liable for any damages. We address these contentions in turn.
Dohenys' Claim for Breach of Lease
i. 	Liability
This case is governed by the RLTA and the lease agreement between
Lincoln and Doheny Homes. The RLTA provisions of particular relevance are
RCW 59.18.020, .060, .070, and .090. RCW 59.18.060 pertains to a landlord's
duty to maintain habitable premises, providing, in relevant part, that "[t]he
landlord will at all times during the tenancy keep the premises fit for human
habitation, and shall in particular: ... (8) Maintain all electrical, plumbing,
heating, and other facilities and appliances supplied by him or her in reasonably
good working order; ...(11) Provide facilities adequate to supply heat and water
and hot water as reasonably required by the tenant." RCW 59.18.070 requires a
landlord to timely remedy defective conditions, providing, in relevant part:
If at any time during the tenancy the landlord fails to carry out the
duties required by RCW 59.18.060 or by the rental agreement, the
tenant may, in addition to pursuit of remedies otherwise provided
him or her by law, deliver written notice to the person designated in

No. 69798-6-1/8
RCW 59.18.060(14), or to the person who collects the rent, which
notice shall specify the premises involved, the name of the owner, if
known, and the nature of the defective condition. The landlord shall
commence remedial action after receipt of such notice by the
tenant as soon as possible but not later than the following time
periods, except where circumstances are beyond the landlord's
control:
(1) Not more than twenty-four hours, where the defective
condition deprives the tenant of hot or cold water, heat, or
electricity, or is imminently hazardous to life;
In each instance the burden shall be on the landlord to see
that remedial work under this section is completed promptly. If
completion is delayed due to circumstances beyond the landlord's
control, including the unavailability of financing, the landlord shall
remedy the defective condition as soon as possible.
Under RCW 59.18.090,
If, after receipt of written notice, and expiration of the applicable
period of time, as provided in RCW 59.18.070, the landlord fails to
remedy the defective condition within a reasonable time, the tenant
may:
(1) Terminate the rental agreement and quit the premises
upon written notice to the landlord without further obligation under
the rental agreement, in which case he or she shall be discharged
from payment of rent for any period following the quitting date, and
shall be entitled to a pro rata refund of any prepaid rent, and shall
receive a full and specific statement of the basis for retaining any of
the deposit together with any refund due in accordance with RCW
59.18.280.
RCW 59.18.090(1). Lastly, RCW 59.18.020 provides that "[ejvery duty under this
chapter and every act which must be performed as a condition precedent to the
exercise of a right or remedy under this chapter imposes an obligation of good
faith in its performance or enforcement."10
10 Thus, the Lees are incorrect in asserting that the trial court impermissibly considered
the relative good faith of the parties and the reasonableness of their actions.
8

No. 69798-6-1/9
The Lees' appeal is based primarily on their argument that the Dohenys
failed to comply with RCW 59.18.060 and .070 because they did not commence
remedial action within 24 hours of receiving the notice requesting repairs. The
Lees claim the evidence showed that the Dohenys did not even come to the
Property until after the 24 hour period had passed. They contend such failure
permitted them to terminate the lease under RCW 59.18.090.
We reject these arguments. The trial court concluded that the Dohenys'
ability to commence repairs to the heating system was delayed by circumstances
beyond their control under RCW 59.18.070. The court's conclusion was
supported by its findings of fact that (1) Brian attempted to inspect the heating
system the same day the Dohenys received notice of the issue but was
prevented from doing so because the Lees had changed the locks; (2) Brian
made another attempt to inspect the heating issue early in the day on December
29, 2010 but no one answered the door; (3) Brian sent a text message to Lincoln
on December 29 to request access to the Property; and (4) Brian inspected the
heating issue on the evening of December 29. There was substantial evidence,
in the form of Brian and Trina's testimony, to support these findings.11 Thus, the
11 This court views the evidence in the light most favorable to the prevailing party below
and defers to the trial court regarding witness credibility and conflicting testimony. Heqwine, 132
Wn. App. at 556. We thus reject the Lees' contention that the trial court erred in concluding that
the Dohenys' ability to access the Property was delayed by Lincoln's changing the locks without
the Dohenys' knowledge or permission. The Lees point out that Lincoln testified that he had
changed the lock with Trina's permission after the keys to the former lock were lost and that he
had provided Trina with a copy of the new key. But Brian testified that Lincoln had not asked for
permission to change the locks. We likewise reject the Lees' contention that Brian's testimony
that he attempted to access the Property on December 28, 2010 is contravened by "the balance
of the record" because Carlene and her son testified that they were present at the Property at the
time and that nobody came by.

No. 69798-6-1/10
fact that the Dohenys did not commence repairs within 24 hours did not
automatically permit the Lees to terminate the lease agreement without further
obligation.
Where the completion of repairs is delayed due to circumstances beyond
the landlord's control, RCW 59.18.070 requires the landlord to remedy the
defective condition "as soon as possible." Here, the trial court concluded that the
Dohenys met this requirement where they (1) made a good-faith effort to respond
to, inspect, and repair the heating issue once they became aware of it; (2)
responded to the notice requesting repairs within a reasonable time; and (3)
repaired the heating issue in good faith and within a reasonable time. These
conclusions are supported by the trial court's unchallenged findings that (1) on
December 30, 2010, less than one day after Brian inspected the heating issue in
the evening of December 29, the Dohenys made an appointment with Brennan
Heating for January 4, 2011; (2) the Lees moved out on December 31, 2010; (3)
Brennan Heating's inspection on January 4 revealed that a part had to be
ordered before the repair could be made; and (4) Brennan Heating fixed the
heating issue on January 11, 2011.
RCW 59.18.090 permits a tenant to terminate a rental agreement and
move out "[i]f, after receipt of written notice, and expiration of the applicable
period of time, as provided in RCW 59.18.070, the landlord fails to remedy the
defective condition within a reasonable time." The Lees contend they properly
10

No. 69798-6-1/11
terminated the lease agreement because the Dohenys failed to commence
remedial action within 24 hours and failed to promptly remedy the heating issue.
Again, we reject this argument. Given the trial court's findings of fact and
conclusions of law, the Lees did not give the Dohenys a "reasonable time" under
RCW 59.18.090 to remedy the heating issue before they moved out. Thus, a
statutory prerequisite for terminating the lease agreement was not met. As the
trial court found, the Dohenys received notice of the heating issue on December
28, 2010 and could not access the Property until the evening of December 29.
The Lees sent the notice to vacate less than one day after Brian was able to
inspect the heating issue and moved out less than two days after he inspected
the heating issue. These findings, along with the trial court's findings in support of
its conclusion that the Dohenys repaired the heating system in good faith and
within a reasonable time, support the court's conclusion that the Lees did not
properly terminate the lease agreement under RCW 59.18.090.
The Lees also contend that the trial court erroneously concluded that,
because the Lees did not indicate the condition was an emergency and did not
demand that the heat be fixed more quickly, the Dohenys did not have a duty to
commence remedial action within 24 hours. But the trial court did not make such
a conclusion. Rather, the court's findings that the notice requesting repairs did
not (1) indicate the lack of heat was a threat to the health or safety of the
occupants, (2) indicate the heating issue was an emergency, or (3) request
heating devices or other accommodations tended to support the court's
11

No. 69798-6-1/12
conclusions as to (1) the reasonableness of the Dohenys' response, (2) whether
the Dohenys' response was made in good faith under the circumstances, and (3)
whether the Dohenys met RCW 59.18.060(11), which requires landlords to
"[pjrovide facilities adequate to supply heat."
Finally, the Lees contend that the trial court erred in concluding that their
method of notifying the Dohenys of the heating issue was "significantly different"
than the past practice of communication between the parties. They contend the
conclusion was erroneous because the notice requesting repairs was sent as
required by the lease and the RLTA and because Lincoln delivered rental
payments to Trina's office address. While it is undisputed that the Lees complied
with the RLTA and the lease agreement in notifying the Dohenys, the trial court
did not conclude that the notice did not comply with the RLTA or the lease
agreement. Rather, the court concluded that the Lees did not act reasonably in
notifying the Dohenys of the heating issue where the method of communication
was significantly different than the past practice of communication between the
parties. This related to the court's conclusion that the Lees' means of notification
was for the purpose of meeting their minimal requirements under the law rather
than remedying any risk of harm to the Property's occupants. Furthermore, while
the notice requesting repairs was sent to the same address to which Lincoln sent
rental payments, the trial court's finding that the means of notice regarding the
heating issue was not consistent with the past practice of communication
between the parties was supported by the evidence that Lincoln had previously
12

No. 69798-6-1/13
communicated the need to repair a defect verbally and that the Dohenys lived
across the street from him. In any event, the trial court's conclusion regarding the
method of communication was not germane to its conclusions that (1) the
Dohenys, once they received notice of the heating issue, responded within a
reasonable time and (2) the Lees did not properly terminate the lease agreement
under RCW 59.18.090.
/'/'. 	Damages
The Lees also contend that the trial court erred in awarding damages.12
They first contend that the court, while properly concluding that the Dohenys
failed to mitigate their damages, erroneously concluded that the Dohenys were
entitled to any damages. The Dohenys respond that the trial court did consider
their failure to mitigate in calculating damages. The record supports the Dohenys'
contention.
This court reviews a trial court's decision to award damages for an abuse
of discretion. Banuelosv. TSAWash.. Inc.. 134 Wn. App. 607, 613, 141 P.3d 652
(2006). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79
Wn.2d 12, 26, 482 P.2d 775 (1971).
12 We reject the Dohenys' contention that the Lees improperly object to the amount of
damages for the first time on appeal because they failed to raise their arguments below; did not
object to the proposed findings of fact and conclusions of law, and stipulated to the judgment. The
Lees made their arguments objecting to the damages award in their trial brief and during closing
argument. The trial court made an oral ruling—in which it rejected the Lees' arguments—and
requested the parties to draft proposed findings of fact and conclusions of law consistent with its
ruling. The findings of fact, conclusions of law, and stipulated judgment were merely consistent
with the trial court's ruling. The Dohenys cite no authority for the proposition that the Lees have
waived their arguments under these circumstances.
13

No. 69798-6-1/14
RCW 59.18.310 provides, in relevant part:
If the tenant defaults in the payment of rent and reasonably
indicates by words or actions the intention not to resume tenancy,
the tenant shall be liable for the following for such abandonment:
PROVIDED, That upon learning of such abandonment of the
premises the landlord shall make a reasonable effort to mitigate the
damages resulting from such abandonment:
(2) When the tenancy is for a term greater than month-to-
month, the tenant shall be liable for the lesser of the following:
(a) The entire rent due for the remainder of the term; or
(b) All rent accrued during the period reasonably necessary
to rerent the premises at a fair rental, plus the difference between
such fair rental and the rent agreed to in the prior agreement, plus
actual costs incurred by the landlord in rerenting the premises
together with statutory court costs and reasonable attorneys' fees.
Under the statute, a landlord must mitigate damages. "The doctrine of avoidable
consequences, also known as mitigation of damages, prevents recovery for
damages the injured party could have avoided through reasonable efforts." Cobb
v. Snohomish County. 86 Wn. App. 223, 230, 935 P.2d 1384 (1997).
Here, the trial court awarded damages under RCW 59.18.310(2)(b).13 The
court evidently found that a "period reasonably necessary to rerent the premises
13 In its oral ruling, the court stated:
The plaintiffs did not make a reasonable effort to obtain new tenants to mitigate
damages. The manner of advertising was not reasonable initially, the pricing was
not adjusted, and the—I—and so that in crafting a decision in this particular case
I do find in favor of the plaintiffs in this particular case.
But my belief is that—and from my knowledge and from the testimony-
is that the damages in this case would be payment of the full amount of rent for a
period that would indicate four months of rent. And for the remaining amount of
time left under the lease it would be the difference between the current lease and
the lease that existed initially, which I understand is a $200 per month difference.
14

No. 69798-6-1/15
at a fair rental," RCW 59.18.310, was four months, which was significantly less
than the period it in fact took the Dohenys to rerent the Property.14 Thus, the
court took the Dohenys' failure to mitigate into consideration and did not award
damages for the entire period it took the Dohenys to find renters. The trial court
also awarded $200 per month for each remaining month of the lease term, to
account for the difference between the rent under the lease with Lincoln and the
rent under the new lease. The trial court's calculation of damages was consistent
with the statute and was not an abuse of discretion.
The Lees also contend that, because there was no acceleration clause in
the lease agreement, the damages award should not have included $200 per
month for those months that had not passed at the time of trial. They cite Myers
v. W. Farmers Ass'n, 75 Wn.2d 133, 449 P.2d 104 (1969) in support. But Myers
did not analyze damages calculated under RCW 59.18.310 and is inapposite.
Lees' Counterclaim for Return of Deposit
The Lees contend that the Dohenys did not mail the statement regarding
the deposit within the time limit specified in RCW 59.18.280 and that Lincoln was
therefore entitled to the return of his deposit.15 We agree.
RCW 59.18.280 provides, in relevant part:
Within fourteen days after the termination of the rental agreement
and vacation of the premises or, if the tenant abandons the
premises as defined in RCW 59.18.310, within fourteen days after
the landlord learns of the abandonment, the landlord shall give a
14 The Dohenys listed the Property in May 2011 and did not find renters until September
2012, approximately 16 months later.
15 The Dohenys do not dispute the Lees' assertion that Lincoln paid $1,900 toward the
last month's rent.
15

No. 69798-6-1/16
full and specific statement of the basis for retaining any of the
deposit together with the payment of any refund due the tenant
under the terms and conditions of the rental agreement.. . .
The notice shall be delivered to the tenant personally or by mail to
his or her last known address. If the landlord fails to give such
statement together with any refund due the tenant within the time
limits specified above he or she shall be liable to the tenant for the
full amount of the deposit.
Here, the trial court found that the Dohenys never received the notice to vacate
and that they did not learn of the Lees' abandonment until January 4, 2011.16 The
court also found that the Dohenys mailed the statement of deposit on January
18, 2011. The court then concluded that the Dohenys sent the statement of
deposit within 14 days of learning of the Lees' abandonment, in accordance with
RCW 59.18.280.
We disagree with the trial court's approach and reverse as to the Lees'
counterclaim for Lincoln's deposit. While the Dohenys may not have received
actual notice of the Lees' abandonment until January 4, 2011, the evidence
showed they received constructive notice on December 31, 2010. The lease
agreement provided, "Any notice which either party may or is required to give,
may be given by mailing the same, by certified mail... to [the Dohenys] at the
address shown below." Ex. 1, U 28. The only address for the Dohenys in the
lease agreement was Trina's office address. The Lees mailed the notice to
vacate to that address on December 30, 2010, and the Dohenys do not dispute
16 The trial court made an unchallenged finding that "[Brian] noticed the Lees had vacated
the property on January 4, 2011, when he arrived at the property to let Brennan Heating inside to
inspect the heating issue." The court's finding that the Dohenys never received the notice of intent
to vacate was supported by substantial evidence because the Dohenys testified that they did not
receive it.
16

No. 69798-6-1/17
the Lees' contention that Trina rejected the mailing. Moreover, Trina had
accepted delivery of certified mail—the Lees' notice requesting repairs—at that
address only several days before the Lees sent the notice to vacate. Under these
circumstances, the Dohenys may not rely on the date that they actually learned
of the abandonment; instead, constructive notice will be imputed to them. The
Dohenys' mailing of the statement of deposit on January 18, 2011 was not within
14 days of December 31, 2010, the expected delivery date of the notice to
vacate.17 Lincoln was thus entitled to the return of his deposit.
Carlene's Liability for Damages
Finally, the Lees contend the trial court erred in concluding that Carlene
was liable for any damages where she was not a party to the lease agreement
and was not married to Lincoln until after the events in question.18 They contend
Carlene is not liable for any debt or liability incurred by Lincoln prior to their
marriage, citing RCW 26.16.200. The Dohenys respond that Carlene is liable
because she benefited from the lease agreement when she lived at the Property
and because she attached herself to Lincoln's counterclaims and became a party
to the litigation. They cite deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835
(1980) in support of their position.
We agree with the Lees. RCW 26.16.200 states, in relevant part:
Neither person in a marriage or state registered domestic
partnership is liable for the debts or liabilities of the other incurred
17 The Dohenys do not dispute the Lees' contention that December 31, 2010 was the
expected delivery date for the notice to vacate.
18 The trial concluded that "Ttlhe Lees are liable to the Dohenys for breach of the lease
agreement." CP 131 (emphasis added).
17

No. 69798-6-1/18
before marriage or state registered domestic partnership, nor for
the separate debts of each other, nor is the rent or income of the
separate property of either liable for the separate debts of the other:
PROVIDED, That the earnings and accumulations of the spouse or
domestic partner shall be available to the legal process of creditors
for the satisfaction of debts incurred by such spouse or domestic
partner prior to the marriage or the state registered domestic
partnership. . . .
Here, whether Lincoln's breach of the lease agreement was a "debt" or a
"liability" under RCW 26.16.200, it was undisputedly incurred before the Lees
were married. Nor does deElche support the Dohenys' position. In deElche, the
couple was married when the husband committed a tort and when the judgment
against the husband was entered. 95 Wn.2d at 238. The court held that, where
the husband's tort was not in the management of community business or for the
community's benefit, the husband's separate property would be primarily liable
but that if such separate property was insufficient, the plaintiff was entitled to
recover from the husband's half interest in community property. ]d. at 246. That
case did not address the circumstances presented here.
Where Carlene was not married to Lincoln during the events in question
and was not a party to the lease agreement, she was, at most, a month-to-month
tenant. The Dohenys do not dispute the Lees' contentions that, if tenancy was
month-to-month, Carlene terminated her tenancy at the end of December 2010
and the rent was prepaid by Lincoln through January 2011.
18

No. 69798-6-1/19
Attorney's Fees on Appeal
Both parties request attorney's fees on appeal, citing an attorney's fee
provision in the lease agreement.19 Additionally, the Lees cite RCW 59.18.280
(entitling the prevailing party in an action to recover a deposit to recover costs
and reasonable attorney's fees) and RCW 4.84.010 (allowing recovery of certain
costs to the prevailing party). We conclude that there is no substantially
prevailing party on appeal and do not award fees to either party.
Affirmed in part, reversed in part, and remanded for further proceedings.
WE CONCUR:
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19 The attorney's fee provision states, "In any legal action to enforce the terms hereof or
relating to the premises, regardless of the outcome, the Owner or agent shall be entitled to all
costs incurred in connection with such action, including a reasonable attorney's fee." Ex. 1TJ27.
19