Ed L. Christensen v. Richard A. Ellsworth

Petitioner, Ed L. Christensen, the lessor, seeks review of a

Court of Appeals ruling that affirmed the trial court's dismissal of an unlawful

detainer action brought against Respondent, Richard A. Ellsworth, the lessee. The

trial court dismissed the unlawful detainer action because it found Christensen did

not give Ellsworth the three day notice required by RCW 59.12.030(3). Whether

the statutory notice was timely given depends on whether the time computation rule,

CR 6(a), applies.

We hold that CR 6(a) does not apply to the calculation of the three day notice

period required by RCW 59.12.030(3). We reverse the Court of Appeals and

remand to the trial court for further proceedings consistent with this opinion.

I. STATEMENT OF THE CASE

Ellsworth leased an apartment from Christensen for the term of May 20, 1998

to July 31, 1999. Ellsworth failed to make a rental payment due on July 2, 1998.
On Friday, July 3, 1998,1 Christensen served Ellsworth with a notice to pay the rent

or vacate the premises within four days (before Wednesday, July 8). The notice

was posted on the apartment and sent by both certified and regular mail. Ellsworth

failed to respond to the notice.

On Wednesday, July 8, 1998, Christensen served Ellsworth with a summons

and complaint for unlawful detainer. Because Ellsworth did not respond or appear,

the court entered an order of default and writ of restitution.

Six years later, Christensen sought a default judgment based upon the earlier

order of default. Ellsworth filed a motion to vacate the order of default pursuant to

CR 60(b)(5). Ellsworth argues that the unlawful detainer action was prematurely

commenced and, consequently, the court lacked subject matter jurisdiction. The

trial court agreed that it lacked subject matter jurisdiction over the unlawful detainer

action because Christensen failed to give sufficient notice under RCW 59.12.030(3)

and dismissed the case with prejudice. The Court of Appeals affirmed. Christensen

v. Ellsworth, 134 Wn. App. 295, 139 P.3d 379 (2006). We granted review.

Christensen v. Ellsworth, 160 Wn.2d 1010, 161 P.3d 1026 (2007).

II. ISSUE

Does the time computation rule of CR 6(a), which calculates time periods of

less than seven days by excluding weekends and holidays, apply to RCW

59.12.030(3) (three day notice period preceding the filing of an unlawful detainer

action)?

III. ANALYSIS

Whether the unlawful detainer notice requirement is calculated in accordance

with the timing provisions of the civil rules is a matter of statutory interpretation to

be reviewed de novo. See Troxell v. Rainier Pub. Sch. Dist. No. 307, 154 Wn.2d

345, 350, 111 P.3d 1173 (2005).

Under the Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, if a

tenant breaches a rental agreement by failing to make timely rental payments, a

landlord may commence an unlawful detainer action. RCW 59.18.130, .180(1). An

unlawful detainer action is a statutorily created proceeding that provides an

expedited method of resolving the right to possession of property. MacRae v. Way,

64 Wn.2d 544, 546, 392 P.2d 827 (1964). The term "unlawful detainer" is

statutorily defined.

A tenant of real property for a term less than life is guilty of unlawful
detainer . . . .

. . . .

(3) When he or she continues in possession in person or by
subtenant after a default in the payment of rent, and after notice in
writing requiring in the alternative the payment of the rent or the
surrender of the detained premises, served (in manner in RCW
59.12.040 provided) in behalf of the person entitled to the rent upon
the person owing it, has remained uncomplied with for the period of
three days after service thereof. The notice may be served at any time
after the rent becomes due.

RCW 59.12.030. The purpose of the notice is to provide the tenant with "at least

one opportunity to correct a breach before forfeiture of a lease under the accelerated

restitution provisions of RCW 59.12." Hous. Auth. v. Terry, 114 Wn.2d 558, 569,

789 P.2d 745 (1990) (footnote omitted).

A notice to pay or vacate must be served in accordance with RCW

59.12.040. RCW 59.12.030(3). If the tenant (or a person of suitable age and

discretion) is unavailable for personal service, service may be effectuated by

"affixing a copy of the notice in a conspicuous place on the premises unlawfully

held" and sending an additional "copy through the mail addressed to the tenant, or

unlawful occupant, at the place where the premises unlawfully held are situated."

RCW 59.12.040(3). Service by mail adds an additional day to the notice

requirement; thus, a tenant is guilty of unlawful detainer four days after the notice is

properly posted and mailed. See RCW 59.12.040, .030(3). Once a tenant is guilty

of unlawful detainer under RCW 59.12.030(3), a landlord may commence an

unlawful detainer action by service and filing of the statutory summons and

complaint. See former RCW 59.12.070 (1927), amended by Laws of 2005, ch. 130,

§ 1; RCW 59.12.080.

Proper statutory notice under RCW 59.12.030 is a "'jurisdictional condition

precedent'" to the commencement of an unlawful detainer action. Hous. Auth., 114

Wn.2d at 564-65 (quoting Sowers v. Lewis, 49 Wn.2d 891, 894, 307 P.2d 1064

(1957)). Strict compliance is required for time and manner requirements in unlawful

detainer actions. Smith v. Seattle Camp No. 59, 57 Wash. 556, 557, 107 P. 372

(1910); Truly v. Heuft, 138 Wn. App. 913, 920-21, 158 P.3d 1276 (2007); Cmty.

Invs., Ltd. v. Safeway Stores, Inc., 36 Wn. App. 34, 37, 671 P.2d 289 (1983). Thus,

any noncompliance with the statutory method of process precludes the superior

court from exercising subject matter jurisdiction over the unlawful detainer

proceeding. Hous. Auth., 114 Wn.2d at 560.

Whether the time computation rules of CR 6(a) apply to RCW 59.12.030(3)

depends on the interplay of several statutes (RCW 59.12.030, .180), rules (CR 1, 6,

81), and case law. Christensen propounds a number of arguments why the civil

rules should not apply to an unlawful detainer notice. We will address them as we

look at the plain meaning of RCW 59.12.030 and .180, analyze the text of CR 1 and

81 as to the scope of the civil rules, and review the scope of CR 6. As a general

matter, time calculation rules should be applied in a clear, predictable manner. "It is

a well-accepted premise that '[l]itigants and potential litigants are entitled to know

that a matter as basic as time computation will be carried out in an easy, clear, and

consistent manner, thereby eliminating traps for the unwary who seek to assert or

defend their rights.'" Stikes Woods Neighborhood Ass'n v. City of Lacey, 124

Wn.2d 459, 463, 880 P.2d 25 (1994) (alteration in original) (quoting McMillon v.

Budget Plan of Va., 510 F. Supp. 17, 19 (E.D. Va. 1980)).

A court's objective in construing a statute is to determine the legislature's

intent. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4

(2002). "[I]f the statute's meaning is plain on its face, then the court must give

effect to that plain meaning as an expression of legislative intent." Id. at 9-10. Plain

meaning is discerned from the ordinary meaning of the language at issue, the context

of the statute in which that provision is found, related provisions, and the statutory

scheme as a whole. Id. at 9-12. An undefined statutory term should be given its

usual and ordinary meaning. Burton v. Lehman, 153 Wn.2d 416, 422-23, 103 P.3d

1230 (2005). Statutory provisions and rules should be harmonized whenever

possible. Emwright v. King County, 96 Wn.2d 538, 543, 637 P.2d 656 (1981). If

the statutory language is susceptible to more than one reasonable interpretation, then

a court may resort to statutory construction, legislative history, and relevant case

law for assistance in discerning legislative intent. Cockle v. Dep't of Labor &

Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001).

The three day notice provision explicitly requires a three "day" waiting

period. RCW 59.12.030(3). The statute does not specify whether "day" means a

business day, court day, or calendar day. There are no time calculation provisions

in chapter 59.12 RCW. The ordinary meaning of "day" is a 24 hour period

beginning at midnight. See Webster's Third New International Dictionary 578

(2002) (defining "day" as a "CIVIL DAY [] among most modern nations : the

mean solar day of 24 hours beginning at mean midnight"); id. at 316 (defining

"calendar day" as "a civil day : the time from midnight to midnight"); see also 74

Am. Jur. 2d Time § 10 (2001) ("[a] 'day' generally means a calendar day"). Using

the ordinary meaning of day, weekends and holidays would be included in the

calculation of the three day notice period.

Ellsworth argues that RCW 59.12.180 explicitly adopts the civil rules time

calculation provisions.2 The civil rules apply to the proceedings mentioned in

chapter 59.12 RCW. RCW 59.12.180. A "proceeding" is "[t]he regular and

orderly progression of a lawsuit, including all acts and events between the time of

commencement and the entry of judgment." Black's Law Dictionary 1241 (8th ed.

2004). The three day notice is an element of the definition of unlawful detainer.

See RCW 59.12.030(3). It is not a proceeding and, as such, the civil rules are not

explicitly adopted by chapter 59.12 RCW with respect to RCW 59.12.030(3).

Furthermore, the civil rules do not apply to the three day notice. The civil

rules are based upon the court's "inherent power to adopt procedural rules

necessary to the operation of the courts," while the legislature enacts substantive

law. Emwright, 96 Wn.2d at 543. Procedural rules can be differentiated from

substantive law, in that "'practice and procedure pertain to the essentially

mechanical operations of the courts by which substantive law, rights, and remedies

are effectuated.'" Id. (quoting State v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674

(1974)). Consequently, the civil rules, by their terms, govern the procedure in all

civil actions in superior court, with the exception of special proceedings under CR

81. CR 1, 81. The three day notice is a substantive law provision regarding when a

person is guilty of unlawful detainer. See RCW 59.12.030(3). The three day notice

does not deal with the mechanics of the operation of superior court; therefore, it is

not within the scope of the civil rules.

Even if the civil rules applied, they are inconsistent with the plain meaning of

RCW 59.12.030(3). Under CR 81(a), the civil rules apply to all civil proceedings

"[e]xcept where inconsistent with rules or statutes applicable to special

proceedings." Unlawful detainer actions are special proceedings. State ex rel.

Smith v. Parker, 12 Wash. 685, 688, 42 P. 113 (1895).

Courts have applied the civil rules to proceedings under the unlawful

detainer statute in the absence of express inconsistencies. In 1971, the Court of

Appeals determined that a provision dealing with jury trials in unlawful detainer

proceedings was subject to the provisions of CR 38 and 39. Thompson v. Butler, 4

Wn. App. 452, 454, 482 P.2d 791 (1971). The court stated that there was no

inconsistency between the statute and rules and no reason to believe that the

legislature did not intend for the right to a jury trial to be according to the terms of

In 1989, the Court of Appeals determined that CR 54(c) (regarding default

judgments) applied to unlawful detainer proceedings because it was not inconsistent

with any of the procedures under chapter 59.12 RCW. Kelly v. Powell, 55 Wn.

App. 143, 148, 776 P.2d 996 (1989). Most recently, Division One determined that

the civil rules applied to the computation of time under a former version of the

unlawful detainer summons statute because chapter 59.12 RCW does not expressly

define time computation. Canterwood Place L.P. v. Thande, 106 Wn. App. 844,

846, 25 P.3d 495 (2001). The court determined that holidays and weekends should

be excluded from the six day summons under former RCW 59.12.070 using the time

calculation provisions of CR 6(a).3 Id. at 849.

Unlike the jury trial, default judgment, or summons, the notice to pay or

vacate is not a proceeding subject to RCW 59.12.180. Second, even if the civil

rules applied, the application of CR 6(a) to the statutory notice period is contrary to

the plain language of the statute. The legislature intended for the phrase "three

days" to convey its ordinary meaning of three calendar days. Three calendar days is

inconsistent with CR 6(a), which excludes weekends and holidays from time periods

of less than seven days. Any expansion of the prescribed time interferes with the

purpose of the unlawful detainer statute, which is to provide a landlord with a

speedy, efficient procedure by which to obtain possession of the premises after a

breach by the tenant. See MacRae, 64 Wn.2d at 546.

Moreover, CR 6(a) does not apply to RCW 59.12.030(3) because the notice

to pay or vacate is a waiting period.4 In Troxell, we differentiated between the

application of CR 6(a) to limitations periods and waiting periods. 154 Wn.2d at

357. CR 6(a) applies to the computation of litigation-related deadlines or limitations

periods. Id. A deadline or limitations period generally requires a party to take legal

action; thus, "CR 6(a) ensures that the last date for taking such action will not fall

on a Saturday, Sunday, or legal holiday." Id. at 359. The overall purpose of CR

6(a) is to "ensure[] that the party with the duty to act within the allotted time period

is accorded the full number of days specified in the court rule, court order, or

applicable statute." Id. at 357.

CR 6(a) does not apply to the computation of time for a waiting period. Id. at

358. A waiting period requires a party to refrain from some action for a certain

period of time. Id. at 359. Applying the time computation provisions of CR 6(a),

except for the provision excluding the first day, to a waiting period "would serve no

practical purpose and would expand unnecessarily the period of time that the

legislature had deemed appropriate for refraining from action." Id. Thus, CR 6(a)

controls the computation of time when action must be taken within a period of time

but does not control the computation of time where action is prohibited until a

period of time has passed. See id. at 362 n.1 (Chambers, J., dissenting).

The three day notice resembles a waiting period more than a deadline because

it does not require action by the tenant. The tenant is provided with an opportunity

to correct a breach before the commencement of an unlawful detainer proceeding.

Housing Auth., 114 Wn.2d at 568-69. However, the tenant is not required to file,

respond, or appear within the set time period. The unlawful detainer notice is a

three day waiting period for the landlord before an unlawful detainer action can be

commenced rather than a deadline for the tenant to act.

Following the Troxell analysis and plain language of the statutes and rules,

the time calculation provision of CR 6(a), which calculates time periods of less than

seven days by excluding weekends and holidays, does not apply to RCW

59.12.030(3). Additionally, RCW 1.12.040 by its terms does not apply because

there is no "time within which an act is to be done." See RCW 1.12.040. No action

is required during the three day notice period, so it is irrelevant whether the notice

period includes weekends or holidays.

Christensen served the required notice on Friday. Because the notice was

served by mail, the unlawful detainer statute required a four day waiting period.

The four day waiting period ended on Tuesday and Christensen timely served

Ellsworth with a summons and complaint for unlawful detainer on Wednesday.

* * *

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=791287MAJ