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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HENRY ROGERS,                               )       NO. 66537-5-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
DARRON CAGE,                                )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: May 29, 2012
                                            )

       Lau, J.  --  Darron Cage argues the evidence fails to support the court's findings 

of fact interpreting an oral lease agreement he entered with condominium owner Henry 

Rogers.  Because Rogers testified regarding the lease agreement's terms and Cage's 

testimony corroborated Rogers' testimony, substantial evidence supports the court's 

findings.  We affirm.

                                            FACTS

       The following facts are undisputed.  In August 2008, Henry Rogers purchased a 

condominium located in Renton, Washington, from Darron Cage.  Cage orally leased  

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the condominium back from Rogers.  From August 2008 through June 2010, Cage 

made monthly payments to Rogers.  Each monthly payment for this period included the 

full amount of the mortgage payment, plus homeowner association dues.  After making 

his June 2010 payment, Cage ceased all payments to Rogers.  Rogers sued for 

unlawful detainer and default rent.  On November 16, 2010, Rogers, through a man 

whom he granted a power of attorney, moved to continue the trial date until he could 

return to the country from travel abroad.  The court granted this motion.  On December 

17, 2010, the court heard testimony from Rogers and Cage and considered exhibits.  

The court then entered findings of fact, conclusions of law, judgment in Rogers' favor, 

and an order granting attorney fees and writ of restitution to Rogers.  The court denied 

Cage's motion for reconsideration.  Cage appeals.

                                          ANALYSIS

       Cage argues the court abused its discretion when it granted Rogers' motion to 

continue the trial date because a nonattorney filed the motion.  Cage acknowledges he 

failed to raise this argument below, but urges the court to consider the issue because 

we "should not allow Rogers to reap the benefit of RAP 2.5(a) due to the 

misrepresentation of an individual who merely held power of attorney for Rogers."  

Appellant's Reply Br. at 4.  Cage also argues we should review the claimed error 

because the court entered an order continuing the trial before Cage filed his opposition.  

Rogers argues that Cage failed to raise these arguments below.

       The appellate court may refuse to review any claim of error which was not raised 
       in the trial court.  However, a party may raise the following claimed errors for the 
       first time in the appellate court:  (1) lack of trial court jurisdiction, (2) failure to

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       establish facts upon which relief can be granted, and (3) manifest error affecting 
       a constitutional right. . . .  

RAP 2.5.  Because Cage failed to present these arguments to the trial court and none 

of the RAP 2.5 exceptions apply, we decline to review this assignment of error.  RAP 

2.5. And even if we reviewed the claimed error, we conclude Cage fails to demonstrate 

any prejudice resulting from the continuance.

       Cage assigns error to two of the court's findings of fact:

              1.3     Defendant(s) now occupy the above described premises at a rent 
       of $1522.11 per month plus condo fees and utilities ($50.74 per day), payable on 
       the 1st day of each calendar month.
              1.4     Defendant(s) are in default of the payment of rent in the amount of 
       $9564.45 for the period set forth on notice, on file herein, which amount is now 
       past due and owing to the plaintiff(s).

Cage also assigns error as follows:  "The trial court erred in determining that the oral 

month-to-month lease at issue required the appellant to pay 100% of the monthly 

mortgage and condominium dues." Appellant's Br. at 4.  Cage asserts, "The above 

findings fly in the face of Rogers' acknowledgment that he paid Cage a substantial sum 

of money around the time which Rogers claims Cage was in default for rent (i.e. July-

December, 2010)." Appellant's Br. at 15.  Rogers counters that substantial evidence 

supports the court's findings of fact.

       When the trial court has weighed the evidence, we review the trial court's factual 

findings for substantial evidence to support them.  We then determine whether the 

findings of fact support the conclusions of law and judgment.  Brin v. Stutzman, 89 Wn.

App. 809, 824, 951 P.2d 291 (1998).  "'Substantial evidence is evidence in sufficient 

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quantum to persuade a fair-minded person of the truth of the declared premise.'" Brin,

89 Wn. App. at 824 (quoting Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 

819, 828 P.2d 549 (1992)).  There is a presumption in favor of the trial court's findings, 

and the party claiming error has the burden of showing that a finding of fact is not 

supported by substantial evidence.  Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 

Wn.2d 364, 369, 798 P.2d 799 (1990).  We defer to the trier of fact for purposes of 

resolving conflicting testimony and evaluating the persuasiveness of the evidence and 

credibility of the witnesses.  Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 

(2002).  And an appellate court may not substitute its evaluation of the evidence for 

that made by the trier of fact.  Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 

P.2d 703 (1994).  "The substantial evidence standard is deferential and requires the 

appellate court to view all evidence and inferences in the light most favorable to the 

prevailing party." Lewis v. Dep't of Licensing, 157 Wn.2d 446, 468, 139 P.3d 1078 

(2006).  We review legal issues de novo.  Goodman v. Goodman, 128 Wn.2d 366, 373, 

907 P.2d 290 (1995).  Unchallenged findings of fact are verities on appeal.  In re Estate 

of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); see also RAP 10.3(g). 

       At trial, Cage and Rogers provided conflicting testimony about their oral lease 

agreement but agreed about which payments Cage made.  Rogers testified:

              Well, the reason why I bought the condo in the first place is [Cage] came 
       to me and said that his nephew, Bernard Cage, was going to prison and he was
       going to lose some property that he had over in Covington if he didn't make the 
       payments on it.  And so I agreed I would buy the condo from [Cage], [Cage] was 
       going to take the money and pay for whatever he had to bail his nephew's 
       property out.
              He was supposed to make all the payments, all the condo assessment 

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       fees and all the utility bills, it wasn't going to cost me anything.  And that when 
       Bernard got out of prison, he was going to sell off some of his assets and buy 
       the condo back from me.  And that never happened.

Report of Proceedings (Dec. 17, 2010) (RP) at 8.  It is undisputed that Cage paid the 

full amount of the monthly mortgage payments and association dues from August 2008 

through June 2010.  Cage testified that he made the payments to Rogers because 

"Rogers wanted to make the payments so he could get credit for his bank account, or 

whatever he got points for, using his card or something." RP at 7. 

       It is also undisputed that Cage stopped making these payments after his June 

2010 payment.  Rogers testified that Cage made no lease payments in July, August, 

September, October, November, or December 2010.  Cage admitted that he stopped 

making payments after June 2010.  Despite paying the full amount of mortgage 

payments and association dues for nearly two years, Cage testified, "[T]he lease was 

that Mr. Rogers and I were gonna split the lease 50/50, that I was gonna stay there.  I 

initially sold the place to Mr. Rogers, and Mr. Rogers never paid; he was gonna stay 

there part time.  He was gonna stay in Thailand part time and he was gonna stay there 

part time." RP at 5-6.  Rogers testified that he lived at the Renton property with Cage 

from April 1, 2010, until the latter part of June 2010.  

       Cage's argument centers on a $3,000 check from Rogers to Cage in August 

2010.  He argues that this check shows that Rogers owed money to Cage because 

Cage paid more than his share of the lease.  But Rogers offered conflicting testimony.

       Rogers testified that while in Thailand, Cage sent him an e-mail stating that 

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Rogers was eligible for a first time home buyer's tax credit.  An accountant prepared 

Rogers' income tax return, which included this tax credit.  Rogers received a check 

from the Internal Revenue Service for $7,400.  Cage then told Rogers, "[T]hat money's 

my money because I been making the payments on this condominium." RP at 9.

       Rogers testified:  

              And that's when the next day he brought these papers right here to me 
       that he had printed out on the Internet from the IRS website that said I had 
       obtained this first time home buyer's tax credit illegally, and if I didn't give him 
       the money he was going to call the IRS and turn the wife and I both in.
              And I read this to talk about the fine and imprisonment.  I got scared, so I 
       made him out a check for $3,000.  He wanted  --  the next day he wanted the rest 
       of the money or he was going to call the IRS.  

RP at 9-10.  After consulting an accountant who told him he was not eligible for the 

credit, Rogers then sent a check to the IRS for $7,687.04.  

       The $3,000 payment made by Rogers to Cage does not undermine the court's 

findings.  The court was entitled to believe Rogers' explanation rather than Cage's.  

"Credibility determinations cannot be reviewed on appeal."  Morse v. Antonellis, 149 

Wn.2d 572, 574, 70 P.3d 125 (2003).

       Our review of the record shows that substantial evidence amply supports the 

court's challenged findings.  Rogers testified that Cage agreed to an oral lease that 

required monthly payments constituting the full amount of mortgage payments and 

association dues.  Cage admitted he made these payments for nearly two years.  This 

provides not only substantial but also overwhelming evidence supporting the court's 

findings.  

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       Cage's other arguments also relate only to credibility issues.  Rogers testified 

that he lived at the property for several months in 2010 upon his return from Thailand 

because Cage offered him a place to stay.  The court was entitled to believe this 

testimony.  The court also was entitled to disbelieve Cage's explanation for why he paid 

the full amount of the mortgage and association dues for nearly two years if he was 

only obligated to pay half.  We conclude substantial evidence supports the court's 

findings, and these findings support the conclusions of law.

       Rogers requests attorney fees under RAP 18.1 and 18.9, arguing that Cage's 

appeal is frivolous.  "A frivolous action is one that cannot be supported by any rational 

argument on the law or facts." Rhinehart v. Seattle Times, 59 Wn. App. 332, 340, 798 

P.2d 1155 (1990).  We resolve doubts in favor of the appellant.  Lutz Tile, Inc. v. Krech,

136 Wn. App. 899, 906, 151 P.3d 219 (2007). Because we conclude that Cage's 

appeal is not so devoid of merit that sanctions or fees are appropriate, we decline to 

award Rogers fees and costs.

       Affirmed.

WE CONCUR:

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