Commercial leases are typically very one sided; pro landlord with the landlord dictating the terms and conditions of the lease.  Commercial leases often allow the tenant to renew the lease for an additional agreed upon term or terms, provided the tenant follows the notice of intent to renew process and deadlines in the commercial lease.

What happens if the tenant fails to follow the notice of intent to renew process and deadlines in the commercial lease?  In most cases, the tenant will be out of luck and lose the lease because the general rule is that an option to renew commercial lease clause is strictly construed and must be exercised in a timely manner.  Thus, this could result in eviction, or the landlord requiring the tenant to enter into a new commercial lease.  However, there might be another option under the right circumstances if, in my experience, the landlord is attempting to evict the tenant: the tenant may be entitled to an equitable grace period, which (if successful) will save the tenant from its failure to follow the notice of intent to renew process and deadlines and reinstate the commercial lease. 

There is a handful of cases on this in Washington State, and Washington State appears to be in the minority on the commercial lease equitable grace period/inequitable forfeiture doctrine. For my lawyer and law student readers, I list the lead cases below.

When presented with a commercial lease equitable grace period/inequitable forfeiture doctrine case,  our Courts look to the following factors: (1) whether the failure to give timely notice was purely inadvertent or was the result of intentional, culpable, or grossly negligent conduct; (2) whether an inequitable forfeiture would result if equity does not intervene; (3) whether the tenant's failure to give timely notice resulted in the landlord changing its position in any way, and whether the landlord  was prejudiced thereby; (4) whether the lease was for a long term, not a short term; and (5) whether there was undue delay in the tenant giving notice.

Commercial lease equitable grace period/inequitable forfeiture cases are factually dense and  highly factually dependent. And, like all lawsuits, there will be a tremendous amount of uncertainty to manage.  If you are a landlord considering eviction because your commercial tenant failed to exercise its option to renew the lease on time, or a tenant facing and eviction because you missed the deadlines, I would be happy to talk to you.  

Washington State Commercial Lease Equitable Grace Period/Inequitable Forfeiture Cases:
Wharf Rest., Inc. v. Protective Order of Seattle, 24 Wn. App. 601, 605 P.2d 334 (1979)
Heckman Motors v. Gunn, 73 Wn.App. 84, 867 P.2d 683 (1994)
Recreational Equip., Inc. v. World Wrapps NW., Inc., 165 Wn. App. 553 (2011) 

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The following list are some of the rules courts apply when construing statutes in legal disputes, with citations for my law student and legal professional readers. 
   

1. The court's first priority in statutory interpretation is to "ascertain and carry out the Legislature's intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
   
   
2. To determine the legislature's intent, courts first look to the statute's plain language, which it may discern from what the legislature has said in the statute and related statutes which disclose legislative intent about the provision in question. Skagit County Pub. Hosp. Dist. No. 1. v. Dep't of Revenue, 158 Wn. App. 426, 437, 242 P.3d 909 (2010).
   
   
3. To interpret a statute's plain language, the courts examine the text of the statute, "as well as 'the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.'" State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). 
   
   
4. If the plain language is subject to only one interpretation, the court's inquiry ends because plain language does not require construction.” Skagit County, 158 Wn. App. at 437. 
   
   
5. If there is not a statutory definition, court's give the words in the statute their common and ordinary meaning.  To determine the plain meaning of an undefined term, we may look to the dictionary.” Skagit County, 158 Wn. App. at 437.
   
   
6. When a statute is susceptible of more than one reasonable interpretation, court's defer to the agency's interpretation of the statute if that interpretation does not conflict with the statutory language and is within the agency's expertise.” New W. Fisheries, Inc. v. Dep't of Revenue, 106 Wn. App. 370, 377, 22 P.3d 1274 (2001). 
   
   
7. Courts cannot interpret a statute in a manner that leads to an absurd result. Estate of Bunch v. McGraw Residential Ctr., 174 Wn.2d 425, 433, 275 P.3d 1119 (2012).

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​Some people, because of their circumstances, are more susceptible to injuries than others. The law protects these people via the eggshell plaintiff rule.  The eggshell plaintiff rule holds that a tortfeasor takes his victim as he finds him. Buchalski v. Universal Marine Corp., 393 F. Supp. 246, 248 (W.D. Wash. 1975) (“It is a well-established precept of tort law that a tortfeasor takes his victim as he finds him, and must bear liability for the manner and degree in which his fault manifests itself on the individual physiology of the victim.” Id.)  It is well established in Washington law. See, e.g., Reeder v. Sears, Roebuck & Co., 41 Wn.2d 550, 556-57, 250 P.2d 518 (1952).  

A potential example of an eggshell plaintiff is a person who is a previous victim of violence or abuse. Many times such persons are more susceptible to emotional distress injury if they are subsequently the target of verbal or physical abuse at work.  In such a case--a hostile work environment case--the severity of the plaintiff's emotional distress injuries may be greater than a person who was not a prior victim of violence or abuse.  The eggshell plaintiff rule protects this person, and permits a recovery for the more severe emotional distress injuries.

Another potential example of an eggshell plaintiff could be a person who suffered a physical injury of some sort previously, and because of this prior injury to their body, they are at risk for greater harm than someone without this history. If such a person is in an automobile accident and suffers a greater injury because of the prior injury, the eggshell plaintiff rule protects them and affords a path to recover on the greater injury. 

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The business judgment rule shields a corporate director or office from liability as long as he or she acts in goof faith without a corrupt motive. Unless there is evidence of fraud, dishonesty, or incompetence, courts will generally refuse to substitute its judgment for the judgment of the directors or officers of corporations.  As long as there is a reasonable basis that indicates the challenged translation was entered into with due care and in good faith, the business judgment rule will almost always carry the day and protect the officers and directors.  The business judgement rule also applies to members of a limited liability company.

​Shareholders that want to challenge corporate action, have an uphill battle due to the business judgment rule. 
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Early in my legal career, I worked on a case that went to the Court of Appeals in Washington.  The case is captioned, Lloyd Enters., Inc. v. Longview Plumbing & Heating Co., 91 Wn. App. 697, 701, 958 P.2d 1035 (1998). In this case, we represented a contractor plaintiff and filed complaints against Berry, Inc. and Wade Berry, the president of Berry, Inc.   Non-lawyer Wade Berry filed answers pro se on behalf of the corporation, meaning without a licensed attorney.  Having a non-lawyer in the case was disruptive to the proceeding to say the least. 

After sending multiple warnings to Berry Inc. and Wade Berry, we moved to strike all the documents filed by Mr. Berry acting for the benefit of the corporation. This because Rule 11 of the Washington Rules of Civil Procedure requires pleadings to be signed by a licensed attorney. 

After granting the motion, the trial court gave the corporation, Berry, Inc.,  20 days to file an answer signed by an licensed attorney. When Berry, Inc. failed to comply, the trial court entered an order of default.

On appeal, Division One of the Washington State Court of Appeals held that the trial court properly struck the documents for violation of Rule 11 because the corporation did not promptly cure the omission. The Appeals Court stated: "Because corporations are artificial entities that can act only through their agents, we agree with the general common-law rule, recognized by courts in other jurisdictions, including all federal courts, that corporations appearing in court proceedings must be represented by an attorney." 

The Court of Appeals explained the reason for its decision: "A shareholder who owns all or practically all of a corporation's stock is not entitled to sue as an individual because the shareholder cannot employ the corporate form to his advantage in the business world and then choose to ignore its separate entity when he gets to the courthouse."

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An employment discrimination plaintiff makes a prima facie case of discrimination by showing that (1) she was within a statutorily protected class, (2) she was discharged by the defendant, (3) she was doing satisfactory work, and (4) after her discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff.

For years, Washington courts have held that employment discrimination plaintiffs must prove that they were replaced by someone outside of their protected class--the replacement element.  For example, if the employment discrimination plaintiff was female, she had to prove she was replaced by a man; if the employment discrimination plaintiff was over 40-years of age, he or she had to prove they were replaced by someone under 40-years of age.  This often created often monumental burden for employment discrimination plaintiffs.

The Washington State Supreme Court, in a decision published today (Mikkelsen v. Public Util. Dist. No. 1, 2017 Wash. LEXIS 985 (10.19.2017), held that the replacement element is not required to prove a prima facie case of employment discrimination. This decision will make it easier for employment discrimination plaintiffs to prosecute their claims and harder for employers to defeat these claims.  

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Employer's really don't like that their employees can sue them, and if the employee prevails, the employee is entitled to recover his or her attorneys fees from the employer.  Like it or not, that's what the law says for the vast majority of statutes that protect employee's civil rights and from retaliation.  
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The United States Congress explained the reason for including the payment of a employee plaintiff’s fees and costs as part of the damages in employment cases in the Senate Report on Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988: “If private citizens are able to assert their civil rights, and if those who violate the nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in Court.”

The U.S. Supreme Court has noted that these fee shifting statutes are intended by the U.S. Congress "to ensure effective access to the judicial process" by properly compensating attorneys to ensure that employees had the ability "to attract competent counsel" to represent their claims.  Justice Alito, in Perdue v. Keeney, wrote that these fee shifting provisions are intended "to ensure that federal rights are adequately enforced." 

Many state statutes that protect civil rights and employees from retaliation also include attorney fee provisions that allow a successful plaintiff to recovery attorney fees and costs incurred.  The policy is the same as noted above.

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You will often find a provision in a contract that sets a pre-determined dollar amount one party will pay the other if there is a breach of contract.  These are called liquidated damages provisions.  You will find them in construction contracts, leases, any many other types of contracts.

Under Washington State law, true liquidated damages clauses, those that are not penalties, are favored and will be upheld. Washington court have held that liquidated damages agreements that are fairly and understandingly entered into by experienced, equal parties with a view to fair compensation for the anticipated loss should be enforced. However, if the parties to the contract are not on equal footing, or if the amount stated is a penalty with no reasonable relation to actual damages will be construed as a penalty, and the liquidated damages provision might not be enforced.  

As you can see, there is room for legal positioning and several defensive arguments that might apply in a breach of contract case concerning a liquidated damages provision, so it's best to understand the law before inserting one in your contracts. 
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In litigation, the plaintiff bears the burden of proof, which requires the plaintiff to present evidence on all of the elements of the cause of action. In addition, the plaintiff must meet the standard of proof.  There are two options that might apply for the standard of proof, preponderance of the evidence and clear and convincing.  

Preponderance of the evidence means evidence that is more probably true than not true.  Think 51%.  

The clear and convincing evidence standard is higher than 51%; requiring a quantum of evidence beyond a mere preponderance of evidence, but below beyond a reasonable doubt.  This standard is sometimes described as "clear, cogent, and convincing evidence."  Examples where this higher standard applies are fraud, proving the actual malice element in defamation cases and proving a will is invalid in a probate case.  There are others too; this list is not exhaustive.

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