Wash. Court of Appeals published opinion — 361896_pub.pdf

Citation: Wash. Court of Appeals published opinion — 361896_pub.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/361896_pub.pdf ↗

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Properties had a long term lease with Borton. Eric Rogers, or Burbank Properties,

repeatedly told Borton that Burbank Properties intended to exercise the option. The

failure to send notice by December 31 was inadvertent. Eric Rogers prepared the notice

on December 28 and then left it on his desk.

Burbank Properties exercised the option only four days late. It mailed the notice

on January 4, rather than December 31. Borton took no steps between December 31 and

January 4 as a result of an untimely exercise of the option. Borton did not even take any

steps by January 8, the day of receipt of the notice. Borton suffered no iota, scintilla,

mite, or tittle of prejudice from the late exercise.

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 36189-6-III
Borton & Sons, Inc. v. Burbank Properties, LLC (dissent)

I note that the option paragraph in the Borton-Burbank Properties lease does not

indicate whether Burbank Properties needed to mail the notice by December 31 or

whether Borton needed to receive the notice by December 31. Generally, notice by mail

is considered complete on mailing, not on receipt. 58 AM. JUR. 2D Notice § 29 (2012).

Let us assume that Burbank Properties mailed the notice of exercise on December 31,

but, because of delays in the mail, Borton did not receive the notice until January 8.

Borton would have been in no different position than that which actually occurred.

This appeal also holds a unique factor. Closing of the sale was not to occur until

December 2018. A delayed closing bolsters the lack of any prejudice to Borton.

On appeal, Borton also argues that Burbank Properties provided no evidence that

it could pay the purchase price at closing. Nevertheless, closing would occur one year