Opinion
No. 26275-8-III.
September 11, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-05336-7, Salvatore F. Cozza, J., entered July 20, 2007.
This is an unlawful detainer action. The trial court entered appropriate findings of fact and conclusions of law in favor of the landlord following a bench trial. We conclude that the court considered appropriate evidence, that the findings are supported by that evidence, and that they, in turn, support the court's conclusions of law. And we therefore affirm the judgment and award fees and costs.
FACTS
Larry and Kimberly Cameron owned rental property located in Spokane, Washington. Mr. Cameron rented the property to Donovan Khalar. Mr. Khalar began to stay at the rental in May 2005. He frequently slept there.
Mr. Khalar paid rent sporadically. He did not pay rent for December 2005 or February 2006. He paid rent late in November 2005 and January and March 2006. Mr. Khalar appears to have timely paid rent between April and September. He stopped paying rent after September 2006.
The Camerons served Mr. Khalar with a 30-day notice to terminate tenancy and vacate by posting it at the rental property on September 27, 2006. They then filed an unlawful detainer action on January 4, 2007.
At trial, Mr. Khalar moved to admit a recording of voicemail messages left by Mr. Cameron. A transcript of the voicemails shows that Mr. Cameron wanted to return a rent payment to Mr. Khalar, that Mr. Cameron attempted to notify Mr. Khalar that he had to move out of the rental, that Mr. Cameron changed the locks, and that Mr. Khalar was only allowed on the rental property's driveway and back porch to get his belongings. The court refused to admit the recording because Mr. Khalar had not disclosed it in the court-ordered joint trial report and because it violated privacy laws. The court did, however, allow Mr. Khalar to testify about the content of the recording.
Mr. Khalar also dropped a number of his counterclaims but asserted a number of defenses. He asserted that he did not owe rent because the Camerons breached his right to quiet enjoyment in the property. He claimed that the Camerons entered the rental, disturbed his property, and moved some of his possessions from the house to the garage. Mr. Khalar also claimed that the Camerons had agreed to sell him the property.
The court found that the parties had no purchase and sale agreement. It found that Mr. Khalar stopped residing at the rental by September 2006. But it found that Mr. Khalar continued to claim possession of the rental after October 31, 2006. For example, Mr. Khalar disconnected the water meter from the pipes in November 2006. Report of Proceedings (RP) at 91. And he jammed the back door shut with a board and apparently changed the locks to the front door without giving the Camerons a key. Clerk's Papers (CP) at 173-74. The trial court found that most of Mr. Khalar's personal property was removed from the rental before September 2006. The court also found that he owed back rent in the amount of $6,500 for December 2005, February 2006, and October 2006 through May 2007.
The court commented that "a tenant doesn't get free rent no matter what happens. . . . [S]et-offs in favor of the tenant . . . are, in effect, cut off by virtue of RCW 59.18.080." CP at 120-21. But the court's comment did not find its way into either the court's written findings or conclusions.
A tenant must be current on rent before exercising remedies under chapter 59.18 RCW, except for the defense that no rent is due and owing in an unlawful detainer action. RCW 59.18.080.
The court also concluded that the Camerons were entitled to attorney fees and costs and awarded $3,500 in fees and $357 in costs.
DISCUSSION
Refusal to Admit Audio Recording
Mr. Khalar first contends that the court erred by refusing to admit the recording of the message left by Mr. Cameron on his answering machine. But the court ultimately allowed Mr. Khalar to testify about the contents of the message. Any error, even assuming error, would then be harmless. Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 261, 944 P.2d 1005 (1997) (no reversible error where testimony and excluded evidence were the same). Moreover, the case was tried to the court sitting without a jury. So we reject the suggestion here that the admission or exclusion of this evidence inappropriately influenced the outcome of this landlord-tenant case. State v. Read, 147 Wn.2d 238, 244-45, 53 P.3d 26 (2002).
The trial judge also has the authority to admit or exclude evidence. Maehren v. City of Seattle, 92 Wn.2d 480, 488, 599 P.2d 1255 (1979) (citing Goodell v. ITT-Fed. Support Servs., Inc., 89 Wn.2d 488, 573 P.2d 1292 (1978)). And, while the recorded messages were not private, the court certainly had authority to sanction the violation of its discovery order, including the failure to list this evidence in the trial management joint report. Carlson v. Lake Chelan Cmty. Hosp., 116 Wn. App. 718, 737, 75 P.3d 533 (2003). Ultimately, though, we conclude that any error, even were we to assume error, was harmless.
Legal Significance of the Court's Oral Ruling
Mr. Khalar next contends that the court misinterpreted RCW 59.18.080 when it said, "a tenant doesn't get free rent no matter what happens" and "set-offs in favor of the tenant . . . are, in effect, cut off by virtue of RCW 59.18.080." CP at 120-21. Again, the problem with this argument is that the trial judge's reflections, even if they were wrong, did not work their way into the court's written findings or conclusions and, therefore, cannot support any assignment of error. See Huzzy v. Culbert Constr. Co., 5 Wn. App. 581, 583, 489 P.2d 749 (1971). A trial judge's oral findings or conclusions are not binding unless the judge incorporates them into the formal findings and conclusions. Id. And the written decision controls if the oral opinion conflicts with the written decision. Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963). The objections to the court's oral musings then are not well taken. Huzzy, 5 Wn. App. at 583 (citing Ferree, 62 Wn.2d at 567).
Here, the court's formal conclusions show that the court considered Mr. Khalar's defenses even though it said it would not. The court specifically considered Mr. Khalar's breach of quiet enjoyment claim and concluded: "There is insufficient evidence to sustain Defendant's claims of substantial and material breach of warranty of quiet enjoyment, as a result of Plaintiff's limited entry into leasehold premises, to justify Defendant's failure to pay rent and/or utilities." CP at 111-12 (Conclusion of Law 5). The court also considered and dismissed Mr. Khalar's other defenses, including a retaliation defense. CP at 111-12 (Conclusion of Law 4). The written conclusions control. Ferree, 62 Wn.2d at 567. And Mr. Khalar does not assign error to them.
Mr. Khalar's next argument is a bit unclear. He suggests that the court misapplied RCW 59.18.080 if the court's oral interpretation of the statute is correct. We reject Mr. Khalar's argument that the court misunderstood and misapplied RCW 59.18.080 for the reasons already discussed. Authority to Consider Purchase-Sale Agreement Defense
Mr. Khalar next argues that the trial court did not have the authority to pass on whether or not he had an agreement to purchase the property because chapter 59.12 RCW (forcible entry and forcible and unlawful detainer) gives the trial court only limited authority. Granat v. Keasler, 99 Wn.2d 564, 571, 663 P.2d 830 (1983); Heaverlo v. Keico Indus., Inc., 80 Wn. App. 724, 728, 911 P.2d 406 (1996).
We review questions of subject matter jurisdiction de novo. Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 71, 170 P.3d 10 (2007).
In an unlawful detainer action, a tenant may assert only counterclaims that would excuse his failure to pay rent. Granat, 99 Wn.2d at 570; see Sprincin King Street Partners v. Sound Conditioning Club, Inc., 84 Wn. App. 56, 68, 925 P.2d 217 (1996). And the trial court does not have subject matter jurisdiction over counterclaims that do not excuse failure to pay rent. See Sprincin King Street, 84 Wn. App. at 68. "[T]he court sits as a special statutory tribunal to summarily decide the issues authorized by statute [i.e., whether the landlord is entitled to possession] and not as a court of general jurisdiction with the power to hear and determine other issues." Granat, 99 Wn.2d at 571.
Here, Mr. Khalar's original answer says he agreed to a one-year lease with an option to purchase the rental property. Mr. Khalar also never specifically withdrew a claim of a purchase-sale agreement. He generally moved to withdraw all counterclaims and to preserve and assert set-off defenses.
The trial court had subject matter jurisdiction over the factual issue underlying finding of fact 1 (addressing lack of a purchase-sale agreement). The court needed to make findings on those facts essential to the legal elements presented by the claims and defenses. See Maehren, 92 Wn.2d at 487-88. The central question here was whether the Camerons were entitled to possession of their rental property. The existence or nonexistence of a purchase-sale agreement would affect the answer to that question. The Camerons could not sue for unlawful detainer if they agreed to sell the property to Mr. Khalar. See 1C Kelly Kunsch, Washington Practice: Methods of Practice § 88.1 (4th ed. 1997). The court's finding that there was no purchase and sale agreement supported the ultimate conclusion that the Camerons, as landlords, were entitled to possession. And the court certainly had authority to pass on that question as part of an unlawful detainer action. See Maehren, 92 Wn.2d at 487-88. Sufficient Evidence to Support the Finding that Tenant's Personal Property Remained Mr. Khalar next argues that the evidence does not support the court's finding of fact 6 (most of the defendant's personal property had been removed before September 2006). His argument seems to suggest that he did not own the personal property that had been removed.
We review the court's findings of fact for substantial evidence. Keever Assocs., Inc. v. Randall, 129 Wn. App. 733, 737, 119 P.3d 926 (2005).
Finding of fact 6 states: "Most of Defendant's furnishings and personal property were removed from the leasehold premises prior to September, 2006." CP at 109.
Mr. Khalar testified that he suspected the Camerons had disturbed his possessions:
Q. When was the first time you were locked out of the house?
A. First time I was locked out of the house was September 5th, 2006.
Q. Were any of your possessions disturbed at that time?
A. Yes, they were.
RP at 65. He testified that some of his possessions had been moved to the garage. RP at 69. The trial court could infer from this testimony that Mr. Khalar owned the property in the house and garage. The finding is then supported by substantial evidence. Substantial Evidence Supports Finding that Tenant Lived on the Property
Mr. Khalar argues that the record shows that he lived in Wyoming.
Again, the question before us is whether the court's finding that Mr. Khalar lived on the property is supported by substantial evidence. Keever, 129 Wn. App. at 737.
Mr. Khalar argues that the record does not support the court's finding that he resided in the Camerons' rental property. He does not identify which finding he is challenging however. Finding of fact 5 states in part that "[d]efendant ceased residing at the leasehold premises on or before September, 2006." CP at 109. The record here shows that Mr. Khalar continuously resided at the rental property for over one year. Mr. Khalar admitted that he rented the Camerons' property. He conceded that he began occupying the rental in May 2005. And he testified that he stayed at the property:
Q. You stayed at the property. Correct?
A. For the purpose of fixing up the property, yes, I did.
RP at 111. He also slept at the property frequently. And he stopped staying at the house on September 8, 2006. RP at 105.
This record supports the finding that Mr. Khalar resided at the property. The evidence also supports the trial court's finding that Mr. Khalar "ceased residing at the leasehold premises on or before September, 2006." CP at 109.
Sufficient Evidence to Support Finding that Rent Was Owed for a Month in Late 2005 and March 2006
Mr. Khalar challenges the trial court's finding that he owes back rent for a month in late 2005 and March 2006.
Again, the test is substantial evidence. Keever, 129 Wn. App. at 737. Finding of fact 12 states that "[d]efendant owes rent and arrears in the amount of $6,500.00, for past due rent obligations and holdover rent for the months of December, 2005, February, 2006, and October, 2006 through May, 2007." CP at 110.
First, this finding does not indicate that Mr. Khalar owes rent for March 2006. And the record shows that Mr. Khalar paid rent in March 2006. The trial court, therefore, did not find that Mr. Khalar owes rent for March 2006.
Second, the record supports the finding that Mr. Khalar owes rent for December 2005. Mr. Cameron testified that Mr. Khalar did not pay his rent for December 2005. This testimony was sufficient to support finding of fact 12 even though Mr. Khalar testified that he had "no reason to believe" that he never paid December 2005 rent. RP at 113-14.
Mr. Khalar argues that the record shows that Mr. Cameron waived his right to receive rent for December 2005. Mr. Cameron did, in fact, testify that he told Mr. Khalar: "[W]e will just let [December 2005 rent] go . . . just so long as January we start getting things back on track." CP at 145. But the trial court was not persuaded that Mr. Cameron waived rent for December 2005. We will not reweigh evidence. We simply "determine whether there exists the necessary quantum of proof to support the trial court's findings of fact." In re Welfare of Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973). And sufficient evidence supports finding of fact 12.
Attorney Fees and Costs
Mr. Khalar challenges the trial court's award of attorney fees. He argues that the court failed to apply the lodestar method or consider the factors set out in former RCW 59.18.030(9) (1998). He also contends that specific documentation of hours worked and work performed must, but do not, support the award.
In 2008, subsection (9) became subsection (14).
We review an award of attorney fees and costs for abuse of discretion. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998).
Conclusion of law 12 provides that the Camerons "are entitled to reasonable attorney fees and costs pursuant to lease and RCW 59.18.410." CP at 112-13. RCW 59.18.410 (unlawful detainer statute) permits the trial court to award "reasonable attorney's fees" and statutory costs to a prevailing plaintiff.
"Reasonable attorney's fees" are
an amount to be determined including the following factors: The time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the fee customarily charged in the locality for similar legal services, the amount involved and the results obtained, and the experience, reputation and ability of the lawyer or lawyers performing the services.
Former RCW 59.18.030(9). The court must enter findings and conclusions that reflect its consideration of the former RCW 59.18.030(9) factors. Mehlenbacher v. DeMont, 103 Wn. App. 240, 249, 11 P.3d 871 (2000); Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 715-16, 9 P.3d 898 (2000); Miller v. Yates, 67 Wn. App. 120, 126, 834 P.2d 36 (1992). We will remand for recalculation when the trial judge fails to enter findings and conclusions. Mehlenbacher, 103 Wn. App. at 249; Eagle Point, 102 Wn. App. at 715-16; Miller, 67 Wn. App. at 126.
The trial court here awarded $3,500 in attorney fees and $357 in costs. It, however, did not enter findings and conclusions to support the award. The record does not reflect that the court considered the statutory factors enumerated in former RCW 59.18.030(9). We remand the matter for calculation of reasonable attorney fees and entry of appropriate findings and conclusions. Fees on Appeal The Camerons request attorney fees and costs on appeal pursuant to RAP 18.1(a).
Mr. Khalar did not object to their request.
RCW 59.18.290(2) allows a landlord to recover reasonable attorney fees from a tenant for unlawful detainer. RAP 18.1(a), then, permits this court to award fees and costs under any applicable law that grants the right to recover fees and expenses on review. RCW 59.18.290(2) applies here. And it permits the Camerons to recover attorney fees and costs.
We affirm the judgment of the trial court, and we award the Camerons fees and costs on appeal. We remand to the trial court to calculate trial and appellate attorney fees and costs and to enter findings and conclusions in accordance with this opinion.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.