Opinion
Nos. 61557-2-I; 61559-9-I.
May 11, 2009.
Appeals from a judgment of the Superior Court for Snohomish County, No. 08-2-03064-2, Jacalyn D. Brudvik, J. Pro Tem., entered April 1, 2008.
Reversed and remanded by unpublished opinion per Dwyer, A.C.J., concurred in by Agid and Ellington, JJ.
UNPUBLISHED OPINION
This consolidated appeal concerns rulings in two separate residential unlawful detainer actions that Jafar Jahed brought in sequence against his former tenants, Curtis and Katrina Miller. First, the Millers appeal from the trial court's summary denial of their motion for attorney fees in the first action, which Jahed voluntarily dismissed. Second, they appeal from the issuance of a writ of restitution and entry of final judgment in Jahed's favor in the second action. We conclude that the trial court erred in both the first and second actions. Accordingly, we reverse and remand both matters for further proceedings.
I
The Millers leased an apartment from Jahed for $880 per month, due on the first day of each month. Their lease included a "late charges" provision, which imposed a $50 per day late fee for every day the full monthly rent was unpaid. The lease also contained a clause requiring the Millers to pay for Jahed's attorney fees in the event that he took legal action against them to enforce the lease.
II
On February 4, 2008, Jahed brought a complaint for unlawful detainer against the Millers, alleging that they had failed to pay rent. The Millers answered pro se and asserted that when they attempted to pay Jahed, he refused to accept payment in retaliation for a perceived slight. Jahed also moved for the issuance of a writ of restitution allowing him to retake possession of the apartment.
On February 27, 2008, the trial court held a show cause hearing on Jahed's writ application. The Millers were present and represented by counsel. Apparently without taking testimony or receiving evidence, the trial court issued a writ of restitution and entered judgment in Jahed's favor.
However, the Snohomish County Sheriff refused to enforce the writ of restitution because it contained an incorrect address for the Millers' apartment. Jahed then moved to amend the writ to reflect the correct address. At a March 5, 2008, hearing, the trial court denied Jahed's motion, finding that there were "several procedural errors relating to an exact address used for purposes of service." Rather than dismissing Jahed's claims, the court ordered Jahed to amend his complaint and serve all documents anew. Instead, Jahed moved for voluntary dismissal, which the court granted.
On March 17, 2008, the Millers moved for an award of attorney fees, claiming prevailing party status under RCW 59.18.290. At a subsequent hearing, the trial court denied the motion because the Millers had not "reserved" the issue when Jahed moved for voluntary dismissal.
RCW 59.18.290 provides, in full:
(1) It shall be unlawful for the landlord to remove or exclude from the premises the tenant thereof except under a court order so authorizing. Any tenant so removed or excluded in violation of this section may recover possession of the property or terminate the rental agreement and, in either case, may recover the actual damages sustained. The prevailing party may recover the costs of suit or arbitration and reasonable attorney's fees.
(2) It shall be unlawful for the tenant to hold over in the premises or exclude the landlord therefrom after the termination of the rental agreement except under a valid court order so authorizing. Any landlord so deprived of possession of premises in violation of this section may recover possession of the property and damages sustained by him, and the prevailing party may recover his costs of suit or arbitration and reasonable attorney's fees.
III
On March 11, 2008, Jahed instituted a second unlawful detainer action against the Millers, again applying for a writ of restitution, this time using the correct address. The Millers again responded pro se, asserting that they "did not refuse to pay rent" but that Jahed "would not accept it due to personal differences" between Jahed and Mr. Miller. Jahed alleged in his complaint that he had served the Millers with notice to pay or vacate, as required by RCW 59.12.030(3), but never filed any proof of service with the trial court.
On April 1, 2008, the trial court conducted a show cause hearing on Jahed's writ application. Although Jahed and counsel for both parties were present for this hearing, the Millers were not. The court first heard a brief argument from Jahed's lawyer. Jahed did not introduce any evidence. The Millers' attorney then sought an examination of Jahed, but the court flatly declined to examine Jahed and refused to allow the Millers' lawyer to question him. The court indicated that it had reviewed the Millers' answer and concluded that they had failed to raise a defense to Jahed's allegation that they were in default in the payment of rent. With nothing more, the court issued a writ of restitution and entered final judgment enforcing the late fee clause in Jahed's favor.
IV
The Millers first contend that they were the prevailing party in the initial action and that the trial court erroneously determined that they were not entitled to seek an award of attorney fees. We agree.
We review a trial court's denial of a motion for attorney fees for abuse of discretion. Nakata v. Blue Bird, Inc., 146 Wn. App. 267, 276, 191 P.3d 900 (2008) (quoting Emmerson v. Weilip, 126 Wn. App. 930, 940, 110 P.3d 214 (2005)). "'A trial court abuses its discretion when it bases its denial on untenable grounds or reasons.'" Nakata, 146 Wn. App. at 276 (quoting Emmerson 126 Wn. App. at 940). A party may recover fees when authorized by statute. Nakata, 146 Wn. App. at 276 (citing Dayton v. Farmers Ins. Group, 124 Wn.2d 277, 280, 876 P.2d 896 (1994)).
Pursuant to RCW 59.18.290(2), the prevailing party in an unlawful detainer action may recover reasonable attorney fees at the trial court's discretion. Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 1305 (2006). As we explained in Council House, when the plaintiff in an unlawful detainer action "takes a voluntary dismissal, the defendant has prevailed for purposes of fees" under RCW 59.18.290(2). 136 Wn. App. at 159-60 (citing Hawk v. Branjes, 97 Wn. App. 776, 782, 986 P.2d 841 (1999)). See also Soper v. Clibborn, 31 Wn. App. 767, 768-69, 644 P.2d 738 (1982). Because Jahed voluntarily dismissed his first unlawful detainer action, the Millers were the prevailing party pursuant to RCW 58.18.290(2) and may recover a fee award.
Jahed argues that the Millers were not the prevailing party under RCW 59.18.290(1) and therefore are not eligible for attorney fees. This statutory provision is not pertinent to our analysis. It provides a tenant who is evicted without a court order a cause of action against the landlord and permits the prevailing party in such an action to recover a reasonable attorney fee award. The Millers did not bring a claim under this section.
"A trial court retains jurisdiction following a plaintiff's voluntary nonsuit under Civil Rule 41(a)(1)(B) to consider a defendant's motion for attorneys' fees under a statutory or contractual provision." Hawk, 97 Wn. App. at 777-78. Thus, because the Millers were the prevailing party under RCW 59.18.290(2), the trial court retained jurisdiction to consider their motion for attorney fees. The trial court erred by ruling otherwise.
The Millers' request was timely made. They were required to file their motion within 10 days of the entry of the order of voluntary dismissal. CR 54(d)(2). Jahed's argument that the Millers had to move for attorney fees 10 days after the trial court initially entered judgment in his favor on February 27 is without merit. By granting Jahed's subsequent motion for voluntary dismissal, the trial court effectively vacated the previously issued writ and judgment. Although the Millers moved for fees on Monday, March 17, 2008-12 calendar days after the March 5 entry of the order of voluntary dismissal — the Millers' motion was nevertheless timely pursuant to CR 6(a), which extends a filing deadline that falls on a weekend to the next weekday. Thus, the trial court erred by denying the Millers' request as untimely. Because an award of reasonable attorney fees under RCW 59.18.290(2) requires a discretionary ruling by the trial court, remand is required to enable the trial court to exercise its sound discretion in this regard.
The Millers erroneously contend that they are entitled to an award of attorney fees on either of two nondiscretionary bases. First, the Millers contend that such an award is mandated by RCW 4.84.330, which provides, in relevant part, that
[i]n any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements.
They are wrong. Wachovia SBA Lending, Inc. v. Kraft, ___ Wn.2d ___, 200 P.3d 683, 688 (2009).
Next, the Millers contend that an award is mandated by RCW 4.84.250 and .270. In relevant part, RCW 4.84.250 provides:
[I]n any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars.
The related statute, RCW 4.84.270, provides:
The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280.
However, these provisions apply only when the amount pleaded is $10,000 or less. Because Jahed did not specify an amount prayed for in his complaint, the statutes are inapplicable. See Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987); Pierson v. Hernandez, No. 27250-8-III (Wash.App. March 12, 2009).
V
For the first time on appeal, the Millers contend that the trial court lacked authority to adjudicate the second unlawful detainer action and that Jahed's claims should be dismissed altogether. This is so, they argue, because Jahed failed to submit proof that he served the Millers with three-days' notice to pay outstanding rent or vacate the apartment before he instituted the second action, as required by RCW 59.12.030(3). We agree that some proof of statutorily required service is necessary for the trial court to have entered judgment in Jahed's favor. But we conclude that dismissal at this stage would be premature.
"Generally, failure to raise an issue before the trial court precludes a party from raising it on appeal." Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 814, 6 P.3d 30 (2000). One exception to this rule is a claim that the trial court lacked subject matter jurisdiction over the case. RAP 2.5(a). Our Supreme Court has announced that strict compliance with the notice requirements of RCW 59.12.030 is an element of the superior court's subject matter jurisdiction over unlawful detainer actions, as opposed to being merely an element of the claim itself or a matter of personal jurisdiction capable of being waived by a defendant who chooses to participate in the action. See, e.g., Christensen v. Ellsworth, 162 Wn.2d 365, 372, 173 P.3d 228 (2007); Hous. Auth. of City of Everett v. Terry, 114 Wn.2d 558, 564-65, 789 P.2d 745 (1990). The court has done so notwithstanding article IV, section 6 of the Washington Constitution, which confers original jurisdiction over unlawful detainer actions on the superior court, and notwithstanding the fact that RCW 59.12.050 provides, without qualification, that "[t]he superior court of the county in which the property or some part of it is situated shall have jurisdiction of proceedings under this chapter." However, even if we question the wisdom of the pronouncements in Christensen and Terry, we are bound to faithfully apply those decisions. Green v. Normandy Park, 137 Wn. App. 665, 691-92, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008). Therefore, because it is a matter pertaining to subject matter jurisdiction, the Millers may raise the issue of service of notice for the first time on appeal. RAP 2.5(a).
RCW 59.12.040 establishes the methods for effecting service of notice and further provides that proof of service may be made by affidavit, as in other civil actions. Jahed concedes that he did not file any proof of service in the trial court. He maintains, however, that his failure to do so does not divest the trial court of jurisdiction. For this proposition, he relies on CR 4(g)(7), which provides that "[f]ailure to make proof of service does not affect the validity of service." Jahed is correct that "[i]t is the fact of service that confers jurisdiction, not the return." Williams v. S.S. Mut. Underwriting Ass'n, 45 Wn.2d 209, 227, 273 P.2d 803 (1954). Defects in a return of service or an affidavit may be remedied. In re Estate of Palucci, 61 Wn. App. 412, 416, 810 P.2d 970 (1991) (citing Williams, 45 Wn.2d at 227). But Jahed cannot avail himself of CR 4(g)(7)'s safety valve. This provision rescues defective proof of service only when the plaintiff has in fact served the defendant and it is merely the formal proof that suffers from some flaw. CR 4(g)(7) presupposes actual service. Here, other than Jahed's bare assertion that he served the Millers with notice, nothing in our record indicates that he actually accomplished service. Thus, we cannot determine whether Jahed accomplished proper service, a prerequisite to the court exercising its authority in this matter.
Dismissal at this stage, however, would be improper. The issue of whether a plaintiff has made proper service is properly raised in the nascent stages of litigation, when there is an opportunity for the plaintiff to establish in the trial court that he effected service. By waiting to raise this issue on appeal, the Millers deprived Jahed of an opportunity to respond to their assertions with evidence, if any is available. Accordingly, remand is required for a factual determination of whether Jahed served the Millers as required by RCW 59.12.030(3).
VI
The Millers also contend that the show cause hearing held in the second action was inadequate because the trial court declined to examine Jahed and refused to allow their counsel to do so. We agree.
A trial court's refusal to allow testimony is reviewed for abuse of discretion. Goodell v. ITT-Federal Support Serv., Inc., 89 Wn.2d 488, 493, 573 P.2d 1292 (1978). "A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds." Wash. State Phys. Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). A trial court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
The Residential Landlord-Tenant Act provides that at the show cause hearing on a landlord's motion for a writ of restitution, the tenant "may answer, orally or in writing, and assert any legal or equitable defense" and further provides that "[t]he court shall examine the parties and witnesses orally to ascertain the merits of the complaint and answer." RCW 59.18.380.
The show cause hearing held herein suffered from the defects fatal to the show cause hearing addressed in Leda v. Whisnand, No. 61639-1-I, slip op. at 13-15 (2009) (published opinion), filed this day. Accordingly, remand for proceedings that afford the Millers the protections set forth in RCW 59.18.380 is required.
VII
The Millers also contend that the late fee provision in their lease is an unenforceable penalty, rather than a valid liquidated damages clause.
Jahed argues, however, that RAP 2.5 bars the Millers from raising this issue on appeal because they did not raise it in the trial court. Because the show cause hearing suffered from fundamental procedural defects requiring remand, we need not resolve the issue of whether the late fee provision is valid. Further, because of the procedural inadequacy of the summary proceeding previously held, we determine that the law of the case doctrine will not bar the Millers from litigating this issue on remand.
VIII
The Millers further contend that the trial court erred in the second action by awarding attorney fees to Jahed without entering necessary written findings of fact and conclusions of law. "[F]indings of fact and conclusions of law are required to establish" an adequate record on review to support an attorney fee award. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998). Because Jahed is no longer a prevailing party, we order the vacation of the fee award. We are confident that appropriate findings and conclusions will accompany the entry of any subsequent attorney fee award.
IX
Finally, both parties request an award of attorney fees on appeal. This would be precipitous. See Home Realty Lynnwood, Inc. v. Walsh, 146 Wn. App. 231, 242, 189 P.3d 253 (2008). In the first action, the trial court has yet to exercise its discretion in ruling on the Millers' request for an award of fees. Neither party has yet prevailed in the second action.
Reversed and remanded.
WE CONCUR: