Curry v. Vancouver Hous. Auth.
| Decision Date | 14 June 2022 |
| Docket Number | 55431-3-II |
| Parties | KENNETH TAYLOR CURRY, Appellant, v. VANCOUVER HOUSING AUTHORITY, and ROY JOHNSON in his Official and his Private Capacity, Joint and Several, Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Kenneth Curry appeals a trial court order granting summary judgment and dismissing his lawsuit with prejudice. In addition to this case, Curry filed two prior lawsuits against the Vancouver Housing Authority (VHA) and its Executive Director Roy Johnson (collectively Respondents) arising from his participation in the Section 8 Housing Program and a reasonable accommodation request. After his first lawsuit was dismissed for lack of jurisdiction, he filed the second lawsuit in federal court, which was dismissed on summary judgment. Curry then filed the current lawsuit in superior court. The superior court granted the Respondents' motion for summary judgment, dismissing the case with prejudice on statute of limitations and res judicata grounds.
On appeal Curry argues that (1) the trial court erred in refusing to review the VHA's finding that Curry posed criminal or violent threat, (2) the VHA violated Curry's due process rights by denying his participation in the Section 8 Housing Program, (3) the VHA lacked subject matter jurisdiction to find Curry as a person posing a criminal threat, (4) the trial court erred in ordering Curry to pay Respondents' attorney fees, (5) the VHA administrative plan section III(C) is unconstitutionally vague, and (6) the VHA denied Curry equal protection by discriminating against him based on his disability.
The Respondents argue that Curry's appeal should be dismissed because the statute of limitations and res judicata bar the suit.
We do not address Curry's substantive arguments, but instead agree with the Respondents and affirm the trial court's summary judgment and dismissal with prejudice.
The VHA is a local public housing agency providing subsidized housing in Vancouver, through the U.S. Department of Housing and Urban Development (HUD) Section 8 Housing Choice Vouchers Program.
Curry became eligible for Section 8 housing assistance in August 2014. He initially received a voucher form for a one-bedroom housing unit but desired a two-bedroom voucher, asserting that he is disabled and requires an additional bedroom to accommodate a live-in aide or extended visitor to help care for him. Curry made a reasonable accommodation request based on financial need and to obtain a two-bedroom voucher. The VHA denied Curry's reasonable accommodation request but explained in a letter to Curry that it would reconsider his request if he submitted additional documentation substantiating his claimed disability and need for live-in assistance. The letter also stated that Curry could appeal the denial of his reasonable accommodation request.
After the VHA denied Curry's reasonable accommodation request, Curry met with a VHA employee to discuss his participation in the Section 8 Housing Program and reasonable accommodation request. Curry became agitated during the meeting when the VHA employee tried to conclude the meeting and other VHA employees had to intervene. Curry returned to the office twice over the following two days, and when he became frustrated over how the VHA was handling his participation and accommodation request, he called a VHA employee from the lobby of the office building and threatened her by saying: Clerk's Papers (CP) at 23. The employee notified her supervisor, and VHA staff asked Curry to leave the building and called the police. However, Curry stayed in the parking lot across the street, staring down VHA employees as they left the building.
Curry returned again to the VHA building a few days later and met with the Director of Voucher Programs. After about forty minutes, the VHA's Executive Director, Roy Johnson, informed Curry that he was aware he had threatened VHA employees the prior week and asked him to leave the building.
A day later, Johnson sent Curry a letter stating that the VHA was proposing to deny his continued participation in the Section 8 Housing Program based on his behavior. The letter explained that Curry's threatening behavior and conduct violated the VHA's administrative plan policy. The letter also notified Curry that he had 10 days to request an informal hearing to review the decision terminating his participation the in the Section 8 Housing Program.
Curry requested an informal hearing which was scheduled for December 2014. At the hearing, Curry threatened VHA employees, interrupted witness testimony, and stated that he knew where two VHA employees lived. The hearing officer terminated the hearing because of Curry's disruptive behavior and concluded that Curry violated the VHA's policy by threatening and displaying violent behavior toward VHA personnel. The hearing officer upheld the VHA's proposed denial of Curry's participation in the Section 8 Housing Program.
In February 2016, Curry filed a lawsuit against the VHA in Clark County superior court, and the trial court dismissed the case with prejudice.[1] In November 2016, Curry filed a lawsuit against the Respondents in federal court. Curry alleged that the Respondents denied him a two-bedroom housing voucher and rescinded the one-bedroom voucher without due process. Curry's requested relief included restitution and program enrollment; nominal, general, exemplary, and punitive damages; equitable relief and other relief. The district court granted Respondents' motion for summary judgment and dismissed the case with prejudice.
Curry appealed to the United States Court of Appeals for the Ninth Circuit, and the Ninth Circuit affirmed the district court's decision. Curry then petitioned to the United States Supreme Court, which denied review.
In 2019, Curry filed this lawsuit in Clark County superior court, alleging breach of contract, due process violations, and disability discrimination. He again alleged that he was denied his civil rights, and also alleged breach of contract and that he was discriminated against because he is disabled and over 50 years old. He sought restitution for loss of his housing voucher, general, exemplary, and punitive damages, enrollment in the voucher program, and other relief.
Curry served his complaint on Respondents on November 15, 2019. After receiving the complaint, the VHA sent a letter to Curry, urging him to dismiss the lawsuit, citing res judicata, and warning Curry that it would seek CR 11 sanctions.[2] Respondents filed an answer on August 28, 2020. Respondents' answer was the first responsive pleading filed in the lawsuit, and it contained the statute of limitations and res judicata affirmative defenses. The Respondents then moved for summary judgment and sanctions. The trial court granted the VHA's motion for summary judgment and dismissed the lawsuit with prejudice. The court also granted the VHA's request for attorney's fees because Curry brought this suit in violation of CR 11 and prohibited Curry from filing any future action in any state court related to the VHA's termination of Curry's participation in the Section 8 Housing Voucher Program.
Curry appeals the trial court's orders granting summary judgment dismissal of his lawsuit and imposing attorney fees against him.
Respondents argue that the statute of limitations bars all of Curry's causes of action. Curry argues that Respondents waived the statute of limitations defense because they failed to serve him with any responsive pleading asserting the defense. We hold that the statute of limitations bars all of Curry's claims, except his breach of contract claim.
Expiration of the statute of limitations is an affirmative defense. CR 8(c). Because it is an affirmative defense, the defendant bears the burden of proof. Kiona Park Estates v. Dehls, 18 Wn.App. 2d 328, 336, 491 P.3d 247 (2021). When a party fails to plead an affirmative defense in their first responsive pleading, the defense is waived. In re Estate of Palmer, 145 Wn.App. 249, 258, 187 P.3d 758 (2008). An answer to a complaint is due within 20 days after service of the summons and complaint. CR 12(a)(1).
Here, Respondents answered the complaint and asserted the statute of limitations defense. Curry served his complaint on Respondents on November 15, 2019, and Respondents filed an answer on August 28, 2020. Although Respondents did not file their answer within 20 days, Curry fails to cite authority showing that an untimely answer waives an affirmative defense. And, "[w]here a party does not cite to such authority, we assume there is none." Peterson v. Dep't of Labor & Indus., 17 Wn.App. 2d 208, 237, 485 P.3d 338 (2021).
Because Respondents asserted the statute of limitations defense in their first responsive pleading, the defense is not waived.
Curry pleaded various causes of action, including breach of contract, due process violations, and disability discrimination. The trial court's summary judgment order states it dismissed Curry's complaint under the doctrine of res judicata and for violation of the statute of limitations. Curry argues that his contract claim falls under the six-year statute of limitations, and thus his claim is not barred by the statute of limitations. We hold that Curry's breach of contract claim is not barred by the statute of limitations but that his other claims are.
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