Hous. Auth. of The City of Seattle v. Bin

• Decision Date: 06 September 2011
• Docket Number: No. 65003–3–I.,65003–3–I.
• Citation: 260 P.3d 900,163 Wash.App. 367
• Court: Washington Court of Appeals
• Parties: HOUSING AUTHORITY OF the CITY OF SEATTLE, Washington, a public body corporate and politic, Appellant,v.Khadija BIN, Respondent.

163 Wash.App. 367

260 P.3d 900

HOUSING AUTHORITY OF the CITY OF SEATTLE, Washington, a public body corporate and politic, Appellant,

v.Khadija BIN, Respondent.

No. 65003–3–I.

Court of Appeals of Washington, Division 1.

Sept. 6, 2011.

L.J. Brosell, Seattle Housing Authority, Seattle, WA, for Appellant.Eric Dunn, N.W. Justice Project, Seattle, WA, for Respondent.BECKER, J.

[163 Wash.App. 369] ¶ 1 An unlawful detainer action is within the subject matter jurisdiction granted to the superior court by the state constitution. When a superior court dismisses an unlawful detainer action, the reason must always be something other than lack of subject matter jurisdiction. Dismissal of an unlawful detainer action does not deprive the court of the power to make an award of attorney fees. Here, the lease authorized an award of fees to the prevailing party. Because the tenant prevailed by getting the case dismissed, the trial court properly awarded fees to the tenant.

FACTS

¶ 2 The Seattle Housing Authority is a governmental entity that operates low income housing facilities in Seattle. Khadija Bin, a Somali immigrant, rented an apartment from the housing authority. During 2005 and 2006, Bin obtained a reduction in her rent on the basis that her husband was absent. In 2007, she reported to the housing authority that he had returned. The housing authority later decided that Bin had delayed reporting her husband's return in order to prolong the period of reduced rent. She was assessed the sum of $5,867 to make up for the alleged underpayments. In July 2009, the housing authority issued to Bin a 10 day notice to pay $5,867 or vacate the unit. The notice also advised Bin that her lease would in any event not be renewed when it expired on August 31, 2009, because she had persistently failed to provide required information.

¶ 3 Public housing tenants are entitled to a grievance hearing when notified of termination of tenancy. Bin requested a hearing and obtained legal representation. Bin denied that she had deceived the housing authority.

¶ 4 The grievance hearing was originally scheduled for August 10, 2009. Due to Bin's pregnancy, it was rescheduled to September 2. Bin's attorney requested a second continuance to allow time to review discovery. The housing authority continued the hearing to September 8. Bin objected to this date because her attorney would not be available that day. The housing authority refused to change the date.

¶ 5 Bin appeared at the hearing without counsel. She asked the hearing officer for the housing authority, Lawrence Weldon, to continue the case so that her attorney could be present. Weldon called a recess. Without inviting Bin, he went to discuss the matter with the hearings coordinator, Linda Todd. Todd told Weldon that the case should not be continued. Weldon returned and informed Bin he did not have authority to reschedule. The hearing proceeded. Weldon issued a written decision in favor of the housing authority.

¶ 6 The housing authority then sued Bin for unlawful detainer in King County Superior Court. Bin moved for summary judgment to dismiss the action. She argued that Weldon committed error in ruling he had no authority to continue the case and that his conversation with Todd was an improper ex parte contact. Bin, who speaks limited English, also argued that the housing authority violated its own policies and the law by failing to provide her with translations of important documents related to the eviction.

¶ 7 A housing authority must comply with federal regulations and its own grievance procedures before terminating a tenancy. Hous. Auth. v. Saylors, 19 Wash.App. 871, 578 P.2d 76 (1978). Following Saylors, the trial court agreed with Bin on the first two issues and did not reach the remaining issue of document translation.

The person who heard and decided Ms. Bin's grievance was Lawrence Weldon, not Linda Todd.

... However, when Ms. Bin asked for the continuance, Weldon denied the request on the grounds that he lacked the authority to grant it. This ruling was contrary to law and an abuse of discretion because the hearing officer is expressly provided the authority to schedule grievance hearings....

5. Also, the decision to deny the continuance was influenced by information presented to the hearing officer outside the hearing and to which Ms. Bin was not given the opportunity to respond....

6. The failure of the hearing officer to hear and decide her request for a continuance was contrary to law.

7. Therefore, SHA is barred from bringing its unlawful detainer action against Ms. Bin at this time....

....

1. For all of the foregoing reasons, this action is hereby dismissed.

2. The question of whether SHA was required to translate documents into Somali is not reached and not decided.

Order on Motion for Summary Judgment.

¶ 8 Bin's lease contained a prevailing party attorney fees provision: “The prevailing party in any action under this Lease shall be entitled to reasonable costs and attorneys' fees or attorney's fees as provided by law.” The court found Bin was the prevailing party and awarded $7,375 in attorney fees and $1,199.77 in costs. This appeal followed.

AUTHORITY TO AWARD ATTORNEY FEES

¶ 9 The housing authority contends a court may not make an award of attorney fees in an unlawful detainer action where the action is dismissed due to “procedural irregularities in the administrative proceeding.” Brief of Appellant at 8. This argument rests primarily upon Hous. Auth. v. Kirby, 154 Wash.App. 842, 226 P.3d 222, review denied, 169 Wash.2d 1022, 238 P.3d 503 (2010), and cases cited therein.

¶ 10 In Kirby, the procedural irregularity was the housing authority's improperly-worded summons. It failed to notify Kirby that he could respond by mail or by facsimile, wording required by RCW 59.18.365. Kirby moved to dismiss for “lack of subject matter jurisdiction.” The housing authority agreed to a dismissal, but Kirby continued to incur fees. Based on the mistake in the summons, the court dismissed the action without prejudice to refile under a new cause number. When Kirby requested an award of attorney fees, the court denied it on the basis that once the action was dismissed for lack of subject matter jurisdiction, nothing else could be done. Kirby appealed, raising two issues: (1) the dismissal should have been with prejudice, and (2) the court erred in refusing his request for attorney fees. Kirby, 154 Wash.App. at 846–49, 226 P.3d 222.

¶ 11 This court affirmed the decision to dismiss without prejudice, reasoning that the defect in the summons prevented the superior court “from acquiring subject matter jurisdiction” and therefore the court was powerless to do anything but dismiss the action. Kirby, 154 Wash.App. at 850, 226 P.3d 222. This first holding in Kirby will be discussed at greater length below.

¶ 12 The second issue raised by Kirby was the denial of his request for attorney fees. Kirby proposed various statutes under which he argued he was entitled to fees as a prevailing party. This court determined that Kirby was entitled only to statutory attorney fees of $200 under RCW 4.84.080, as the requirements of the other attorney fee statutes were not met. Kirby, 154 Wash.App. at 858, 226 P.3d 222.

¶ 13 Significantly, Kirby did not hold that the trial court was precluded from making any award of attorney fees. Implicit in Kirby is the recognition that a tenant may receive an award of attorney fees as the prevailing party where there is a statute or other authority for such an award, even if the court lacks subject matter jurisdiction in the underlying action. Kirby, 154 Wash.App. at 858, 226 P.3d 222, citing Kalich v. Clark, 152 Wash.App. 544, 550, 215 P.3d 1049 (2009). Here, the award of attorney fees was authorized by the lease. Kirby does not compel reversal of the award of fees.

¶ 14 The housing authority's reply brief shows that its arguments ultimately rest not on Kirby alone, but on a misunderstanding of subject matter jurisdiction that Kirby and some other cases have perpetuated. The Kirby court's premise was that the superior court does not “acquire” subject matter jurisdiction to hear an unlawful detainer action unless the action has been initiated in compliance with statutory requirements. The court evidently felt constrained by case law:

An unbroken line of cases establishes that “[i]n an unlawful detainer action, the court sits as a special statutory tribunal to summarily decide the issues authorized by statute and not as a court of general jurisdiction with the power to hear and determine other issues.” Granat v. Keasler, 99 Wash.2d 564, 571, 663 P.2d 830 [cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 723] (1983). Any noncompliance with the statutory method of process prevents the superior court from acquiring subject matter jurisdiction over the unlawful detainer proceeding. Christensen v. Ellsworth, 162 Wash.2d 365, 372, 173 P.3d 228 (2007).

Kirby, 154 Wash.App. at 850, 226 P.3d 222.

¶ 15 Division Two, on the other hand, recognizes that the state constitution vests the superior court with subject matter jurisdiction in unlawful detainer actions, and its jurisdiction remains constant regardless of procedural missteps by the parties. Tacoma Rescue Mission v. Stewart, 155 Wash.App. 250, 254 n. 9, 228 P.3d 1289 (2010). In Tacoma Rescue Mission, the tenant was served with a termination notice that failed to provide details required by the lease. The trial court denied a motion to dismiss. The Court of Appeals reversed and remanded for dismissal of the action—not because the trial court lacked subject matter jurisdiction, but because the notice was insufficient to permit the action to be maintained. The court explained why it was inaccurate to characterize the issue as a lack of subject matter jurisdiction:

Some cases speak of the trial court lacking jurisdiction to hear unlawful detainer actions, chapter 59.12 RCW, without adequate notice to...