Housing Author. of City of Everett v. Kirby

• Court: Washington Court of Appeals
• Writing for the Court: Leach
• Citation: Housing Author. of City of Everett v. Kirby, 226 P.3d 222, 154 Wn. App. 842 (Wash. App. 2010)
• Decision Date: 08 March 2010
• Docket Number: No. 62052-5-I.
• Parties: HOUSING AUTHORITY OF the CITY OF EVERETT, a public body, corporate and politic, Respondent, v. Carroll KIRBY, and all other persons residing in the premises described herein, Appellant.

226 P.3d 222

154 Wn. App. 842

HOUSING AUTHORITY OF the CITY OF EVERETT, a public body, corporate and politic, Respondent, v. Carroll KIRBY, and all other persons residing in the premises described herein, Appellant.

No. 62052-5-I.

Court of Appeals of Washington, Division 1.

March 8, 2010.

Scott R. Peterson, Attorney at Law, Seattle, WA, Michael David Kinkley, Michael D. Kinkley PS, Spokane, WA, for Appellant.

Lorna Sue Corrigan, Attorney at Law, Everett, WA, for Respondent.

LEACH, J.

¶ 1 Carroll Kirby appeals the superior court's order dismissing without prejudice the residential unlawful detainer action brought by the Housing Authority of the City of Everett (EHA), arguing that the court should have dismissed the action with prejudice. Kirby also appeals the court's orders denying his requests for attorney fees. Because the superior court lacked authority to proceed under the unlawful detainer statute, we hold that it was precluded from making any ruling other than dismissal without prejudice. We further hold that of the provisions on which Kirby relies, only RCW 4.84.080 authorizes any fee award in this case. Accordingly, we reverse the portion of the court's ruling regarding RCW 4.84.080 and remand to the trial court to award Kirby statutory attorney fees of $200. We otherwise affirm the trial court.¹

FACTS

¶ 2 Kirby rented an apartment from EHA for $530 per month. When he failed to pay rent in May 2008, EHA served him with a three-day notice to pay rent on May 7, 2008. Kirby did not respond, and EHA filed and later served him with a summons and a complaint for unlawful detainer in Snohomish County Superior Court on May 27, 2008. The summons, however, stated that Kirby could respond to the complaint only by personal delivery.

¶ 3 On June 9, 2008, Kirby filed an answer to the complaint and a motion to dismiss the action under CR 12(b)(1). In his answer, Kirby admitted his failure to pay rent but stated that he was "unable to admit or deny anything related to any notices" and denied he was in unlawful detainer. In his motion, Kirby requested dismissal for lack of subject matter jurisdiction because the summons failed to notify Kirby that he could respond alternatively by mail or facsimile as required by RCW 59.18.365.² He also asked that "discovery be allowed to continue so that Carroll Kirby can obtain evidence to support his claim that this is a frivolous suit under RCW 4.84.185." Kirby further informed the court that he would "be bringing a motion for reasonable attorneys' fees under the lease agreement between the parties, statutory attorneys' fees under RCW 59.18; and, RCW 4.84.250, as the prevailing party in an action for less than $10,000; and for any other relief available under the civil rules or Revised Code of Washington."

¶ 4 When counsel for EHA, Lorna Corrigan, received Kirby's motion, she immediately called Kirby's counsel, Scott Peterson. Corrigan suggested that Peterson stop incurring fees until she could discuss the jurisdictional issues with her client. Peterson said that he had already prepared interrogatories and planned to mail them. He faxed Corrigan a letter restating his intention.

¶ 5 On June 17, 2008, Corrigan wrote to Peterson, stating that she could enter into an agreed order to dismiss "provided that the dismissal is without prejudice, and that the order does not purport to retain jurisdiction in the court for any purpose, including for the purposes of the conduct of discovery, or for motions, such as for attorney's fees." Corrigan also filed a reply to Kirby's motion to dismiss on June 23, 2008, stating that the EHA "does not oppose the Defendant's motion to dismiss pursuant to CR 12(b)(1) for lack of subject matter jurisdiction; provided that the dismissal is without prejudice."

¶ 6 On June 26, 2008, Kirby filed a response, requesting that the court enter an order of dismissal with prejudice. He reasoned that

[t]he entire [unlawful detainer] proceeding is solely concerning an attempt by the landlord to wrest possession of the residence from the possession of the tenant. If the unlawful detainer is dismissed, the landlord has failed to obtain possession (the sole issue in the lawsuit) so a dismissal necessarily terminates the action and precludes refilling [sic] based on that statutory notice.

¶ 7 At a hearing on June 27, 2008, a commissioner dismissed the case without prejudice to refile under a new cause number, based on the defective summons.

¶ 8 On July 7, 2008, Kirby filed a motion for attorney fees based on RCW 4.84.250 and .270, RCW 4.84.330 and judicial estoppel, RCW 4.84.080, and RCW 59.18.290(1) and (2). The motion was supported by the declarations of Peterson and Michael Kinkley. In these declarations, counsel for Kirby estimated that they had spent a combined total of 20.9 hours in preparing Kirby's defense and requested $4,981.50 in attorney fees and costs for their services, which included the personal delivery of documents.

¶ 9 The next day, the EHA filed a second unlawful detainer action against Kirby under a separate cause number. This action was based on Kirby's failure to pay rent for May and June 2008 after he was served with a notice on June 27, 2008.

¶ 10 At a hearing on July 16, 2008, a commissioner denied Kirby's request for attorney fees in the first unlawful detainer action because the action was "dismissed for lack of subject matter jurisdiction on June 27, 2008 ... there is no ongoing jurisdiction to raise a new issue post dismissal."

¶ 11 On July 25, 2008, Kirby filed a notice of appeal from the order of dismissal without prejudice and from the order denying his request for fees.

¶ 12 Three days later, Kirby filed a motion requesting attorney fees for a frivolous lawsuit under RCW 4.84.185 and CR 11. Following a hearing on August 11, 2008, the commissioner also denied this request, stating, "RCW 4.84.185 and CR 11 do not confer ... post dismissal subject matter jurisdiction upon the Court in a case dismissed for lack of subject matter jurisdiction." The court further ruled, "Should through revision or appeal it be determined that RCW 4.84.185 or CR 11 confers subject matter jurisdiction ..., this Court concludes the original action was not frivolous as both non-payment of rent and possession of the premises was admitted in Defendant's answer." In addition, the court concluded that "[t]here is [an] insufficient factual basis to support an award of fees against Plaintiff pursuant to RCW 4.84.185 and CR 11."

¶ 13 On August 22, 2008, Kirby filed a supplemental notice of appeal from the second order denying his request for fees and sanctions.

STANDARD OF REVIEW

¶ 14 The question of the scope of relief granted by the superior court in this case—specifically, the order of dismissal without prejudice—is a question of law. Questions of law are reviewed de novo.³

¶ 15 We review a trial court's denial of a motion for attorney fees for abuse of discretion.⁴ We use the same standard to review its refusal to award sanctions under either CR 11 or RCW 4.84.185.⁵ "`A trial court abuses its discretion when it bases its denial on untenable grounds or reasons.'"⁶ "But where the meaning of an attorney fee statute is at issue, we review the decision to award or not award attorney fees de novo as a question of law."⁷

ANALYSIS

A. Dismissal Without Prejudice

¶ 16 Kirby contends that, while the superior court lacked jurisdiction over the unlawful detainer action, the court should have entered a dismissal with prejudice. EHA responds that dismissal without prejudice was proper because the court had no authority to make any other rulings.

¶ 17 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."⁸ Any noncompliance with the statutory method of process prevents the superior court from acquiring subject matter jurisdiction over the unlawful detainer proceeding.⁹ Lack of such jurisdiction "renders the superior court powerless to pass on the merits of the case."¹⁰ In this circumstance, dismissal without prejudice is the limit of what a court may do.

¶ 18 By way of analogy, in State v. Northwest Magnesite Co.,¹¹ our Supreme Court held that dismissal without prejudice is the limit of what a court may do when it lacks personal jurisdiction over a party. There, the State of Washington filed an action against Northwest Magnesite Company, a Washington corporation, and two foreign corporations to recover royalties from the sale of minerals mined from public land leased to the company.¹² Our Supreme Court concluded that the trial court lacked personal jurisdiction over the two foreign corporations and therefore "had no power to pass upon the merits of the state's case as against those parties" and could only dismiss the case without prejudice.¹³

¶ 19 In an attempt to distinguish Magnesite, Kirby points out that in this case EHA cannot refile the action under the same cause number. This distinction is not a difference that renders Magnesite inapposite. Like the trial court in Magnesite, the superior court here lacked power to decide the merits of the case. Thus, it was precluded from making any rulings regarding the merits of the litigation other than dismissal without prejudice.

¶ 20 Kirby claims that Escude v. King County Public Hospital District No. 2,¹⁴ supports his position. That case involved a plaintiff's voluntary dismissal under CR 41, where the court, acting as a court of general jurisdiction, had both personal and subject matter jurisdiction, but the statute of limitations had run.¹⁵ Therefore, the court had authority to decide the issues presented to it. Here, in contrast, EHA did not move to voluntarily dismiss the action, and the superior court, sitting as a special statutory tribunal, lacked authority to proceed under the...