HOUSING AUTHORITY CITY OF PASCO AND FRANKLIN CTY. v. Pleasant

• Decision Date: 15 March 2005
• Docket Number: No. 22687-5-III.,22687-5-III.
• Citation: 109 P.3d 422,126 Wash.App. 382
• Court: Washington Court of Appeals
• Parties: HOUSING AUTHORITY OF the CITY OF PASCO AND FRANKLIN COUNTY, Respondent, v. Ianthia PLEASANT, Appellant.

109 P.3d 422

126 Wash.App. 382

HOUSING AUTHORITY OF the CITY OF PASCO AND FRANKLIN COUNTY, Respondent, v. Ianthia PLEASANT, Appellant.

No. 22687-5-III.

Court of Appeals of Washington, Division 3, Panel Seven.

March 15, 2005.

George Fearing, Attorney at Law, Kennewick, WA, for Appellant.

Kenneth J. Diamond, Lisa Marie Vanderford-Anderson, Attorneys at Law, Seattle, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 Ianthia Pleasant was evicted from public housing administered by the Housing Authority of the City of Pasco and Franklin County (Housing Authority) for lease violations. In the Housing Authority's ensuing unlawful detainer action, the trial court issued a writ of restitution of premises at a show cause hearing. Ms. Pleasant vacated the premises and appealed. She contends the writ issued on insufficient and incompetent evidence and she was entitled to a trial. We agree, reverse, and remand for trial.

FACTS

¶ 2 On July 18, 2003, the Housing Authority filed an eviction summons and complaint for unlawful detainer against Ms. Pleasant. The complaint alleged two bases for eviction involving lease violations. The first charged a variety of lease violations over the preceding year, including the most recent failure of a semiannual inspection of the premises. The Housing Authority served a 30-day notice terminating tenancy on March 27. An informal hearing through the agency was decided against her. Her request for a formal hearing was denied as untimely. The second basis for eviction alleged a lease violation for criminal activity for which Ms. Pleasant was served a three-day notice to terminate. The Housing Authority contended that Ms. Pleasant engaged in prohibited criminal activity, as evidenced by her arrest on May 21, 2003. She was charged with third degree assault of a child when she struck her 13-year-old son several times with a plastic clothes hanger because he failed to obey her. The charge was reduced to fourth degree assault, a misdemeanor, on May 27.

¶ 3 Ms. Pleasant filed a written answer to the complaint and a counterclaim. She denied the contentions and alleged harassment and/or discrimination on the basis of disability and race.

¶ 4 On December 5, 2003, the Housing Authority filed a motion for an order to show cause why a writ of restitution should not issue. The court entered an order to show cause on December 8. A show cause hearing was scheduled for December 22. Ms. Pleasant opposed the issuance of the writ by filing an affidavit in which she challenged the facts for the Housing Authority's first basis for eviction (the multiple violations). A friend of Ms. Pleasant's also filed an affidavit that contradicted these facts. On the second basis for eviction (the assault arrest) she countered that the misdemeanor to which she pleaded guilty while acting pro se was not a crime for which eviction was appropriate as it did not endanger other tenants. She also pointed out she had never had her children taken away because of abuse.

¶ 5 On December 22, 2003, the trial court issued a writ of restitution. The judge took no testimony. On December 23, the sheriff served a notice to terminate by December 31 or face forceful eviction. Ms. Pleasant vacated and filed this appeal. She seeks to regain housing through the Housing Authority's facilities.

DISCUSSION

STANDARD OF REVIEW

¶ 6 When the record consists entirely of written material, an appellate court stands in the same position as the trial court and reviews the record de novo. Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 252, 884 P.2d 592 (1994); Amren v. City of Kalama, 131 Wash.2d 25, 32, 929 P.2d 389 (1997). Additionally, the dispositive issue in this case is the procedural requirements under the unlawful detainer statutes. Issues of statutory interpretation are reviewed de novo. Hartson P'ship v. Goodwin, 99 Wash.App. 227, 231, 991 P.2d 1211 (2000).

MOOTNESS

¶ 7 "`A case is technically moot if the court cannot provide the basic relief originally sought, or can no longer provide effective relief.'" Josephinium Assocs. v. Kahli, 111 Wash.App. 617, 622, 45 P.3d 627 (2002) (quoting Snohomish County v. State, 69 Wash.App. 655, 660, 850 P.2d 546 (1993)). The Housing Authority argues that since Ms. Pleasant does not have possession of the premises, the appeal is moot. However, the law draws a distinction between possession and the right of possession. Kessler v. Nielsen, 3 Wash.App. 120, 126, 472 P.2d 616 (1970).

¶ 8 "`[O]ne may have a right to the possession as against another who has the possession, as in the simple case of one who has been ousted from the land by another.'" Id. (quoting 1 H. TIFFANY, REAL PROPERTY § 20 (B. Jones 3d ed.1939)). In an unlawful detainer context, it is the right to possession that is pivotal, not mere present possession. Little v. Catania, 48 Wash.2d 890, 893, 297 P.2d 255 (1956); First Union Mgmt., Inc. v. Slack, 36 Wash.App. 849, 853-54, 679 P.2d 936 (1984); Motoda v. Donohoe, 1 Wash.App. 174, 175, 459 P.2d 654 (1969). When the right to possession is at issue, the issue is not moot. Lochridge v. Natsuhara, 114 Wash. 326, 330, 194 P. 974 (1921). The Washington Supreme Court has specifically held that an unlawful detainer case is not moot simply because the tenant does not have possession of the premises at the time of appeal. Id."[E]ven though the [landlords] were in possession at the time of the appeal, the [tenants] who were still asserting their possessory right had to be precluded as to this right. The action was not moot until this issue had been determined vis-a-vis the parties." Kessler, 3 Wash.App. at 126, 472 P.2d 616. Here, Ms. Pleasant continues to assert a right to possession. The issue is therefore not moot.

¶ 9 The Housing Authority relies on Josephinium, 111 Wash.App. 617, 45 P.3d 627. In that case, Division One of this court, without discussion or citation to authority, held that the tenant's evacuation during the pendency of the action mooted the issue. Id. at 622, 45 P.3d 627. Neither the legal nor the factual basis upon which Division One determined the issue to be moot is clear. The court did not consider the tenant's right to possession when addressing mootness.¹ Nonetheless, Josephinium is distinguishable on its facts. The unlawful detainer in Josephinium was based upon the landlord's refusal of the tenant's tender of a reduced rent payment. The case before us does not deal with failure to pay rent. Additionally, the court in Josephinium appears to have decided the issue was moot because the tenant vacated voluntarily, i.e., without compulsion of a writ. See Kato v. Union Oil Co., 91 Wash. 302, 157 P. 688 (1916) (holding that return of property was not a voluntary satisfaction of the judgment even where appellant neither sought stay of execution nor gave supersedeas bond); Proctor v. Appleby, 110 Wash. 403, 411-12, 188 P. 481 (1920) (holding that surrender of stock in compliance with judgment before appeal perfected did not amount to a cessation of the controversy thereby barring appeal); Josevig-Kennecott Copper Co. v. James F. Howarth Co., 261 F. 567, 568 (9th Cir.1919) (applying Washington law and determining that where stock was transferred to the plaintiff after time that supersedeas bond could be had, and transfer was made under threat of contempt, transfer did not affect right to appeal). That is also not the case here. ¶ 10 Once an unlawful detainer action is commenced and the defendant does not concede the right to possession, the defendant has the right to have the issue determined. Kessler, 3 Wash.App. at 126-27,472 P.2d 616. A tenant's relinquishment of the property does not necessarily mean the right to possession is undisputed. Sullivan v. Purvis, 90 Wash.App. 456, 459, 966 P.2d 912 (1998). An issue is not moot if a court can still provide effective relief. State v. Turner, 98 Wash.2d 731, 733, 658 P.2d 658 (1983). Here, the right to possession is disputed. We can determine whether Ms. Pleasant's right to possession was wrongfully terminated by the improper issuance of a writ and provide relief by restoring her possession.

BOND REQUIREMENT

¶ 11 The Housing Authority argues that since Ms. Pleasant did not seek to retain possession of the premises and post a bond pending appeal, she has no right to appeal. RCW 59.18.390(1) provides that within three days of the service of the writ of restitution, the tenant

may execute to the plaintiff a bond to be filed with and approved by the clerk of the court in such sum as may be fixed by the judge, with sufficient surety to be approved by the clerk of the court, conditioned that they will pay to the plaintiff such sum as the plaintiff may recover for the use and occupation of the premises, or any rent found due, together with all damages the plaintiff may sustain by reason of the defendant occupying or keeping possession of the premises.

(Emphasis added.) The legislature's use of "may" instead of "must" makes it permissive. Canyon Lumber Co. v. Sexton, 93 Wash. 620, 626, 161 P. 841 (1916).

¶ 12 RCW 59.12.200 provides that "if the [tenant] appealing desires a stay of proceedings pending review, the [tenant] shall execute and file a bond." (Emphasis added.) RCW 59.12.220 provides that if a writ of restitution has been issued and executed, then the posting of the bond entitles the tenant to be restored to possession of the premises, where the tenant is entitled to remain until the appeal is determined. A bond is required only if the tenant wishes to continue to occupy the premises pending trial. It is to secure the landlord against losses during the pendency of the proceedings when the tenant continues to occupy the premises. RCW 59.18.390.

¶ 13 The bond need only be filed if the tenant seeks a stay pending review. A bond is not a jurisdictional condition precedent to the maintenance of an appeal under the unlawful detainer statutory scheme.

SUMMARY PROCEEDINGS FOR PENDENTE LITE WRIT

¶ 14 Since the dispute...