Pinkney v. Ayers, 41223

• Decision Date: 19 March 1970
• Docket Number: No. 41223,41223
• Citation: 466 P.2d 853,77 Wn.2d 795
• Court: Washington Supreme Court
• Parties: Ella PINKNEY, Appellant, v. Rose J. AYERS, Respondent.

Page 795

77 Wn.2d 795

466 P.2d 853

Ella PINKNEY, Appellant, v. Rose J. AYERS, Respondent.

No. 41223.

Supreme Court of Washington, En Banc.

March 19, 1970.

James A. Schasre, Spokane, for appellant.

William M. Gerraughty, Spokane, for respondent.

PER CURIAM.

Mrs. Pinkney appeals from a judgment that defined the respective rights in realty possessed by Mrs. Ayers and herself. Appellant contends a prior order of the trial court was res judicata and thus precluded entry of the judgment.

The parties were both unmarried. Appellant became unable to make further payments on a real estate contract covering her home. Respondent agreed to assume the substantial balance due on the contract because of their long friendship. As a result, appellant's interest therein was conveyed to respondent by a quit claim deed and purchaser's assignment of real estate contract. The document provided in part that appellant would have the right to live in the house as long as she wished, without cost.

Respondent moved into the house with her son and two nieces. Shortly thereafter the friendship deteriorated. In May of 1966, appellant filed a complaint that sought to restrain respondent from interfering with appellant's right of occupancy. It also prayed for damages and in the alternative asked that appellant be compensated for her equity in the premises. The complaint was amended early in October of 1966 by increasing the prayer for damages on the theory of an alleged constructive eviction.

Although the trial court did consider the matter on October 6, 1966, it is not clear whether the parties were before the court as a result of the amended complaint or one of appellant's several show cause orders. Nevertheless, the case was not heard on the merits. The attorneys merely presented an agreed order that defined the rights of the respective parties in and to the premises and directed respondent to make certain repairs and alterations.

Shortly after the agreed order was signed, appellant obtained several additional show cause orders each alleging violations of the agreed order by respondent. None was heard. A second amended complaint was filed in February of 1967, reasserting the amended complaint and asking for additional relief including attorney's fees.

Appellant instituted another show cause action in August of 1967. It was heard by a second trial judge who attempted to preserve the status quo until the case could be heard. Again there was no disposition.

A third...