Port of Longview v. International Raw Materials, Ltd.

• Decision Date: 09 July 1999
• Docket Number: No. 23546-3-II,23546-3-II
• Citation: 96 Wn.App. 431,979 P.2d 917
• Court: Washington Court of Appeals
• Parties: PORT OF LONGVIEW, Washington, Respondent, v. INTERNATIONAL RAW MATERIALS, LTD., Appellant.

Page 917

96 Wn.App. 431

979 P.2d 917

PORT OF LONGVIEW, Washington, Respondent, v. INTERNATIONAL RAW MATERIALS, LTD., Appellant.

No. 23546-3-II.

Court of Appeals of Washington,

Division 2.

July 9, 1999.

Ben Shafton, Morse & Bratt, Vancouver, for Appellant.

Donald Lee Donaldson, Darrel S. Ammons, Walstead Mertsching Husemoen Etal, Longview, for Respondent.

HOUGHTON, J.

International Raw Materials, Ltd. (IRM) appeals a trial court order evicting it from

commercial property at the Port of Longview (Port). IRM argues that the trial court erred in striking its affirmative defenses and in granting a prejudgment writ. We reverse and remand for further proceedings.

FACTS

The facts are undisputed. Since 1981, IRM has been both a tenant and a customer of the Port. It operates a bulk loading facility where it loads commodities onto ships bound overseas. Its current lease with the Port expires in 2012. In December 1994, IRM and the Port entered into a second agreement under which IRM rented a small office on the second floor of one of the dock buildings for $150 plus tax per month. Either party, upon 30-days notice, could cancel the agreement.

One of the Port's other customers imports coal tar pitch. In August 1997, IRM obtained the Material Safety Data Sheet on this substance. The document identifies a number of health hazards associated with coal tar pitch. It states that the material contains known carcinogens and the vapors cause moderate to severe irritation of the eyes, nose, throat, and respiratory tract. In liquid form it can cause burning and itching; when burned it can emit hazardous fumes; and long-term exposure has been associated with skin, kidney and lung cancer.

In August 1997, the LONGVIEW DAILY NEWS published an article about the Port's expansion of its importation of coal tar pitch and the economic benefits of doing so. IRM's President, W.P. O'Neill, responded by writing a letter to the newspaper editor in which he expressed his view that "adequate investments ... be made in the proper facilities to ensure the environmentally safe discharge of this product." Kenneth O'Hollaren, Executive Director of the Port, responded to O'Neill's letter, expressing confidence in the Port's procedures for handling coal tar pitch. The LONGVIEW DAILY NEWS published both letters.

On September 12, 1997, O'Neill and others attended a meeting with Port officials to discuss a variety of subjects. At that meeting, O'Neill expressed concern about the safety of his employees who worked in close proximity to the coal tar pitch. Three days later, O'Hollaren sent IRM a letter notifying it that the Port elected to terminate IRM's office rental agreement effective October 16, 1997. In the letter, O'Hollaren said it might be helpful to explain the Port's reasons for the cancellation although the agreement did not require the Port to give a reason. He explained that "given Mr. O'Neill's comments, it would be foolish to continue the present office arrangement and hence this notice to vacate."

IRM did not vacate the office, and in October 1997, the Port filed an unlawful detainer action. After a hearing, the court entered an order denying the request for a writ of restitution and dismissing the complaint.

On November 26, 1997, the Port notified IRM, in writing, that its tenancy was terminated effective December 31, 1997. This notice also informed IRM that the Port had alternate rental space available for it at another location in the Port facility. IRM refused to vacate the office, and on January 7, 1998, IRM tendered its rent for January. ¹

On January 7, 1998, the Port filed another unlawful detainer action, together with a motion for writ of restitution. The same day, the trial court signed a writ of restitution, conditioned upon the Port's posting a $1,000 bond. On January 9, the court entered a writ of restitution commanding the sheriff to deliver possession of the property to the Port on January 15.

On January 12, IRM moved to quash the writ and to raise the amount of the Port's bond. The court increased the Port's bond to $25,000 and allowed IRM to post a counter-bond of $40,000 to prevent execution of the writ. Both parties posted the required bonds and IRM remained in possession of the premises.

On January 14, IRM filed an answer, including affirmative defenses of immunity, under RCW 4.24.510, retaliatory eviction, and retaliatory eviction based upon the exercise of free speech rights. The Port moved to The Supreme Court denied IRM's petition for direct review and transferred the matter to this court.

dismiss the affirmative defenses and for judgment on the pleadings under CR 12. Under CR 12(c), the trial court treated the matter as a motion for summary judgment. And, upon review of the parties' arguments, the trial court dismissed IRM's affirmative defenses, granted the Port's motion for judgment on the pleadings, awarded it $189.10 in costs, and ordered the office space restored to the Port.

ANALYSIS

Standard of Review

The trial court dismissed IRM's affirmative defenses under CR 12(c), treating the matter as a motion for summary judgment under CR 56(c). On review of summary judgment, an appellate court engages in the same inquiry as the trial court. Hill v. J.C. Penney, Inc., 70 Wash.App. 225, 238, 852 P.2d 1111, review denied, 122 Wash.2d 1023, 866 P.2d 39 (1993). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993). The appellate court considers all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Clements, 121 Wash.2d at 249, 850 P.2d 1298. The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Clements, 121 Wash.2d at 249, 850 P.2d 1298.

AFFIRMATIVE DEFENSES

Unlawful Detainer and Retaliatory Eviction

An unlawful detainer action under RCW 59.12 is a summary proceeding designed to facilitate recovery of possession of leased property and, in such a proceeding, the primary issue is the right to possession. Motoda v. Donohoe, 1 Wash.App. 174, 175, 459 P.2d 654 (1969), review denied, 77 Wash.2d 962 (1970); Heaverlo v. Keico Indus., Inc., 80 Wash.App. 724, 733, 911 P.2d 406 (1996) (purpose of unlawful detainer proceeding is to provide "speedy and summary resolution of possession"). In defending against an unlawful detainer action, a tenant may raise affirmative equitable defenses, which include retaliatory eviction. Stephanus v. Anderson, 26 Wash.App. 326, 331, 613 P.2d 533, review denied, 94 Wash.2d 1014 (1980); Motoda, 1 Wash.App. at 175, 459 P.2d 654.

The equitable defense of retaliatory eviction, however, does not arise "whenever it seems 'equitable' to recognize it." Stephanus, 26 Wash.App. at 331, 613 P.2d 533; but cf., Weil v. Kaplan, 175 Misc.2d 482, 670 N.Y.S.2d 666 (N.Y.Sup.App.Term (1997)) (because of equitable nature of defense of retaliatory eviction, no per se rule can be laid down to govern limitations of its applicability). An equitable defense arises only when there is "a substantive legal right, that is, a right that comes within the scope of judicial action, as distinguished from a mere moral right." Motoda, 1 Wash.App. at 175, 459 P.2d 654; see Stephanus, 26 Wash.App. at 331, 613 P.2d 533 (equitable defense must be premised upon an established substantive legal right). Moreover, to assert an equitable defense, the procedure prescribed by statute for the enforcement of the asserted substantive right must be inadequate or the ordinary and usual remedies unavailing. Motoda, 1 Wash.App. at 175, 459 P.2d 654; see Stephanus, 26 Wash.App. at 334, 613 P.2d 533 (equity cannot provide a remedy where legislation expressly denies it). ²

IRM first contends the trial court erred in dismissing as an affirmative defense its claim of retaliatory eviction. According to IRM, the Port's actions in seeking to evict IRM The Port counters that the trial court lacked jurisdiction to consider IRM's affirmative defense of free speech because that issue is unrelated to the rightful possession of the subject property under the parties' commercial lease. The Port contends that such an affirmative defense cannot be asserted, as a matter of law, in an unlawful detainer action in the commercial lease context.

were retaliatory and in violation of its constitutional right to free speech. IRM argues that it should have been entitled to assert its right of free speech as an affirmative defense, as a matter of law.

We agree with IRM and hold that it is entitled to assert its free speech rights under the First Amendment of the United States Constitution as an equitable affirmative defense in the unlawful detainer action because: (1) the speech relates to possession of the subject property; (2) free speech is a substantive legal right worthy of protection in this context; (3) the landlord is a government entity; and (4) IRM is not otherwise in breach of the lease agreement.

The Port claims that the issue of IRM's free speech rights are not related to possession of the leased property. We disagree.

A court presiding over a unlawful detainer action may decide issues related to rightful possession of the subject property. See Young v. Riley, 59 Wash.2d 50, 52, 365 P.2d 769 (1961). Although the court does not sit as a court of general jurisdiction to decide issues unrelated to possession of the subject property, Young, 59 Wash.2d at 52, 365 P.2d 769, it may resolve any issues necessarily related to the parties' dispute over such possession. See First Union Management, Inc. v. Slack, 36 Wash.App. 849, 854, 679 P.2d 936 (1984).

Here, the Port's commercial property leased by IRM is an integral and necessary part of its business operations. IRM's concerns, therefore, about the Port's management of coal tar pitch, which contains toxins and...