Stephanus v. Anderson, 7563-2-I

Citation613 P.2d 533,26 Wn.App. 326
Decision Date02 June 1980
Docket NumberNo. 7563-2-I,7563-2-I
PartiesPaul C. STEPHANUS and Barbara Stephanus, his wife, Respondents, v. Bettina ANDERSON and Mark Bussell, Appellants.
CourtCourt of Appeals of Washington

Walter G. Palmer, Baker & Palmer, Donald S. Cooper, Bogle & Gates, Seattle, for appellants.

Bruce A. Wolf, Kargianis & Austin, Seattle, for respondents.

RINGOLD, Judge.

Bettina Anderson and Mark Bussell appeal a judgment of unlawful detainer. They raise statutory and constitutional challenges to the trial court's decision to strike their affirmative defense of retaliatory eviction.

Anderson and Bussell are former month to month tenants of the Malloy Apartments in Seattle. On October 9, 1978, they organized a meeting of tenants to protest alleged violations of the Residential Landlord Tenant Act of 1973, RCW 59.18 (the Act), by their landlord, Paul Stephanus. After two meetings were held, Stephanus reviewed the situation and decided to evict Anderson and Bussell. In compliance with RCW 59.18.200(1), 1 he served notices on January 9, 1979, terminating their tenancies as of the end of that month. They refused to vacate the premises and on February 8, 1979, Paul and Barbara Stephanus 2 commenced this unlawful detainer action.

In their answer, Anderson and Bussell asserted as affirmative defenses that the evictions were retaliatory under the Act and Seattle Housing Code § 4.17. Stephanus moved pursuant to CR 12(f) to strike these affirmative defenses, and the trial court granted the motion, concluding the allegations did not state a defense. Based on the proper notice terminating the tenancies and the tenants' refusal to

vacate, the trial court entered judgment for Stephanus, issued a writ of restitution entitling him to the aid of the sheriff to obtain immediate possession of the premises and awarded damages for rent accruing since January 31, 1979.

PROHIBITED RETALIATORY CONDUCT UNDER THE ACT

Anderson and Bussell allege they were evicted in retaliation for their assertion of their rights under the Act. They contend that RCW 59.18.240(2) and .250 authorize this retaliatory eviction defense. Stephanus responds that RCW 59.18.240(2)(1) expressly and unambiguously exempts evictions pursuant to RCW 59.18.200 from the prohibition against retaliatory action.

RCW 59.18.240 reads:

So long as the tenant is in compliance with this chapter, the landlord shall not take or threaten to take reprisals or retaliatory action against the tenant because of any good faith and lawful:

(1) Complaints or reports by the tenant to a governmental authority concerning the failure of the landlord to substantially comply with any code, statute, ordinance, or regulation governing the maintenance or operation of the premises, if such condition may endanger or impair the health or safety of the tenant;

(2) Assertions or enforcement by the tenant of his rights and remedies under this chapter.

"Reprisal or retaliatory action" shall mean and include but not be limited to any of the following actions by the landlord when such actions are intended primarily to retaliate against a tenant because of the tenant's good faith and lawful act:

(1) Eviction of the tenant other than giving a notice to terminate tenancy as provided in RCW 59.18.200 ;

(2) Increasing the rent required of the tenant;

(3) Reduction of services to the tenant;

(4) Increasing the obligations of the tenant.

(Italics ours).

We agree with Stephanus that the plain words of RCW 59.18.240 state that a tenancy terminated pursuant to RCW 59.18.200 is not subject to the prohibition against retaliatory eviction. The definition of the prohibited Anderson and Bussell argue that we are not bound by this exception because the definition allows a finding of retaliation for circumstances not listed in the statute. They contend the sole purpose of the list and the exception is to define conduct which can be presumed retaliatory under RCW 59.18.250.

"REPRISAL OR RETALIATORY ACTION" INCLUDES RETaliation by eviction but also includes an express exception for an eviction pursuant to RCW 59.18.200.

RCW 59.18.250 reads:

Initiation by the landlord of any action listed in RCW 59.18.240 within ninety days after a good faith and lawful act by the tenant as enumerated in RCW 59.18.240, or within ninety days after any inspection or proceeding of a governmental agency resulting from such act, shall create a rebuttable presumption affecting the burden of proof, that the action is a reprisal or retaliatory action against the tenant . . . .

It is true that the examples in RCW 59.18.240 (section 24 of the Act) are presumed retaliatory under RCW 59.18.250 (section 25 of the Act). The legislature, however, would have placed these examples in section 25 if that were their only intended meaning. By placing them in section 24, the legislature made them part of the definition of "reprisal or retaliatory action." A contrary conclusion would render their placement into section 24 an unnecessary act. We presume the legislature does not engage in unnecessary or meaningless acts. John H. Sellen Constr. Co. v. Department of Revenue, 87 Wash.2d 878, 558 P.2d 1342 (1976).

We must construe statutes in accordance with the intent of the legislature. Janovich v. Herron, 91 Wash.2d 767, 592 P.2d 1096 (1979); State v. Lake City Bowlers' Club, Inc., 26 Wash.2d 292, 173 P.2d 783 (1946). The legislature authoritatively expresses its intent and binds the courts when it defines its terms. Seattle v. State, 54 Wash.2d 139, 338 P.2d 126 (1959). The legislature's definition of "reprisal or retaliatory action" manifests its intent to permit evictions pursuant to RCW 59.18.200 without giving tenants

the protection of RCW 59.18.240. Supporting our decision is the view of the Supreme Court in Washington Ass'n. of Apartment Ass'ns., Inc. v. Evans, 88 [613 P.2d 537] Wash.2d 563, 570, 564 P.2d 788, 793 (1977), that section 24 of the Act applies to "evictions excluding those provided in section 20" (codified at RCW 59.18.200). We find further support for our view in the unsuccessful effort during the 1980 legislative session to enact HB 614. The proponents of the bill intended to eliminate the exception by striking all of the language following "(e)viction of the tenant" in RCW 59.18.240(2)(1). See House of Representatives Transcript of Proceedings, HB 614, 46th Leg. (Feb. 4, 1980).

EQUITABLE DEFENSES

Anderson and Bussell next contend that retaliatory eviction is an equitable defense allowed by RCW 59.18.400 even if RCW 59.18.240 dos not expressly prohibit the landlord's conduct in this case. They rely upon the last sentence of RCW 59.18.400 which states that "(t)he defendant in his answer may assert any legal or equitable defense or set-off arising out of the tenancy." Similar language appears in the first sentence of RCW 59.18.380.

Even prior to the passage of the Act, we recognized that tenants could raise affirmative equitable defenses to unlawful detainer actions. Motoda v. Donohoe, 1 Wash.App. 174, 459 P.2d 654 (1969). The equitable defense of retaliatory eviction, however, does not arise spontaneously whenever it seems "equitable" to recognize it. It must be premised upon an established substantive legal right. Motoda at 175, 459 P.2d 654. The court in Motoda held that retaliatory eviction was not a cognizable equitable defense because the required substantive legal right did not exist.

The State of Washington, in its amicus curiae brief, argues that the necessary substantive right can now be found in RCW 59.18.020, which reads:

Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an Contending that a tenant now has a substantive right to good faith treatment by the landlord, the State argues that the denial of this right can be remedied by allowing the equitable defense of retaliatory eviction. Assuming, without deciding, that retaliatory eviction deprives a tenant of a substantive legal right under RCW 59.18.020, that assumption creates a conflict between RCW 59.18.020 and RCW 59.18.240. The latter statute exempts from prohibition that conduct which we have assumed is barred by RCW 59.18.020. To the extent these two sections conflict, the one which treats the subject matter in a more specific manner will prevail. Pannell v. Thompson, 91 Wash.2d 591, 589 P.2d 1235 (1979); Knowles v. Holly, 82 Wash.2d 694, 513 P.2d 18 (1973). The obligation of good faith applies to all conduct under RCW 59.18. The much narrower application of the exemption from the prohibition on retaliatory evictions makes it the more specific of the two sections. We cannot use the good faith duty as the substantive legal right necessary for fashioning an equitable defense because the more specific conflicting provision in RCW 59.18.240 controls.

obligation of good faith in its performance or enforcement.

SEATTLE HOUSING CODE

Anderson and Bussell next contend that Seattle Housing Code § 4.17(4) prohibits the retaliatory eviction alleged in this case and that the ordinance can be used as the substantive legal right necessary for an equitable defense under RCW 59.18.400.

The relevant portion of the ordinance reads:

It is unlawful for the owner of any building for the purpose of harassing, punishing or retaliating against the tenant thereof to interfere with the peaceable possession of the tenant by committing any of the following acts:

(4) Evicting, increasing rent, or otherwise imposing, threatening or attempting any punitive measure against a tenant for the reason that the tenant has in good faith (Italics ours).

reported violations of this Code or otherwise exercised or attempted to exercise[613 P.2d 538] his legal rights in relation to such building . . . .

This ordinance, among other things, prohibits any eviction which is instituted for the reason that the tenant has in good...

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