Randy Reynolds & Assocs. v. Harmon

This opinion was
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M»ECOURT.amE OF VMaOMTOM
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TO 1 8 20191
eA'• SupremeCourtCerK
Wf^^BFREME COURT OF THE STATE OF WASHINGTON

RANDY REYNOLDS & ASSOCIATES,
INC. dba REYNOLDS REAL ESTATE,
No. 95575-1
Respondent,
V. En Banc

KASEY HARMON aka KASEY HARMAN,
Any Subtenants, and All Others Acting By Filed MAR 2 8 2019
Or Through Them,

Petitioner.

WIGGINS, J.—Kasey Harmon, a 53-year-old woman in failing health, was

evicted from her home following a default judgment and writ of restitution. During the

eviction, Harmon obtained an ex parte order staying enforcement of the judgment.

The Court of Appeals reversed, concluding that the Residential Landlord-Tenant Act

of 1973(RLTA) prohibited such an order. We hold that the RLTA does not apply to

tenants, like Harmon, who contest entry of a default judgment in unlawful detainer

actions: these actions are governed by the Civil Rules. Accordingly, we reverse the

Court of Appeals decision, including the award of appellate attorney fees and costs to

Reynolds.

FACTS AND PROCEDURAL HISTORY

In February 2016, Harmon began renting an apartment managed by Randy

Reynolds & Associates (Reynolds). On July 11, 2016, Reynolds served Harmon with
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

a notice terminating her tenancy and directing her to vacate the apartment by the end

of the month. Harmon did not leave her home.

On August 15, 2016, Reynolds filed an eviction summons and unlawful detainer

complaint. The summons indicated Harmon must respond in writing to the landlord's

attorney by September 15, 2016, if she wished to defend herself against the lawsuit.

Although Harmon responded to the complaint and sent it to Reynolds' attorney by

certified mail on September 14, the day before the specified deadline, the response

was not timely received.

On September 15, 2016, Reynolds moved for an order of default judgment,

including a writ of restitution against Harmon for failure to appear or defend against

the complaint. The next day, the superior court commissioner entered the default

judgment and granted the writ.

On September 19, the Thurston County sheriff posted the writ at Harmon's

home, requiring her to vacate within 72 hours or be subject to physical eviction. That

same day, Harmon moved ex parte to stay execution of the writ of restitution. The

commissioner granted the stay, finding good cause existed because Harmon alleged

that she answered Reynolds' complaint before the case was filed and default

judgment was entered. A show cause hearing was scheduled for September 23,

2016. The stay order waived any requirement for Harmon to post a bond until a

hearing on the merits of the motion could be held. Harmon did not post a bond.

At the show cause hearing, the commissioner found that Harmon failed to prove

Reynolds received her response before the deadline and thus had no basis to lift the
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

default judgment. The commissioner lifted the stay and entered a judgment with

attorney fees and costs in favor of Reynolds.

On September 29, 2016, the writ was executed. Harmon was evicted.

During the eviction process, Harmon was in crisis. Her health had declined

since moving into her apartment. She suffered left foot neuropathy"" caused by spinal

damage and a groin hernia for which she would undergo surgery and was diagnosed

with heart failure. Harmon lived alone, had no income, received rental assistance,

and had a pending Social Security application.

Although Reynolds prevailed at the trial court and evicted Harmon, the landlord

nevertheless sought appellate review. The Court of Appeals commissioner allowed

Reynolds to "supplement the record with declarations" from two attorneys involved in

the case. Br. of Appellant at 4 n.3 (Wash. Ct. App., No. 49588-1-11). The Court of

Appeals recognized that the issues raised were moot and that it could not offer relief

but reached the merits of the case under the public interest exception. Reynolds v.

Harmon, 1 Wn. App. 2d 239, 244-46, 404 P.3d 602 (2017). The court held, in a

published decision, that the superior court commissioner violated CR 5(a) and RCW

59.18.390(1) by granting the ex parte stay without providing notice to Reynolds and

waiving the bond requirement. Id. at 246-49, 250-52. The court also held the order

improper under the Code of Judicial Conduct. Id. at 250.

^ Merrlam-Webster's Collegiate Dictionary defines "neuropathy" as "an abnormal and
[usually] degenerative state of the nervous system or nerves." Merriam-Webster's
Collegiate Dictionary 781 (10th ed. 1993).
3
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

Throughout the eviction, Harmon was largeiy unrepresented. She again found

herself without counsel at the Court of Appeals. She did not file a brief and her motion

for reconsideration was denied.

Harmon petitioned this court for review. She argued that the issues Reynolds

raised below were moot, the Court of Appeals incorrectly considered evidence from

outside the trial record, and the superior court's inherent equitable authority gave it

the power to issue the order staying execution of the writ of restitution. Reynolds

opposed review and, in the alternative, asked the court to consider whether the waiver

of a bond pending a show cause hearing violated RCW 59.18.390(1). We granted

review of ail issues and asked for supplemental briefing on whether Reynolds qualified

as an aggrieved party pursuant to RAP 3.1. Reynolds v. Harmon, 190 Wn.2d 1019

(2018).

ANALYSIS

1. Although Reynolds lacked standing to appeal, Harmon is an "aggrieved party"
before this court under RAP 3.1

The Rules of Appellate Procedure state that "[o]nly an aggrieved party may

seek review by the appellate court." RAP 3.1. Reynolds was not "aggrieved" and the

Court of Appeals erred by entertaining review. Here, Harmon is aggrieved based on

the judgments against her. She properly sought appellate review. Id.

While RAP 3.1 does not itself define the term "aggrieved," Washington courts

have long held that "[f]or a party to be aggrieved, the decision must adversely affect

that party's property or pecuniary rights, or a personal right, or impose on a party a
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

burden or obligation." In re Parentage ofX.T.L, No. 31335-2-III, slip op. at 17(Wash.

Ct. App. Aug. 19, 2014) (unpublished) http://www.courts.wa.gov/opinions/pdf/

313352.unpub.pdf; State v. Taylor, 150 Wn.2d 599, 603, 80 P.3d 605(2003)(stating

that an aggrieved party is "one whose personal right or pecuniary interests have been

affected"); Sheets v. Benevolent & Protective Order of Keglers, 34 Wn.2d 851, 855,

210 P.2d 690 (1949). A party is not aggrieved by a favorable decision and cannot

properly appeal from such a decision. Paich v. N. Pac. Ry. Co., 88 Wash. 163, 165-

66, 152 P. 719 (1915). "'[T]he mere fact that a person is hurt in his [or her] feelings,

wounded in his [or her] affections, or subjected to inconvenience, annoyance,

discomfort, or even expense by a decree, does not entitle [that party] to appeal from

it.'" Elterich v. Arndt, 175 Wash. 562, 564, 27 P.2d 1102 (1933)(quoting 2 Ruling

Case Law Necessity That Appeliant Be Prejudiced § 34, at 53(1914)).

Reynolds contends that it was aggrieved before the Court of Appeals because

the supplemental judgment of $1,662 awarded by the superior court commissioner

remains unsatisfied. Additionally, because Harmon was not directed to post a bond

under RCW 59.18.390(1), Reynolds asserts it was "deprived" of "a ready means of

satisfying the judgment." Resp't's Suppl. Br. at 1.^

Reynolds' argument is unconvincing. First, it fails to address the fact that

Reynolds prevailed on every issue raised below. At the trial court, the landlord

obtained a defaultjudgment and writ of restitution, obtaining "all of the relief it sought—

2 Both Reynolds' and Harmon's supplemental briefings to this court are titled as respondent's
supplemental briefs. To avoid confusion, I will refer to Harmon as "Petitioner" and Reynolds
as "Respondent"(i.e., Harmon's brief cited as "Petitioner's Supplemental Brief).
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

full rent for August and September and the right to amend the judgment to recoup

damages to the premises that occurred during litigation." Pet'r's Suppl. Br. at 6 (citing

Clerk's Papers (CP) at 20-22). A party is not aggrieved by a favorable decision and

cannot properly appeal from it. Paich, 88 Wash, at 165-66.

Second, Reynolds essentially contends it was inconvenienced because one

method of satisfying a judgment was not imposed. Inconvenience alone is not

sufficient under RAP 3.1. Elterioh, 175 Wash, at 563-64. Reynolds therefore does

not qualify as an "aggrieved party" and had no grounds to appeal. RAP 3.1; Paich, 88

Wash, at 165-66. The Court of Appeals should have dismissed review.

Harmon, however, is aggrieved. RAP 3.1; RAP 13.4(b)(4). The Court of

Appeals reversed the commissioner's stay; the original order was a ruling in Harmon's

favor. See Paich, 88 Wash, at 165-66. In total, Harmon incurred over $4,000 in

judgments against her. These judgments adversely affected her pecuniary rights and

imposed a monetary obligation. Sheets, 34 Wn.2d at 855. Harmon was legally injured

by the Court of Appeals' decision, thus she has standing to seek further appellate

review. RAP 3.1.

2. The Court of Appeals properly applied the substantial public interest exception
to mootness

Harmon contends that the issues raised at the Court of Appeals were moot. As

a general rule, "where only moot questions or abstract propositions are involved, . . .

the appeal, or writ of error, should be dismissed." Sorenson v. City of Bellingham, 80

Wn.2d 547, 558, 496 P.2d 512 (1972); see also Klickitat County Citizens Against
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

Imported Waste v. Klickitat County, 122 Wn.2d 619, 631, 860 P.26 390, 866 P.2d

1256 (1993): State v. Beaver, 184 Wn.2d 321, 330, 358 P.3d 385(2015)('"A case is

technicaily moot if the court can no longer provide effective relief.'" (quoting State v.

Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012))). Reynoids' appeal below was

moot because the stay order was lifted, the unlawful detainer action was successful,

and Harmon was ultimately evicted. The Court of Appeais could offer no relief.

However, even if a case becomes moot, the court has discretion to decide an

appeai if the question is of continuing and substantial public interest. Sorensen, 80

Wn.2d at 558. To determine whether a case presents an issue of continuing and

substantiai public interest, we consider a nonexclusive list of criteria:" '[(1)] the public

or private nature of the question presented, [(2)] the desirabiiity of an authoritative

determination for the future guidance of public officers, and [(3)] the iikeiihood offuture

recurrence of the question.' "Hunley, 175 Wn.2d at 907 (aiterations in originai)

(internal quotation marks omitted) (quoting/n re Pers. Restraint of Mattson, 166

Wn.2d 730, 736, 214 P.3d 141 (2009)). As a fourth factor, courts may aiso consider

the level of adversity between the parties and the quality of the advocacy of the

issues. Hart v. Dep't of Sac. & Health Servs., Ill Wn.2d 445, 448, 759 P.2d 1206

(1988).

The four factors for determining whether a matter meets the public interest

exception to mootness ultimately weigh in favor of deciding this case on the merits.

First, the question of whether the RLTA applies to tenants contesting default

judgments is an issue of statutory interpretation. Matters of statutory interpretation
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

tend to be more public, more likely to arise again, and helpful to public officials.

Procedurally, this case presents issues implicating our rules on appellate procedure

that, like matters of statutory interpretation, are more public in nature. Hart, 111 Wn.2d

at 449; see Jafarv. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013)(we interpret

court rules in the same manner as statutes). Second, our determination of a potential

limitation on ex parte stay orders for writs of restitution and the ability of a

commissioner to waive the filing of a bond under RCW 59.18.390 will guide future trial

and appellate courts. Third, unlawful detainer actions are, unfortunately, routine

occurrences and so similar questions are likely to recur. Fourth, the level of adversity

between the parties favored the landlord.

On balance, the four factors support reaching the merits of this case. Thus, the

Court of Appeals properly applied the substantial public interest exception to

mootness.

3. The Court of Appeals properly considered additional evidence

We next consider Harmon's argument that new evidence considered on appeal

violated the rules of appellate procedure. The Court of Appeals commissioner granted

Reynolds' motion to supplement the record with two declarations from the landlord's

attorneys. See Comm'r's Ruling, Reynolds v. Harmon, No. 49588-1-11(Wash. Ct. App.

Feb. 17, 2017)(permitting declarations from Michael G. Gusa and Mary Ann Strickler).

Harmon asserts that the declarations constitute new evidence outside the record and

should not have been admitted pursuant to RAP 9.10 or 9.11. Surprisingly, Reynolds
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

contends neither rule Is applicable. Reynolds Instead offers RAP 1.2 as the ground

for admitting the declarations. Although RAP 1.2 does not provide a freestanding

mechanism to admit new evidence, Its direction to liberally read these procedural rules

guides our Interpretation of RAP 9.10 and 9.11. In light of RAP 1.2, Reynolds'

declarations were properly admitted.

Turning first to RAP 9.10, a motion to supplement the record under this rule

allows a party to request that additional portions of an already existing trial record be

transmitted to the appellate court. RAP 9.10; Buckley v. Snapper Power Equip. Co.,

61 Wn. App. 932, 941, 813 P.2d 125 (1991). The declarations offered by Reynolds

were not part of the trial record.

Reynolds' motion would have been more properly brought under RAP 9.11.

RAP 9.11 Is a limited remedy under which a court may direct additional evidence be

taken, provided certain prerequisites are met. RAP 9.11(a): State v. Ziegler, 114

Wn.2d 533, 541, 789 P.2d 79 (1990). The rule restricts the use of new evidence to

only Instances when the evidence Is directed to "the merits of the case," among other

requirements. RAP 9.11(a).

The new evidence In Reynolds' declarations does not expressly concern the

merits of Its case. The declarations assert that granting the ex parte stay of the writ of

restitution was likely to recur, one of the criteria for determining whether an Issue Is of

substantial public Interest. This assertion does not Implicate the substantive Issues

but does address the legal question of mootness.
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

A strict reading of RAP 9.11 counsels against application of this rule. However,

it is clear from RAP 1.2 that an appellate court may exercise its discretion to consider

cases and issues on their merits. RAP 1.2(a). In this case, mootness posed a

procedural hurdle to be overcome in order for the Court of Appeals to weigh in on the

substantive questions. To reach the merits of Reynolds' case, as RAP 1.2 directs,

new evidence addressing mootness was required. Reading RAP 9.11 liberally would

permit the introduction of Reynolds' additional evidence. The Court of Appeals did

not err in admitting the declarations.

4. RCW 59.18.390 does not prohibit the stay of a writ of restitution after entry of a
default judgment

a. Residential Landlord Tenant Act, ch. 59.18 RCW

Turning now to the merits, Harmon argues that RCW 59.18.390 does not limit

the ability of a court to stay execution of a writ of restitution after a default judgment is

entered. Central to Harmon's argument is the procedural posture of her case, namely,

that subsection .390(1) applies to situations in which a tenant seeks to remain in a

premises after a writ of restitution is issued and prior to a trial on the merits. In

Harmon's case, a default judgment was entered and no trial occurred. She sought

not to stay the writ pending trial but to contest entry of default and execution of the

writ. Harmon argues that .390(1) does not apply to actions contesting default

judgments. We agree.

The meaning of a statute is a question of law reviewed de novo. Dep't of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002). The court's

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

fundamental objective Is to ascertain and carry out the legislature's Intent, and If the

statute's meaning Is plain on Its face, then the court must give effect to that plain

meaning as an expression of legislative Intent. Id. at 9-10. "Plain meaning 'Is to be

discerned from the ordinary meaning of the language at Issue, the context of the

statute In which that provision Is found, related provisions, and the statutory scheme

as a whole.' While we look to the broader statutory context for guidance, we 'must

not add words where the legislature has chosen not to Include them,' and we must

'construe statutes such that all of the language Is given effect.'" Lake v. Woodcreek

Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010)(quoting State v.

Engel, 166 Wn.2d 572, 578, 210 P.3d 1007(2009); Rest. Dev., Inc. v. Cananwill, Inc.,

150 Wn.2d 674, 682, 80 P.3d 598 (2003)).

To properly determine Harmon's claim. It Is critical to understand the statutory

scheme of unlawful detainer actions. Governed by chapters 59.12 and 59.18 RCW,

an unlawful detainer action Is a statutorlly created proceeding that provides an

expedited method of resolving the right to possession of property. Christensen v.

Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007). Because this case Involves

a residential tenancy. It Is governed by the RLTA. See RCW 59.18 et seq. The

procedures set forth In the generalized unlawful detainer statutes,

chapter 59.12 RCW,"apply to the extent they are not supplanted by those found In

the Residential Landlord-Tenant Act." Hous. Auth. of City of Pasco & Franklin County

V. Pleasant, 126 Wn. App. 382, 390, 109 P.3d 422(2005). Chapters 59.12 and 59.18

RCW are statutes In derogation of the common law and thus are strictly construed In

11
Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

favor of the tenant. Hous. Auth. of City of Seattle v. Silva, 94 Wn. App. 731, 734, 972

P.2d 952(1999).

The RLTA sets out the step-by-step procedure for evicting tenants as unlawful

detainers. A tenant cannot hold over in the premises after termination of the rental

agreement. RCW 59.18.290. To evict a holdover tenant, the landlord must serve the

eviction notice on the tenant. RCW 59.18.200(1 )(a).^ If the tenant has not complied

with the eviction, the landlord serves a summons and complaint. RCW 59.18.365.

The summons must be in a specific form and contain specific content required by

statute. Id. ("The summons must contain the names of the parties to the proceeding,

the attorney or attorneys if any, the court in which the same is brought . . . ."). The

tenant's answer or notice of appearance may be in writing by the return date listed in

the summons, and if the tenant does not answer by that date, the landlord may move

for a default judgment. Id.

To evict the tenant, a landlord may apply for a writ of restitution at the same

time as commencing the action or at any time thereafter. RCW 59.18.370. To obtain

a writ, a landlord must apply for an order for a show cause hearing to be held 6 to 12

days after the order and serve that order on the tenant. Id. A show cause hearing is

a "summary proceeding[] to determine the issue of possession pending a lawsuit" and

3 RCW 59.18.200(1)(a) states.

When premises are rented for an indefinite time, with monthly or other periodic
rent reserved, such tenancy shall be construed to be a tenancy from month to
month, or from period to period on which rent is payable, and shall be
terminated by written notice of twenty days or more, preceding the end of any
of the months or periods of tenancy, given by either party to the other.

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

is not the final determination of rights in an unlawful detainer action. Carlstrom v.

Hanline, 98 Wn. App. 780, 788, 990 P.2d 986 (2000); see also Faciszewski v. Brown,

187 Wn.2d 308, 321, 386 P.3d 711 (2016)(noting that show cause hearings often

provide the only opportunity for tenants to present evidence).

At the show cause hearing, the court will determine if the landlord is entitled to

a writ of restitution before a trial on the complaint and answer. RCW 59.18.380. Under

this provision, the court will determine if the premises should be returned to the

landlord. Id. If it appears the landlord has the right to be restored to possession of

the property, the court will order issuance of the writ and the tenant may "stay the

execution of the writ pending final judgment" by paying into the court all rent found to

be due and, in addition, paying on a monthly basis "pending final judgment," the

amount equal to the monthly rent. Id.

Whether or not the court issues a writ of restitution at the show cause hearing,

if material factual issues exist, the court is required to enter an order directing the

parties to proceed to trial on the complaint and answer. Id.\ Pleasant, 126 Wn. App.

at 393 (citing RCW 59.18.380).

If a writ of restitution is issued at the RCW 59.18.380 show cause hearing, the

landlord can deliver the writ to the sheriff, who will serve it on the tenant. RCW

59.18.390(1).'^ The tenant may stay the writ of restitution upon posting a bond

4 ROW 59.18.390(1) provides, in pertinent part.

The sheriff shall, upon receiving the writ of restitution, forthwith serve a copy
thereof upon the defendant . . . or a person in possession of the premises, and

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

approved by the court. Id. In other words, tenants may stay in a premises after the

writ of restitution is issued, provided the tenant executes a bond to the landlord and

proper notice of the time and place is given for fixing the bond's amount.

A bond is required only if the tenant wishes to continue to occupy the premises

pending trial. The purpose of the bond is to secure the landlord against losses during

the pendency of the proceedings while the tenant continues to occupy the premises.

Pleasant, 126 Wn. App. at 390 (citing RCW 59.18.390). The statute specifies the

procedure for posting said bond. RCW 59.18.390(1). RCW 59.18.410 requires entry

of a final judgment following trial.

b. Application of the RLTA to this case

Harmon argues the language of subsection .390(1), as well as its statutory

scheme, illustrate that the provision does not apply to tenants seeking to contest

default judgments. Reynolds takes a different view. The landlord contends that

shall not execute the same for three days thereafter, and the defendant, or person
in possession of the premises within three days after the service of the writ of
restitution 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, together with
all damages which the court theretofore has awarded to the plaintiff as provided In
this chapter, and also all the costs of the action. . . . The plaintiff, his or her agent
or attorneys, shall have notice of the time and place where the court or judge
thereof shall fix the amount of the defendant's bond, and shall have notice and a
reasonable opportunity to examine Into the qualification and sufficiency of the
sureties upon the bond before the bond shall be approved by the clerk.
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No. 95575-1

nothing in the language of .390(1) limits its application to writs granted ex parte in a
default judgment and urges us not to read words into the statute.

As the statutory scheme above illustrates, RCW 59.18.390 is not a stand-alone

provision. To be properly understood, it must be read with the preceding statutes.

Taken together, these provisions set out the step-by-step process by which a landlord

evicts a tenant who has unlawfully held over. The unlawful detainer provisions detail

an eviction process in which a tenant defends herself and proceeds to a trial on the

merits. See, e.g., RCW 59.18.380 ("The court shall also enter an order directing the

parties to proceed to trial on the complaint and answer in the usual manner."). RCW

59.18.380 expressly and repeatedly states that a tenant who has answered the

eviction summons may stay a writ "pending final judgment"—that a trial on the merits

will be held. RCW 59.18.390 provides the process for a serving a writ of restitution,

but contains no language on default judgments.

Simply put, RCW 59.18.390 does not contemplate a situation where the tenant

challenges the process by which the default judgment was entered. It is silent on the

issue, and we decline to read default actions into .390(1). In re Custody of Smith, 137

Wn.2d 1, 12, 969 P.2d 21 (1998) (stating that reviewing courts will not read into a

statute words that are not there). Moreover, it would be inequitable to extend the bond

requirement to such circumstances, especially when the statute does not explicitly

require it. See Nous. Auth. of City of Everett v. Terry, 114 Wn.2d 558, 563, 789 P.2d

745 (1990)("The unlawful detainer statute is in derogation of the common law, and

must therefore be strictly construed in favor of the tenant.").

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

A party in Harmon's position that wishes to contest entry of a default judgment

has recourse in the Civil Rules. The Civil Rules are the rules of practice for virtually

all civil actions, including unlawful detainer actions, unless the rules conflict with the

unlawful detainer statutes. See Christensen, 162 Wn.2d at 374-75 ("Courts have

applied the civil rules to proceedings under the unlawful detainer statute in absence

of express inconsistences."); see also Hall v. Feigenbaum, 178 Wn. App. 811, 818,

319 P.3d 61 (2014).

The Civil Rules provide a mechanism for a party to contest a default judgment.

CR 55 governs default and judgment. A party that fails to appear, plead, or otherwise

defend against a claim may be placed in default, and a judgment may be entered

against that party. CR 55. A motion for default may be brought against such a party.

CR 55(a)(1). Reynolds followed this procedure when Harmon did not appear or

defend against the unlawful detainer complaint—the landlord moved for an order of

default and judgment, albeit not specifically referencing any civil rule in the motion.

CR 55(c) states that for good cause shown and on terms the court deems just,

the court may set aside default in accordance with CR 60(b), which details the

procedure on vacation of judgment. CR 55(c)(1): CR 60(e)(1)-(3)(motion, notice, and

service). CR 62 governs stays of proceedings to enforce a judgment. Subsection (b)

explains that a court may, in its discretion, stay the enforcement of a judgment.

Harmon sought to stay the writ pending a hearing on the merits of her motion

to vacate judgment. By its plain language, RCW 59.18.390(1) is inapplicable.

Accordingly, we reverse the Court of Appeals' opinion.

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

c. The commissioner properly stayed execution of the writ of restitution

We conclude that tenable grounds exist for the superior court commissioner to

have stayed the default judgment under the Civil Rules. Reynolds argues that even
if subsection.390(1) does not apply to Harmon, the superior court nevertheless erred
by granting the stay. Unfortunately, the record does not show the grounds under
which Harmon sought a stay of execution of the writ or a transcript for the September

23, 2016 show cause hearing. Because no trial occurred, neither section .380 nor

section .390 applies to Harmon's case. Effectively, therefore, Harmon's motion to stay

the writ and default judgment was a motion to set aside default judgment under OR

62(b).

OR 62 explicitly gives a trial court "discretion" to grant or deny a motion to stay

and permits the court to condition stays "for the security of the adverse party as are

proper." OR 62(b). Harmon alleged that she filed an answer before the deadline and

that the multiple addresses on Reynolds' pleadings caused confusion. In light of these

reasons, the commissioner properly exercised her discretion in staying the judgment

for four days until a hearing could establish the facts. CR 62; see also State v.

Templeton, 148 Wn.2d 193, 212, 59 P.3d 632(2002)(a court has the inherent power

to prescribe rules of procedure and practice).

As in any equitable balancing, in determining whether to grant a stay under CR

62 in cases like this, a trial courtjudge or commissioner must keep in mind the purpose

underlying the RLTA and unlawful detainer actions—that these provisions were

designed to hasten the recovery of possession and craft relief that properly and

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

efficiently balances both the landlord's and the tenant's competing interests. See

Terry, 114 Wn.2d at 564. In this case, the commissioner ably balanced the competing

interests and equities in issuing the temporary stay.

d. The trial court's inherent equitable authority allows a commissioner to grant
an ex parte stay of a default judgment including a writ of restitution
We hold that a court's inherent equitable authority allows granting an ex parte

stay of a default judgment issuing a writ of restitution.

This issue brings together two related yet distinct concepts. First, in general,

motions must be made on notice and orders should not be issued on ex parte

application. CR 5(a); e.g., In re Marriage of Mahalingam, 21 Wn. App. 228, 584 P.2d

971 (1978)(notice required by CR 6(d) may not be dispensed with). Second, courts

possess inherent equitable powers to fashion remedies as justice demands. Const.

art. IV, § 6 ("Superior courts and district courts have concurrent jurisdiction in cases

in equity."); State v. Werner, 129 Wn.2d 485, 918 P.2d 916 (1996) (the power to

regulate practice and procedure of superior courts is one that is inherently judicial and

may not be abrogated or restricted by any legislative act). Where the court's inherent

power is concerned, "[wje are at liberty to set the boundaries of the exercise of that

power." In re Recall ofPearsall-Stipek, 136 Wn.2d 255, 267 n.6, 961 P.2d 343(1998).

Reynolds contends that a court must have unambiguous authority under a rule

or statute to grant an ex parte stay. The landlord invokes CR 5(a) in support, which

states that "every written motion other than one which may be heard ex parte ... shall

be served upon each of the parties" in an action. The Court of Appeals agreed and

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

reasoned that CR 5(a)'s "shall" creates a mandatory obligation and "may" indicates a

permissive provision. Therefore, the plain language of the rule requires every motion
to be served on a party unless it is "permitted"to be heard ex parte; and, if an ex parte
motion is permitted, there must logically be some source of authority allowing it.
Reynolds, 1 Wn. App. 2d at 246-49. Because no express authority permitted the

commissioner to grant the stay to Harmon ex parte, the ruling was improper.

The Court of Appeals' analysis of CR 5(a) is correct, but the conclusion it draws

is not. Under the CR 5(a), a party must serve a written motion unless there is

permission to hear that motion ex parte. The source of authority for hearing an ex

parte motion is the court's inherent equitable powers to regulate its own procedures.

City of Spokane v. J-R Distribs., inc., 90 Wn.2d 722, 727, 585 P.2d 784 (1978). A

proceeding to vacate or set aside a default judgment is equitable in character, and the

relief sought or afforded is to be administered according to equitable principles and

terms. Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007).

Here, the commissioner stayed the writ of restitution because Harmon alleged

she answered before entry of default. In a perfect world, Harmon would have had

representation or titled her motion specifically as moving to vacate a default judgment

under CR 62. Nevertheless, the record shows Harmon sought to stay execution of

the writ of restitution and default judgment. The commissioner properly exercised her

inherent equitable authority hearing the motion ex parte and granting a stay ex parte.

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

5. The RLTA does not require Harmon to post a bond or give notice

Reynolds argues that the superior court erred by waiving the bond requirement

under the RLTA, specifically RCW 59.18.390(1), and that .390(1) requires notice and

a hearing to determine the amount of that bond, which the landlord did not receive

because of the waiver. This argument incorrectly assumes .390(1) applies to tenants

seeking to vacate a default judgment. As discussed in detail above, this provision

does not apply to Harmon; she moved to stay execution of the writ and default

judgment, which is governed pursuant to CR 55,60, and 62. Had the defaultjudgment

not been entered and the unlawful detainer action set over for a trial on the merits,

.390(1) would have been triggered. Harmon would have been required to post a bond

and give notice to Reynolds in order to stay in her home until trial. RCW 59.18.390(1).

Because Harmon contested the default judgment, .390(1) does not apply. She was

therefore not required by that statute to post a bond or abide by .390(1 )'s notice and

hearing requirements. Her obligations were set forth in the civil rules instead.

6. Attorney Fees and Costs

RAP 18.1(a) allows a party to request reasonable fees and costs on review. A

contract providing for an award of these fees at trial supports such an award on

appeal. Hall, 178 Wn. App. at 827. Harmon's rental agreement states that "the

prevailing party shall be entitled to recover its reasonable attorney fees and court

costs incurred in the event [of] any . . . proceeding commenced to enforce the terms

of this Agreement." CP at 13. Reynolds commenced this unlawful detainer action to

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

enforce the terms of the rental agreement, and Reynolds was the prevailing party.

Reynolds, 1 Wn. App. 2d at 253(citing Hall, 178 Wn. App. at 827). Reynolds sought

and was awarded attorney fees and costs at the Court of Appeals. Id. at 252-53.

It appears neither party requests or provides adequate argument justifying the

award of fees and costs before this court. RAP 18.1. Because we reverse the Court

of Appeals on the merits, we also reverse the award of appellate attorney fees and

costs.

CONCLUSION

Procedurally, Reynolds was not aggrieved before the Court of Appeals, which

erred in granting review. RAP 3.1. Nevertheless, the Court of Appeals properly applied

the public interest exception to mootness and considered Reynolds' declarations.

Before this court, Harmon is an aggrieved party with standing to appeal. Id. On the

merits of her claim, we conclude that RCW 59.18.390(1) does not apply to tenants

contesting entry of default judgments in unlawful detainer actions and are instead

governed by the Civil Rules. Harmon sought to challenge the default judgment

entered against her, therefore .390(1) is inapplicable and Harmon was not required to

post a bond. We reverse the Court of Appeals, including the award of attorney fees

and costs to Reynolds.

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Randy Reynolds & Assocs. v. Kasey Harmon
No. 95575-1

1

WE CONCUR.

7

17

22
Randy Reynolds & Assocs., Inc. v. Harmon, et al.
(Stephens, J., concurring)

No. 95575-1

STEPHENS, J. (concurring)—agree with the majority that respondent

Randy Reynolds & Associates (Reynolds) was not "aggrieved" by the trial court's

judgment in its favor and therefore could not appeal from that judgment. See

majority at 4-6 (citing RAP 3.1). On that ground alone, petitioner Kasey Harmon is

entitled to relief from the Court of Appeals' decision imposing fees and other

penalties against her. I would vacate the Court of Appeals' decision, thereby

granting the primary relief Harmon requested,^ and end the analysis there. By

reaching the merits ofthe Court ofAppeals' decision,the majority goes well beyond

^ Pet. for Review (arguing only that the Court of Appeals' decision should be
vacated; not requesting reversal on the merits); Suppl. Br. of Resp't Kasey Harmon at 17-
18 (requesting vacation of the Court of Appeals' decision or, in the altemative, reversal,
"[i]f this Court chooses to reach the merits").
Randy Reynolds & Assocs., Inc. v. Harmon, et al, 95575-1 (Stephens, J., dissenting)

what is necessary to decide this case and issues a sweeping affirmation of the

superior court's "equitable powers to regulate its own procedures." Id. at 19. Such

a broad holding, unsupported by precedent, risks upsetting the statutory scheme at

issue and spilling beyond the specific context of "an ex parte stay of a default

judgment issuing a writ of restitution." Id. at 18. Because I favor a more modest

holding on narrow grounds, I concur only in the result.

ANALYSIS

The majority agrees with the Court of Appeals that CR 5(a)prohibits ex parte

hearings except by specific permission. Id. at 18-19. But it holds that because the

hearing in this case was "equitable in character," an ex parte order was within the

superior court's inherent authority "to regulate its own procedures." Id. at 19. The

majority cites two cases in support of this broad principle: City ofSpokane v. J-R

Distribs., Inc., 90 Wn.2d 722, 727, 585 P.2d 784 (1978) and Morin v. Burris, 160

Wn.2d 745, 754, 161 P.3d 956(2007)). Majority at 19. Neither bears the weight of

the majority's holding.

The first case, J-R Distributors, is simply inapposite. The court there struck

down a city ordinance prescribing detailed rules of procedure and evidence for

certain superior court actions, many ofwhich conflicted with existing court rules and

state statutes. J-R Distribs., 90 Wn.2d at 724-32. The opinion recites some general

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Randy Reynolds &Assocs., Inc. v. Harmon, et al, 95515-1 (Stephens, J., dissenting)

separation of powers principles, including the well-established rule that no

legislative body may limit the judiciary's constitutional powers of self-regulation,

id. at 727, but it says nothing at all about an individual court's inherent powers in

equity. Rather, it affirms the power of the judicial branch to promulgate uniform

court rules enforceable across the state. Id. at 728.^

The second case, Morin,actually undermines the majority's reasoning. Morin

addressed three consolidated cases in which civil defendants communicated

privately with an opposing party before any action was commenced but, thereafter,

failed to file responsive pleadings or otherwise appear in court. 160 Wn.2d at 750-

53. In each case, the superior court issued a default order for the plaintiff, and in

each case, the defendant moved to vacate the order on the ground that private,

prelitigation communications constitute an "appearance," precluding judgment by

default. Id. at 751-54 (quoting CR 55(a)(1)(motion for default permitted "'[w]hen

^ Where it addresses the superior court's authority to hear the ex parte motion at
issue in this case, the majority cites several cases articulating general separation of powers
principles. Majority at 18 (citing State v. Werner, 129 Wn.2d 485, 918 P.2d 916 (1996);
In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 267 n.6, 961 P.2d 343 (1998); J-R
Distrihs., Inc., 90 Wn.2d 722)). But those principles are not at stake here, where the
superior court's action implicates a court-made rule(CR 5(a)) rather than a legislative act.
See State v. Otton, 185 Wn.2d 673,685,374 P.3d 1108(2016)("'[W]hen interpreting court
rules we are not concemed about usurping the role ofthe legislature because we alone are
uniquely positioned to declare the correct interpretation of any court-adopted rule.'"
(alteration in original) (quoting Jafar v. Webb, 111 Wn.2d 520, 527, 303 P.3d 1042
(2013))).

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Randy Reynolds & Assocs., Inc. v. Harmon, et ah, 95575-1 (Stephens, J., dissenting)

a party against whom ajudgment for affirmative reliefis sought has failed to appear,

plead, or otherwise defend'" (alteration in original))). In two of the cases, the trial

court granted the motion to vacate, and the Court of Appeals affirmed. Id. at 751-

53. In the third case, the trial court denied the motion and the Court of Appeals

reversed. Id. at 752. This court granted review and held that even though default

judgments are disfavored and a proceeding to vacate such a judgment is equitable in

nature, prelitigation conduct can never constitute an "appearance" sufficient to

preclude judgment by default. M at 754, 757. Thus, Morin holds that the superior

court does not have authority to vacate a default judgment on the basis of such an

"informal" appearance. Id. at 757. This holding is flatly contrary to the majority's

assertion that superior courts have inherent authority to regulate all equitable

proceedings on a case-by-case basis. See majority at 19.

The majority attempts to limit its holding to the narrow context of ex parte

stays of default judgments issuing writs of restitution. Majority at 18. But the

reasoning the majority employs is far broader, affirming the superior court's inherent

authority (which seemingly supersedes court rules) to regulate all equitable

proceedings. Id. at 19. Per the majority's reasoning, that authority is not limited to

the specific context of evictions, default judgments, or stays. Nor is it restricted to

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Randy Reynolds & Assocs., Inc. v. Harmon, et al., 95575-1 (Stephens, J., dissenting)

situations involving the specific implied powers at issue in the cases the majority

cites.

Absent any articulated limiting principle in its reasoning, the majority's

affirmation of the superior court's inherent authority risks spilling beyond the

context of this case and undermining the orderly procedures set forth in well-

considered court rules. The risk ofthe unintended consequences that may follow is

not worth taking, given that this case is so readily resolved on the narrow, basic rule

that only an "aggrieved" party may appeal from a judgment. As we all agree,

Reynolds is not an aggrieved party.

CONCLUSION

The court should not use this case to announce a sweeping new holding about

the superior court's inherent powers. The more prudent course of action is to grant

Harmon the remedy she initially sought in her petition to this court and to which she

is entitled: vacation ofthe Court of Appeals' decision under RAP 3.1.

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Randy Reynolds &Assocs., Inc. v. Harmon, etal, 95575-1 (Stephens, J., dissenting)

TTUdSiht.

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