Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

MARK DOYLE and CAROLYN DOYLE,                                    No.  41538-1-II
husband and wife,
                             Respondents,

       v.

JAMES GOUGHNOUR,
                                                           UNPUBLISHED OPINION
                             Appellant.

       Worswick, A.C.J.  --  James Goughnour appeals from an order issuing a writ of restitution 

based on a show cause finding that he unlawfully detained Mark and Carolyn Doyle's residence.  

Goughnour claims that the trial court (1) erred in entering a default order, (2) denied him his right 

to present evidence, (3) erred in issuing a writ of restitution, and (4) erred in classifying this as an 

unlawful detainer action.  We affirm and award costs and attorney fees to the Doyles.

                                             Facts

       On May 12, 2009, Mark Doyle and Jim Goughnour entered into a written rental 

agreement for property the Doyles owned in Grays Harbor County.  The agreement provided that 

Goughnour would pay $1,000 per month, the Doyles would pay the utilities and Goughnour 

would reimburse them, and the amount of rent would never exceed the amount of the Doyles'

mortgage payment.

       On April 15, 2010, Mark Doyle and Goughnour entered into a new agreement.  It 

provided:

       This Agreement supersedes all previous agreements, written or oral, including the 
       Agreement  of May 12, 2009.  The parties agree that Tenant shall continue  

No.  41538-1-II

       occupancy of the Subject Property subject to this Rental Agreement.
       1.  Rent:  Monthly rent will be paid by Tenant according to the following 
       schedule:  Eight Hundred Dollars ($800) per month beginning May 1, 2010.
       [2.  Omitted.]
       3.  Utilities:  Tenant is released from all utility expenses incurred prior to April 1, 
       2010.  Commencing April 1, 2010; responsibility for utilities are [sic] tenant's.
       4.  Termination:  Tenant and Landlord may terminate this lease upon thirty (30) 
       days notice to Landlord.

Clerk's Papers (CP) at 46.  On August 12, 2010, Goughnour sent a letter to Mark Doyle 

explaining that because the rental agreement did not specify a due date, he would be making his 

payments on the 15th day of the month.  On September 4, 2010, the Doyles sent a letter to 

Goughnour explaining that it was a 20-day notice to vacate the premises.  In it, the Doyles 

explained:

       We have rented our home to you for less than we had originally asked to 
       accommodate your wishes.  We can not  [sic]  sustain our monthly financial 
       obligations at the rent amount requested nor can we afford to have you not pay the 
       rent until the 15th of each month as requested in your letter dated 8-12-10.  What 
       you wish for your convenience does make a difference for our schedule and time 
       management as well.  This is our final notice per latest rental agreement that you 
       wrote for your own satisfaction on April 14, 2010 (copy enclosed).

CP at 48.  On September 15, 2010, through an attorney, the Doyles sent Goughnour a notice of 

termination of tenancy, notifying Goughnour that the tenancy would terminate at midnight on 

October 15, 2010.

       On October 18, 2010, since Goughnour continued to occupy the residence, the Doyles

filed a complaint for eviction, asserting that Goughnour had failed to pay two months of rent and 

they had given him a 30- day notice to vacate.  They requested a writ of restitution, a judgment 

for past rent, damages, attorney fees, costs, and disbursements.  Attached to the summons was a 

document entitled, "RCW 59.18.375 Payment or Sworn Statement Requirement," informing 

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No.  41538-1-II

Goughnour that by October 29, 2010, he needed to pay his rent into the court registry or file a 

sworn statement that he did not owe the rent claimed due.  That same day, the superior court 

issued an order to show cause why the court should not grant the relief the Doyles requested.

       On October 29, 2010, Goughnour filed an answer and counterclaims to the Doyles'

complaint.  He denied the Doyles' allegations and asserted multiple affirmative defenses based on 

his claim that he made overpayments under the original agreement that applied to his current 

rental payment obligations under the new agreement.1  Goughnour also filed a lengthy answer to 

the motion to show cause.  On November 1, 2010, the trial court granted the show cause motion

and issued a writ of restitution.  Goughnour filed a request for the trial court to reconsider.  By 

letter dated November 3, 2010, the trial court denied the motion, explaining in part that the court 

issued the writ of restitution based on the termination provision in the rental agreement.  The trial 

court also explained that if Goughnour believed that the Doyles owed him money, he should file a 

contractual claim against them.

1 Specifically, he asserted:
       By way of affirmative defenses; Defendant asserts that Plaintiff's claims and 
       allegations may be or are barred by the doctrine of failure to state a cause of action 
       for which relief can be granted, jurisdiction, sufficiency of service, equitable 
       estoppel, promissory estoppel, unclean hands, statute of frauds, unjust enrichment, 
       frustration of purpose, breach by Plaintiff, attorney's fees not recoverable, 
       improper notice of breach, offset, accord and satisfaction; Defendant asserts that 
       he has a lease in fact to the the [sic] subject property; Defendant asserts that he has 
       a constructive lease to the subject property, Defendant asserts Plaintiff's notice to 
       vacate is fatally flawed.  Defendant asserts Plaintiff's unlawful detainer is fatally 
       flawed.
CP at 21.

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No.  41538-1-II

                                          ANALYSIS

                                     I.  Unlawful Detainer

       This was an unlawful detainer action under chapter 59.18 RCW.  Thus, the superior 

court's jurisdiction was limited to the right of possession.  As Division One of this court explained

in Phillips v. Hardwick:

       Unlawful detainer actions under RCW 59.18 are special statutory proceedings with 
       the limited purpose of hastening recovery of possession of rental property, and the 
       superior court's jurisdiction in such action is limited to the primary issue of the 
       right of possession, plus incidental issues such as restitution and rent, or damages. 
       Any issue not incident to the right of possession within the specific terms of RCW 
       59.18 must be raised in an ordinary civil action.

29 Wn. App. 382, 385-86, 628 P.2d 506 (1981).  There, the Phillips filed both an unlawful 

detainer action and a tort claim against the Hardwicks.  29 Wn. App. at 385.  The superior court 

dismissed the unlawful detainer action after the Hardwicks surrendered possession of the 

residence.  29 Wn. App. at 385.  When the Hardwicks sought dismissal of the tort claim based on 

res judicata, the superior court denied the motion, ruling that one cannot bring tort claims in an 

unlawful detainer proceeding but must pursue such remedies in a separate cause of action.  29 

Wn. App. at 385-86.  Division One agreed.  29 Wn. App. at 389.  For this same reason, the 

appellate court denied the Phillips an award of attorney fees as their claim for outrageous conduct 

was not under chapter 59.18 RCW and thus the attorney fees provision in RCW 59.18.290 (2) did 

not apply. 29 Wn. App. at 389.

       As we discuss in detail below, here, the trial court properly limited its consideration to 

who had the right to possess the residence.  As noted in its order denying reconsideration, the trial 

court considered the parties' pleadings before conducting a show cause hearing and it provided 

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No.  41538-1-II

the parties an opportunity to show why it should or should not issue a writ of restitution.

                                       II.  Default Order

       Goughnour first argues that the trial court erred in entering a default order when he filed 

an answer and counterclaims and appeared at the show cause hearing.  He relies on the trial 

court's show cause order, that states:  "Defendant does not appear by adequate written response 

or in person . . . . 1.  Defendant failed to adequately appear and is in default." CP at 93. The 

Doyles disagree with Goughnour's characterization of the trial court's order, arguing that the trial 

court was merely finding that Goughour was in default of the rental agreement, not entering a CR 

55 default judgment.

       We agree with the Doyles that this was not a default judgment but, rather, a show cause 

order finding Goughnour in wrongful possession of the property.  While the Doyles' attorney 

could have drafted this order more precisely, the record shows that the trial court considered 

Goughnour's answer and provided an opportunity for him to speak at the show cause hearing.  

Thus, what the trial court found was that Goughnour wrongfully possessed the residence under 

the terms of his rental agreement and therefore was in default of that agreement.  There was no 

reversible error.

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No.  41538-1-II

                                    III.  Presenting Evidence

       Goughnour argues that the trial court denied him an opportunity to present evidence and 

argue from it and therefore violated his right of due process.  Citing Leda v. Whisnand, 150 Wn. 

App. 69, 207 P.3d 468 (2009), he argues that under Title 59.18 RCW, the trial court's failure to 

swear him in and consider oral testimony was an abuse of discretion and, as such, reversible error.

       At the show cause hearing, the trial court did not have Goughnour's answer to the 

summons and complaint.  The trial court asked Goughnour, "Do you have an answer to this?  I 

have no documents of any nature." Report of Proceedings (RP) at 3.  Goughnour then provided a 

copy of his pleadings to the court, stating, "I have my answer in a sworn statement to this." RP at 

3.  The trial court then took a recess to consider Goughnour's answer.  The trial court 

reconvened the case and explained:

              THE COURT:  Doyle and Goughnour.  I have reviewed the file.  And I 
       note the clerk dropped on my desk the paperwork.  Here's your paperwork back, 
       Mr. Goughnour.  It apparently was left at the clerk's office at 4:58 on Friday 
       afternoon, so it was stamped 5:03.
              . . . .
              I have reviewed the documents in this matter.  And your issues involving 
       this matter, Mr. Goughnour, are matters of        a financial dispute apparently, 
       according to your allegations, between the landlord and you basically.
              Those are not a defense under the contract that was signed that I note on I 
       believe it's April 10th and then your correspondence on the 15th.
              This matter is a landlord/tenant matter.  If you have a contractual dispute 
       that he owes you money in other areas, that's your problem.
              . . . .
              At this point in time, you're entitled to your writ of restitution.  If the 
       gentleman wishes to sue, he's entitled to sue.  It's up to him. 

RP at 4-5.

       Leda v. Whisnand, 150 Wn. App. at 69, is instructive.  There, the tenant tried to present 

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No.  41538-1-II

testimony orally to show that the period of tenancy ran from the 15th of each month rather than 

from the first day of each month and therefore the landlord had provided defective notice.  150 

Wn. App. at 81.  The trial court refused to consider this testimony or allow Whisnand to present 

any evidence to support this defense.  150 Wn. App. at 75-77.  Division One of this court agreed 

with the tenant, explaining that when a defendant presents a viable defense to the request for a 

writ of restitution, "RCW 59.18.380 imposes an affirmative duty on the trial court to ascertain the 

merits of defenses raised for the first time during an unlawful detainer show cause hearing by 

examining the parties and any witnesses." 150 Wn. App. at 81.  The court further explained:

              [T]he proper procedure by which a trial court should conduct a RCW 
       59.18.380 show cause hearing is as follows: (1) the trial court must ascertain 
       whether either the defendant's written or oral presentations potentially establish a 
       viable legal or equitable defense to the entry of a writ of restitution; and (2) the 
       trial court must then consider sufficient admissible evidence (including testimonial 
       evidence) from parties and witnesses to determine the merits of any viable asserted 
       defenses. Because RCW 59.18.380 contemplates a resolution of the issue of 
       possession based solely on the show cause hearing, the court must either manage 
       its examination in a sufficiently expeditious manner to accommodate its calendar 
       while still preserving the defendant's procedural rights, or it must briefly set the 
       matter over for a longer show cause hearing in which those rights are respected.

150 Wn. App. at 83 (footnote omitted).

       Here, the trial court did not deprive Goughnour an opportunity to present a defense.  It 

considered his pleadings, found that he had failed to present a viable defense, and granted the writ 

of restitution.  This was all RCW 59.18.380 required the trial court to do.  See also Carlstrom v. 

Hanline, 98 Wn. App. 780, 789-90, 990 P.2d 986 (2000) (summary proceedings under RCW 

59.18.380 do not violate due process).

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No.  41538-1-II

                                    IV.  Writ of Restitution

       Goughnour argues that the trial court erred in not considering the rent overpayments he 

had made under the May 12, 2009 agreement.  He argues that the Doyles had a duty to apply 

these rent overpayments and therefore he was not in default.  He argues that the Doyles could not 

terminate his tenancy when they still held eight months of advanced rent.  He also argues that the 

trial court misinterpreted the April 15, 2010 rental agreement in finding that it allowed for 

unilateral termination of the lease.

       We find no error.  The April 15, 2010 rental agreement explicitly states that it supersedes

all previous agreements, including the May 12, 2009 agreement.  The only issue then before the 

trial court was whether the Doyles could show that Goughnour was unlawfully detaining their 

property.  The rental agreement states, "Tenant and Landlord may terminate this lease upon thirty 

(30) days notice to Landlord." CP at 46.  The phrase "and Landlord" was penciled in at the time 

the parties executed the agreement.  We find Goughnour's interpretation flawed because it would 

essentially allow Goughnour a perpetual agreement that only he could terminate.  The only 

reasonable interpretation is that both parties had the right to terminate the lease upon proper 

notice.  Further, not only does the April 15, 2010 agreement state that it supersedes all prior 

agreements but it states that Goughnour's obligation to pay rent commenced on May 1, 2010. 

Noticeably absent is any mention of advance rent payments.

       To show an unlawful detainer, the Doyles had to show that the rental agreement gave 

them the right to terminate the tenancy and that they provided Goughnour proper notice.  They 

did both of these things and thus the trial court did not err in issuing a writ of restitution.

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No.  41538-1-II

                                     V.  Unlawful Detainer

       Goughnour also argues that the trial court erred in considering this only as an unlawful 

detainer action because it involves other properly pleaded claims.  Citing Honan v. Ristorante 

Italia, Inc., 66 Wn. App. 262, 832 P.2d 89 (1992), he argues that his pleadings establish the 

integral nature of the rent overpayments to the landlord-tenant relationship and thus the trial court 

should have considered his counterclaims.

       But Honan does not support Goughnour's claim.  There, Honan filed a complaint seeking 

judgment for unpaid rent, the amount due on a sales contract plus damages, or possession of the 

property free of any other claim.  66 Wn. App. at 269.  Further, Honan used a 20-day summons, 

not an unlawful detainer summons, thereby invoking the superior court's general jurisdiction.  66 

Wn. App. at 269.  In light of this, and because the trial court treated the complaint as one for 

multiple types of relief, we held that the trial court erred in treating the case as one for unlawful 

detainer.  66 Wn. App. at 269.

       Here, the Doyles filed a summons and complaint for unlawful detainer under chapter 59.18 

RCW and thereby invoked only the limited statutory jurisdiction of the superior court.  The trial 

court, therefore, did not have jurisdiction to consider any claims other than those encompassing 

the right to possession and, as we noted above, Goughnour's claims were outside that scope.  

Goughnour's claim fails.  Honan, 66 Wn. App. at 269; Phillips v. Hardwick, 29 Wn. App. at 385-

86.

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No.  41538-1-II

                                         Attorney Fees

       The Doyles request attorney fees and costs on appeal under RCW 59.18.290(2).  As they 

are the prevailing party in this appeal, they are entitled to attorney fees and costs.  A 

commissioner will determine an amount upon the Doyles' compliance with RAP 18.1.

       We affirm.

       A majorityofthe panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                Worswick, A.C.J.
We concur:

Armstrong, J.

Van Deren, J.

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