Randy Reynolds & Assocs., Inc. v. Harmon

404 P.3d 602

RANDY REYNOLDS & ASSOCIATES, INC. dba Reynolds Real Estate, Appellant,

v.Kasey HARMON aka Kasey Harman, Any Subtenants, and All Others Acting By Or Through Them, Respondents.

No. 49588-1-II.

Court of Appeals of Washington, Division 2.

FILED October 31, 2017

Michael G. Gusa, Gusa Law Office, 3025 Limited Ln Nw, Olympia, WA, 98502-2613, Counsel for Appellant.

Kasey Harmon (Appearing Pro Se), Po Box 325, Yelm, WA, 98597, Counsel for Respondents.

PUBLISHED OPINION

JOHANSON, P.J.

¶ 1 Randy Reynolds & Associates Inc. (Reynolds) appeals from the superior court commissioner's ex parte order staying a writ of restitution in an unlawful detainer action that Reynolds brought against a tenant and waiving bond pending a hearing on the merits. Even though the issues raised are moot, we reach the merits of the case because they raise issues of important public policy that are likely to recur. We hold that the superior court commissioner erred when she heard the ex parte motion to stay execution of the writ of restitution and waived the bond without notice to Reynolds in violation of the notice and hearing requirements provided in RCW 59.18.390(1). Consequently, we reverse.

FACTS

¶ 2 In July 2016, Reynolds served Kasey Harmon with a 20-day notice to terminate her tenancy in compliance with the rental agreement and RCW 59.12.030(2). When Harmon failed to timely vacate the property, Reynolds filed and served an unlawful detainer complaint seeking, among other things, restitution of the premises. On September 16, after Harmon failed to appear pursuant to proper notice, the superior court commissioner entered an order of default and judgment granting a writ of restitution in favor of Reynolds.

¶ 3 The sheriff posted notice of the writ at Harmon's residence on September 19. That same day, Harmon brought an ex parte motion to stay execution of the writ. The superior court commissioner stayed execution of the writ based on Harmon's claim that she answered before the case was filed and default was entered, and the court commissioner ordered a show cause hearing. The order granting the stay was on a preprinted form that stated, "Bond is waived until the hearing on the merits of this motion," and Harmon did not post a bond. Clerk's Papers (CP) at 24.

¶ 4 In support of its writ, Reynolds' pleadings asserted that the ex parte hearing to stay the writ was improper and that the stay was invalid because Harmon was required by RCW 59.18.390(1) to post a bond before retaining possession of the premises and obtaining a stay of a writ of restitution. At the show cause hearing, the superior court commissioner held that Harmon had no legally sufficient challenge to the writ of restitution, and it lifted the stay and granted a supplemental judgment including attorney fees and costs to Reynolds. The writ was then executed and Harmon was evicted.

¶ 5 Reynolds appeals from the superior court commissioner's ex parte order that granted a stay of the writ of restitution, waived the bond, and ordered a show cause hearing.¹

ANALYSIS

I. MOOTNESS

¶ 6 Reynolds acknowledges that the matters presented are moot but argues that we should consider them because they involve "issues of continuing and substantial public interest." Br. of Appellant at 6. We agree.

A. RULES OF LAW

¶ 7 A case is moot if " ‘the court can no longer provide effective relief.’ "

In re Det. of M.W. , 185 Wash.2d 633, 648, 374 P.3d 1123 (2016) (quoting State v. Hunley , 175 Wash.2d 901, 907, 287 P.3d 584 (2012) ). Generally, we do not consider cases that are moot or present abstract questions. State v. Beaver , 184 Wash.2d 321, 330, 358 P.3d 385 (2015).

¶ 8 Even when cases are moot, we have discretion to address questions "of continuing and substantial public interest." M.W ., 185 Wash.2d at 648, 374 P.3d 1123. When considering whether a case involves issues of continuing and substantial public interest, we consider (1) " ‘the public or private nature of the question presented,’ " (2) " ‘the desirability of an authoritative determination for the future guidance of public officers,’ " and (3) " ‘the likelihood of future recurrence of the question.’ " M.W ., 185 Wash.2d at 648, 374 P.3d 1123 (internal quotation marks omitted) (quoting Hunley , 175 Wash.2d at 907, 287 P.3d 584 ).

¶ 9 Matters involving statutory interpretation tend to be more public in nature, more likely to arise again, and more helpful to public officials.

Hart v. Dep't of Soc. & Health Serv. , 111 Wash.2d 445, 449, 759 P.2d 1206 (1988). And courts may consider " ‘the likelihood that the issue will escape review because the facts of the controversy are short-lived.’ " In re Marriage of Horner , 151 Wash.2d 884, 892, 93 P.3d 124 (2004) (quoting Westerman v. Cary , 125 Wash.2d 277, 286-87, 892 P.2d 1067 (1994) ).

B. ANALYSIS

¶ 10 Because the superior court commissioner already lifted the writ's stay and Harmon has been evicted, we can no longer provide effective relief regarding the stay and the waiver of bond pending the show cause hearing. See M.W ., 185 Wash.2d at 648, 374 P.3d 1123. As such, the case is moot. M.W. , 185 Wash.2d at 648, 374 P.3d 1123.

¶ 11 However, the three factors for determining whether a matter is of continuing and substantial public interest each weigh in favor of a conclusion that we should consider the issues. See M.W. , 185 Wash.2d at 648, 374 P.3d 1123. First, the questions presented are public because they involve statutory interpretation to determine the proper notice and hearing procedures for certain proceedings under the Residential Landlord-Tenant Act of 1973, ch. 59.18 RCW. See Hart , 111 Wash.2d at 449, 759 P.2d 1206.

¶ 12 Second, it is desirable to have an authoritative determination of proper procedures for obtaining a stay of a writ of restitution and satisfying the bond requirement under RCW 59.18.390(1) to guide future public officers. See M.W. , 185 Wash.2d at 648, 374 P.3d 1123. The superior court commissioner here heard the motion to stay ex parte and waived the bond requirement on a preprinted form that is evidently used routinely in this county in orders to stay writs of restitution. It is desirable to provide guidance to the superior court so that its procedures may be adjusted to conform to statutory requirements.

¶ 13 Third, it is likely that similar questions will reoccur. See M.W ., 185 Wash.2d at 648, 374 P.3d 1123. Superior courts routinely adjudicate unlawful detainer actions by landlords, so these issues will certainly be raised again.

¶ 14 We may also choose to hear the merits because eviction proceedings are designed to be an expedited process. Christensen v. Ellsworth , 162 Wash.2d 365, 375-76, 173 P.3d 228 (2007) ("[T]he purpose of the unlawful detainer statute ... is to provide a landlord with a speedy, efficient procedure by which to obtain possession of the premises after a breach by the tenant."). As such, the issues presented are likely to escape review. See In re Marriage of Horner , 151 Wash.2d at 892, 93 P.3d 124. Because Reynolds raises issues of continuing and substantial public interest, we choose to reach the merits of the issues. See M.W ., 185 Wash.2d at 648-49, 374 P.3d 1123.

II. CR 5(a)

¶ 15 Reynolds argues that the superior court commissioner erred when it heard, ex parte, the motion to stay execution of the writ of restitution.² Specifically, Reynolds asserts that its right to notice for " ‘every written motion other than one which may be heard ex parte’ " under CR 5(a) was violated when the superior court commissioner heard ex parte motions prohibited by Code of Judicial Conduct (CJC) Rules 2.9(A) and 2.6(A).³ Br. of Appellant at 13 (quoting CR 5(a) ). We agree.

A. RULES OF LAW

¶ 16 We review both the interpretation and the application of court rules de novo. State v. McEnroe , 174 Wash.2d 795, 800, 279 P.3d 861 (2012). We interpret court rules using principles of statutory interpretation. Jafar v. Webb , 177 Wash.2d 520, 527, 303 P.3d 1042 (2013). However, when interpreting court rules, we are not concerned about usurping the role of the legislature because we are uniquely positioned to declare the correct interpretation of any court-adopted rule. Jafar , 177 Wash.2d at 527, 303 P.3d 1042. "If the rule's meaning is plain on its face, we must give effect to that meaning as an expression of the drafter's intent." Jafar , 177 Wash.2d at 526, 303 P.3d 1042. When a court rule is ambiguous, we must discern the drafter's intent by " ‘reading the rule as a whole, harmonizing its provisions, and using related rules to help identify’ " the intended meaning. Jafar , 177 Wash.2d at 526-27, 303 P.3d 1042 (quoting State v. Chhom , 162 Wash.2d 451, 458, 173 P.3d 234 (2007) ). The use of "may" in a statute indicates that the provision is permissive and not binding, while the use of "shall" indicates a mandatory provision. Scannell v. City of Seattle , 97 Wash.2d 701, 704, 648 P.2d 435 (1982).

¶ 17 Improper ex parte communication under the CJC may provide grounds for a new trial under CR 59(a)(1). Buckley v. Snapper Power Equip. Co. , 61 Wash. App. 932, 938, 813 P.2d 125 (1991). In addition, the CJC may provide a basis for a definition of ex parte contacts that may be used to determine whether aggrieved parties are entitled to a remedy separate from the judicial code. See State v. Watson , 155 Wash.2d 574, 578-79, 122 P.3d 903 (2005).

B. ANALYSIS

1. NOTICE UNDER CR 5(a)

¶ 18 Reynolds asserts that CR 5(a) is "clear on its face" such that "[n]otice of the motion and the hearing were required." Br. of Appellant at 13. We agree.

¶ 19 CR 5(a) states that "every written motion other than one which may be heard ex parte ... shall be served upon each of the parties." In addition, under Rule 2.9(A) of the CJC,

[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, before that judge's court except as

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