Opinion
No. 55736-0-I.
June 5, 2006.
Appeals from judgments of the Superior Court for King County, No. 04-2-01627-1, Steven J. Mura, J., entered December 17, 2004 and January 18, 2005.
Counsel for Appellant/Cross-Respondent, Michael T. Mumford, Buri Funston PLLC, 1601 F St, Bellingham, WA 98225-3011.
Counsel for Respondent/Cross-Appellant, Walter Hartvig Jr Olsen, Olsen Law Firm PLLC, 604 W Meeker St Ste 101, Kent, WA 98032-5701.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Appelwick, C.J., concurred in by Ellington and Dwyer, JJ.
Michael Denney appeals the trial court's denial of attorney fees under RCW 59.20.110 after Denney successfully defended an unlawful detainer action. Ron Mace, the mobile home park owner, cross-appeals the trial court's denial of his unlawful detainer claim. Mace contends that Denney never had a tenancy and was trespassing on Mace's property. We affirm the denial of the unlawful detainer, reverse the denial of the award of attorney fees, and remand for entry of an award of reasonable attorney fees and modification of some factual findings.
FACTS
Ron Mace owns Fairfield Mobile Home Park in Whatcom County. In January 2004, Mace learned that Green Tree Finance was foreclosing on Mike Behnke's mobile home, a home at Fairfield. Behnke had not paid Mace rent since November 2003. Green Tree requested that Mace send Green Tree an itemization of all the rent Behnke owed, which Mace did on March 17, 2004. The itemization included rent owed through April 2004, plus late charges. Meanwhile, Michael Denney became interested in buying the mobile home. Denney had recently moved to the area with his two sons to look for work. After looking at the home around March 20, Denney decided to make an offer. Around March 23 Denney learned that Green Tree owned the home and that he would be responsible for paying any back rent or late fees due. He also learned that Mace owned the park.
After Denney submitted the offer to Green Tree, he called to inform Mace. Denney told Mace that the bank had advised him to get a copy of the lease agreement, park rules, and tenant application. Denney testified at trial that he was `99 percent sure' that he told Mace that he intended to move into the home with his two sons. Denney acknowledged that he was liable for any back rent due. Mace told Denney that he was leaving for vacation but would mail Denney the requested documents. The conversation was cordial and short.
Denney's offer to purchase was accepted around March 26. Denney left Mace a message telling him of the acceptance and asking Mace to contact him when he returned from vacation to finalize the paperwork. The sale closed on April 2 and Denney and his sons moved into the home.
Mace returned from his vacation after Denney moved in. When Mace came to the park, he saw Denney's wife, who was visiting her husband, at the mobile home. Mace asked her what she was doing there and expressed his anger that the Denneys had moved in while he was on vacation. He did not ask her to leave.
There appears to be some disagreement as to the time frame for these events. Mace testified that the first time he met Denney was on April 8, which would mean that his conversation with Denney's wife was on April 7. But Denney and his wife both testified that the conversations took place on April 2 and April 3. The trial court found that the first conversation occurred on April 3 and the second on April 4.
The next day, Denney went to talk to Mace. Mace told Denney that he had to remove his travel trailer, and Denney agreed. Denney then faxed a letter to Mace on April 8 explaining his circumstances and stating that he hoped Mace would allow them to rent space for the home. Denney included a filled-in rental application. In his letter, Denney also stated that Behnke had agreed to pay the back rent owed to Mace, and that Denney felt Green Tree should pay for February and March rent, and he was trying to make arrangements accordingly.
Mace responded with a letter on April 10. In the letter, Mace stated that Denney had moved onto his property without the permission of either Behnke or Mace. Mace suggested that as a show of good faith, Denney put into escrow the money owed to Mace, including first month's rent and a security deposit. Mace stated that this amount was $2,633. Mace also suggested that Denney obtain a quit claim deed from Behnke that relinquished Behnke's leasehold interest. Mace also said Denney should submit a credit report, and cautioned that the letter did not mean Mace had given Denney permission to lease the property.
Denney then contacted Behnke, and Behnke gave Denney a document entitled `Quit Claim Deed and Release of Interest.' In the deed, Behnke released any rights and leasehold interests he had in the home. The document was signed and dated April 10. Denney faxed this document to Mace on April 12. Denney also left Mace a message around April 13 or 14 stating that he was working with Green Tree to determine the discrepancy between the $2,055 that Mace had told Green Tree he was owed and the $2,633 that Mace had told Denney he was owed. Mace called Denney around April 21, asking why the back rent had not yet been paid. Denney responded in a letter on April 22, requesting a meeting to finalize a lease agreement and stating that he was still waiting to hear from Green Tree about the rent owed.
On April 23, Mace left a three-day notice to quit with the Denneys. The notice stated that it was based on possession without permission under RCW 59.12.030(6). The notice also stated RCW 59.20.073 of the [M]obile Home Landlord/Tenant Act specifically states that a very specific procedure must be followed in order to transfer a space lease within a mobile home park. The procedure was not followed in regard to the space you are currently occupying. Therefore, based on RCW 59.20.073(5) the landlord is hereby disapproving the transfer, which means that you are trespassing on the space at this time.
There is a dispute as to whether Mace delivered the notice to Denney personally or left it on the door.
The notice cited RCW 59.20.073(5) as the applicable subsection. However, the 1999 legislative amendment moved this section to RCW 59.20.073(6). Laws of 1999, ch. 359, sec. 7.
The notice was not based on nonpayment of rent. Denney went to talk to Mace, and told him that he was ready to pay the amount of rent for which he was liable. Mace told Denney that he just wanted him gone.
When Denney did not leave, Mace filed an unlawful detainer action. Mace alleged that the Denneys took possession of and continued to occupy the premises without Mace's permission. The parties had a two-day bench trial in November 2004. The Denneys invoked several chapter 59.20 RCW defenses, including that Mace had unreasonably withheld his consent to assignment of the lease. The trial court found that Green Tree had become a tenant when Mace looked to Green Tree to pay back rent. The court found that Green Tree assigned the tenancy when it sold the home to Denney. The court also found that Mace unreasonably refused to enter into a lease agreement with Denney. The court found that Denney had a one-year lease as a matter of law, and required both parties to bear their own attorney fees.
The Denneys appeal, claiming that because they successfully defended the unlawful detainer proceeding, they are statutorily entitled to their attorney fees under RCW 59.20.110. Mace cross-appeals, claiming that the Denneys were never tenants and are not subject to the protection of chapter 59.20 RCW, and that the unlawful detainer was improperly denied.
ANALYSIS
I. Challenged Findings of Fact
Mace assigns error to several of the trial court's findings of fact. The standard of review on appeal is whether the challenged findings of fact are supported by substantial evidence in the record. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999).
A. Finding of Fact 2
Mace assigns error to finding of fact 2, which is that `[p]rior to the events giving rise to this lawsuit, Mike Behnke (Behnke) rented the premises from [Mace] for rent of $289.00 per month for purposes of the placement of Behnke's mobile home in which he resided.' Mace asserts that while Behnke was the previous tenant, he did not actually own the mobile home his parents did. In conjunction with this assertion, Mace assigns error to the portions of findings of fact 3, 4, and 10 that reference `Behnke's mobile home.'
Mace is correct that the record suggests that Behnke's parents were the owners of the home. A 1989 park owner certification on Green Tree letterhead lists Bert and Barbara Behnke as the present owners of the home, and there is no evidence in the record that they ever sold the home to their son. Green Tree's affidavit of repossession, notarized April 2004, lists Bert and Barbara Behnke as the registered owners of the mobile home. However, Behnke was the party with the leasehold interest. Mace testified that the parents did not enter into a lease agreement, and that Behnke lived at the home with his wife and, later, his girlfriend. There was no evidence that Behnke's parents ever lived at the home. Therefore, insofar as Behnke inhabited the home and leased the space in Fairfield on which the home sat, it was his home. Although this discrepancy is not material to the outcome of the case, the trial court should correct the finding on remand.
B. Finding of Fact 10
Mace assigns error to finding of fact 10, which is that `[u]pon Green Tree's request, after it foreclosed on Behnke's home, [Mace] provided Green Tree with an itemization of the back rent owed on the premises and Mr. Mace looked to the secured party to pay back rent from December, 2003.' Mace claims that he did not look to Green Tree to pay back rent, but rather looked to Green Tree to cause its customer to pay the back rent, or cause any subsequent purchaser to pay the back rent.
RCW 59.20.074(1) provides that a secured party with a right of possession shall be liable to the landlord from the date the secured party receives written notice for rent for occupancy of the mobile home space under the same terms the tenant was paying prior to repossession. Here, Mace sent Green Tree a letter that was sufficient to trigger RCW 59.20.074(1). Whether Mace subjectively expected Green Tree to pay the back rent itself or to cause the new homeowner to pay it is irrelevant for purposes of the statute. The finding of fact is supported.
C. Findings of Fact 24 and 26
Mace assigns error to findings of fact 24 and 26. The findings of fact read as follows:
24. Mr. Denney attempted to clarify with Mr. Mace and Green Tree the discrepancy about the amount of back rent owing.
26. While Mr. Denney was attempting to determine the amount of back rent owing, [Mace] served the Denneys with a three day notice to quit by serving a copy to Mr. Denney's son at the mobile home on April 23, 2004. The eviction notice stated that the Denneys were being evicted for possession without permission because they failed to follow the requirements of RCW 59.20.073(5).
Mace contends that both findings of fact are not supported because there was no discrepancy in the amount of back rent owing. Further, Mace argues, finding of fact 26 is incorrect because Denney admitted that he personally received service. Mace contends that finding of fact 26 also incorrectly recounts the language in the notice.
Mace is incorrect that there was no discrepancy. The April 10 letter from Mace to Denney stated that Denney should deposit $2,633 into escrow, which included first month's rent and a security deposit. But the March 17 letter from Mace to Green Tree stated that the amount owed was $2,055, which included April rent, the first month that Denney occupied the home. Denney testified that the March 17 letter was the only document he received that delineated the individual charges. He also testified that he did not know what the discrepancy was. Even Mace appeared to admit at trial that April rent may have been included twice in the higher figure. The trial court's finding of fact that there was a discrepancy in the back rent is supported.
The Denneys have admitted service, so whether the notice was personally served and the person to whom it was served are issues irrelevant to the outcome of the case. However, Mace is correct that the record does not support a finding of fact that Mace specifically served Denney's son. Denney testified that when he returned home from work on April 23, his son told him that Mace had left an eviction notice on the door. The notice was addressed to `M. Denney et al.' This discrepancy is not material to the outcome of the case, but the trial court should correct the finding on remand.
The remaining portion of finding of fact 26 states that `[t]he eviction notice stated that the Denneys were being evicted for possession without permission because they failed to follow the requirements of RCW 59.20.073(5).' Mace contends that the trial court misrepresented the language in the eviction notice, and did not mention the language `[t]he reason for this notice is you are occupying the above-described premises without the permission of the owner and without having color of title thereto or in the absence of compliance with RCW 59.20.073.' (emphasis added). Presumably Mace's complaint is that the notice stated two separate bases for eviction, and the trial court conflated the two bases. Mace's observation is correct. However, given that the trial court specifically looked to RCW 59.20.073 to determine whether Denney was occupying the premises without permission, the trial court's restatement of the notice was in line with its interpretation of the law. In any event, the finding of fact is immaterial because the trial court found that the basis or bases stated in the notice were not the true reasons why Mace evicted Denney. The trial court should clarify this finding of fact on remand.
D. Finding of Fact 27
Mace contends that finding of fact 27 is not supported by substantial evidence. The finding of fact is that `Mr. Denney spoke with Mr. Mace the day after the eviction notice had been delivered and offered to pay all the back rent Mr. Mace had requested.' Mace asserts that, in fact, the record only supports a finding of fact that Denney offered to pay $2,000, not the full amount of $2,633.
Mace is correct. As noted above, the trial court's finding of fact that there was a discrepancy in the amount of back rent owed is supported. When asked at trial whether he offered to pay the full rent to Mace after receiving the eviction notice, Denney said `Yeah. That was the $2,000 that Mr. Black had given to me.' There is no evidence to support a finding of fact that Denney offered to pay the $2,633 that Mace was requesting. On remand the trial court should correct the finding of fact to reflect the actual amount offered.
Denney was referring to a friend that was also lending him money to buy the home.
E. Finding of Fact 31
Mace argues that finding of fact 31 is not supported by substantial evidence. The finding of fact is that `[t]he only concern [Mace] had with renting to the Denneys was [Denney's] non-compliance with the park rules and regulations.' Mace asserts that the evidence supports numerous reasons that he did not want to rent to Denney, including that Denney moved onto the land without Mace's permission, that Denney did not complete a rental application, that Denney did not mow his lawn, that Denney stored debris in his yard, and that Denney did not tender the $2,633 into escrow during negotiations on the amount. Mace claims the finding of fact should be revised accordingly.
Although Mace testified as to the various reasons he did not want to rent to Denney, the trial court is entitled to make credibility determinations and to disbelieve aspects of a witness's testimony. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (noting that credibility determinations are for the trier of fact and are not subject to review). Denney introduced photos of other homes with long grass and debris in the yard, to show that such conditions were not uncommon. Denney also introduced evidence that other tenants had moved in before they had completed their tenancy applications. The trial court was entitled to believe Denney's evidence and to disbelieve Mace's proffered reasons for not wanting to rent to Denney.
Further, many of the reasons Mace claims were wrongfully omitted from the finding of fact were, in fact, violations of the park's rules. For example, the rules require that tenants keep the grass mown, not park cars on the grass, and not keep dogs at the park. Thus, the trial court's finding included these reasons. Finding of fact 31 is substantially supported.
II. Challenged Conclusions of Law
Mace assigns error to each of the trial court's conclusions of law, except for the conclusion of law that provided that each party pay its own attorney fees. Mace contends that each conclusion of law is based on the incorrect premise that Denney had a tenancy assigned from Behnke or Green Tree. Mace argues that Denney did not have a tenancy and thus was not subject to chapter 59.20 RCW. We must determine whether the findings of fact support the conclusions of law. Landmark Dev., 138 Wn.2d at 573.
A. Chapter 59.20 RCW (Conclusion of Law 1)
Mace first challenges the trial court's use of chapter 59.20 RCW. He contends that he satisfied all of the elements of the unlawful detainer statute, and so the trial court erred in not entering judgment in Mace's favor. In conjunction with this argument, Mace assigns error to conclusion of law 1.
Mace's interpretation of the statute is too simplistic. His unlawful detainer lawsuit alleged that the Denneys took possession and continued to occupy the premises without permission. The purpose of an unlawful detainer action is to determine the right of possession. First Union Mgmt. v. Slack, 36 Wn. App. 849, 854, 679 P.2d 936 (1984). But, in order to determine whether the Denneys had a right to possession, the trial court had to determine whether they had a leasehold interest assigned from Green Tree. Therefore, the trial court was entitled to look to the provisions of chapter 59.20 RCW to determine whether the Denneys were guilty of unlawful detainer.
B. Green Tree's Lease Assignment (Conclusions of Law 2, 3, 4, 6)
Mace contends that Green Tree was never a tenant because it did not pay Mace rent. Accordingly, Mace argues, Green Tree had no leasehold interest to transfer to Denney. Mace argues that White River Estates v. Hiltbruner, 84 Wn. App. 352, 928 P.2d 440 (1996), is distinguishable from this case. In conjunction with this argument, Mace assigns error to the trial court's conclusions of law 2, 3, 4, and 6.
Hiltbruner is instructive here. In that case, Hiltbruner had a security interest in a mobile home she sold to the Brunelles. The Brunelles defaulted on their rental agreement, and later moved out of the home. When Hiltbruner tried to re-sell the home, the mobile home park rejected all of the potential buyers' tenancy applications. Hiltbruner, 84 Wn. App. at 357-58. The jury found that the park owner unreasonably withheld consent to assignment under chapter 59.20 RCW. On appeal, the park owner contended that Hiltbruner was not a tenant for purposes of RCW 59.20.073. Hiltbruner, 84 Wn. App. at 359-62.
The case was reversed in part by White River Estates v. Hiltbruner, 134 Wn.2d 761, 953 P.2d 796 (1998), on an unrelated issue.
This court disagreed and held that `[a] secured party governed by a tenant's lease permitting assignment is a tenant for purposes of RCW 59.20.073.' Hiltbruner, 84 Wn. App. at 362. The court cited RCW 59.20.074(1) and (6), which together provide that a secured party is liable to the landlord under the same terms as the previous tenant, and the prior rental agreement governs the relationship. Hiltbruner, 84 Wn. App. at 358-59, 360. The court noted that the Brunelles' lease had a clause permitting assignment when the tenant sells the home. The court reasoned that secured parties who take possession, like tenants, should not have obstacles to selling their homes. Hiltbruner, 84 Wn. App. at 360-61, 357.
Under Hiltbruner, Green Tree is a tenant for purposes of RCW 59.20.073. Green Tree took possession of the home by putting locks on the door after Behnke defaulted. Thus, Green Tree became a tenant governed by Behnke's lease agreement. Green Tree then sold the home to Denney, and with that sale, assigned the tenancy. Mace was thus required to approve or disapprove of the transfer on the same basis on which he approves or disapproves of any new tenant. RCW 59.20.073(5).
Hiltbruner emphasizes the fact that the lease agreement had a provision allowing for assignment when the mobile home was sold. Hiltbruner, 84 Wn. App. at 360-61, 362. There is no copy of Behnke's lease in the record, although all four of the other Fairfield rental agreements in the record, including the blank copy Mace sent to Denney after their March phone conversation, have the following provision: `This agreement shall not be assignable by Tenant, except as provided in RCW 59.20.073, on the sale of a manufactured home in the Community.' While Mace points out that Denney did not introduce Behnke's lease agreement at trial, he does not contend that it contained any different provisions. In any event, RCW 59.20.073 does not appear to depend on whether the lease agreement allows for assignment or not the statute simply provides that leases are assignable on the sale of a mobile home.
Mace contends that Green Tree was not a tenant because it never paid rent. Mace cites RCW 59.20.030(11), which defines a tenant as any person who rents a mobile home lot. But under Hiltbruner, whether the secured party paid rent to the park owner does not appear to be a dispositive factor. In fact, it appears that Hiltbruner did not pay the back rent owed until the parties settled the park owner's unlawful detainer suit in November 1992. Hiltbruner, 84 Wn. App. at 356, 358. Yet the court did not state that Hiltbruner only became a tenant under RCW 59.20.073 when she paid the back rent. Further, under Mace's reasoning, a secured party who gets the new tenant/homeowner to pay its back rent obligations would not be a tenant for purposes of RCW 59.20.073 and would not be protected by its provisions, while a secured party who paid the back rent itself prior to the new tenant/homeowner moving in would be a tenant for purposes of RCW 59.20.073 and would have those protections. There is no logical reason for this distinction, and it is also at odds with RCW 59.20.074, which does not state that the secured party's rights depend on whether it has paid the sums for which it is liable. We decline to impart such a strained construction to the statute.
Mace attempts to distinguish Hiltbruner on several other grounds. He notes that after the tenants defaulted on rent in that case, the park owner sent Hiltbruner a letter informing her she was liable for back rent under RCW 59.20.074. Hiltbruner, 84 Wn. App. at 357-58. Mace contends he sent no such letter to Green Tree. But the court found that Mace looked to Green Tree to pay the back rent. This notice operated to trigger the statute in the same manner as in Hiltbruner.
Mace also asserts that Hiltbruner is distinguishable because in that case, the secured party was a party to the litigation asserting her rights, whereas here, Green Tree is not a party and has not tried to assert any rights. But Denney's rights in this case flow from the rights Green Tree had under RCW 59.20.073 and .074 as interpreted in Hiltbruner, as a secured party who took possession. Hiltbruner suggests no reason why a new tenant would not be able to assert the rights of its predecessor, the secured party.
Mace also contends that Hiltbruner is distinguishable because Hiltbruner spent months repairing the home before selling it and because several potential tenants were rejected by the park owner. Mace has offered no reason why these facts should make Hiltbruner inapplicable. We see none.
C. Behnke's Interest (Conclusion of Law 9)
Mace contends that Behnke could not have transferred his leasehold interest with the quit claim deed because he had no interest to assign at that point. Mace argues that Behnke's tenancy ended when he stopped paying rent and when Green Tree foreclosed on the home. Mace assigns error to conclusion of law 9.
Mace is incorrect. Conclusion of law 9 states that Denney `obtained Mike Behnke's interest in the premises by quit claim deed.' As noted above, Green Tree stepped into Behnke's shoes under RCW 59.20.074(1) and Hiltbruner, and Green Tree transferred the tenancy to Denney. Mace is correct that when Behnke signed the quit claim deed in April 2004, he had no leasehold interest to assign. But the finding of fact is only that Denney obtained Behnke's interest by quit claim deed, not that Behnke had an interest to assign. Behnke transferred his interest, which was zero, to Denney. The conclusion of law is supported.
D. Unreasonable Refusal to Enter into a Lease Agreement (Conclusions of Law 8, 10, 11, 12, 14)
Mace contends that, even if Hiltbruner does apply to this case, he did not unreasonably withhold his consent to the transfer. He asserts that the reasons he did not want to rent to Denney were reasonable. In conjunction with this assertion, Mace assigns error to the trial court's conclusions of law 8, 10, 11, 12, and 14, which regard reasons that were and were not the basis for the rejection.
The court's conclusions of law are supported. Although Mace stated in the eviction notice that the notice was based on Denney failing to obtain permission to move in, the court found that this was not the real reason. The court found that Denney moving in without permission was of de minimus import in light of the fact that Mace had allowed others to move in without agreements being signed. This is supported by testimony of other Fairfield tenants who moved in before signing an application and the Fairfield park rule sheet. This is further supported by the fact that Mace waited between two and three weeks after learning the Denneys had moved in before he posted an eviction notice. If moving in without permission was the true basis for disapproving the assignment, presumably Mace would not have waited so long to exercise his rights.
Further, Denney had a right to enter into a lease subject to reasonable disapproval, as the trial court found in conclusion of law 10. RCW 59.20.073(5) states that the landlord shall approve or disapprove of the assignment on the same basis that the landlord approves or disapproves of any new tenant, and that consent shall not be unreasonably withheld. But the court found that consent was unreasonably withheld. The court found that Mace's only reason for not wanting to rent to the Denneys was their failure to follow Fairfield rules. Refusal on this basis was unreasonable, given the fact that Mace had not notified Denney of any rule violations, other than telling him to move his travel trailer, which he agreed to do. RCW 59.20.080(1) states that mobile home park landlords can only evict tenants for the listed reasons, one of which is violation of the park rules. RCW 59.20.080(1)(a). But RCW 59.20.080(1)(a) requires that the landlord give the tenant written notice of the rule violation(s) prior to issuing the eviction notice. Denney had not signed and returned the Fairfield rules sheet, and Mace had not notified Denney either orally or in writing of any of the violations, other than telling him to move his trailer. Given these facts, the trial court's conclusion that it was unreasonable to deny Denney a lease agreement on these grounds is supported.
E. Other Challenged Conclusions of Law (Conclusions of Law 5, 7, 13, 15)
Mace assigns error to several of the trial court's other conclusions of law. One is conclusion of law 5, which states that `[b]oth parties violated their legal obligations to the other.' With respect to Mace, this conclusion of law is supported by the trial court's finding of fact that Mace never notified Denney of the rule violations, other than asking him to move his travel trailer, prior to evicting Denney. Since Mace did not comply with RCW 59.20.080(1)(a), he violated his legal obligations to Denney. With respect to Denney, conclusion of law 5 is supported by the fact that Denney moved in without signing the appropriate paperwork. In fact, the trial court orally ruled that Denney did not have a legal right to move in without that paperwork being signed. We may consider a trial court's oral decision when interpreting the court's findings of fact and conclusions of law, as long as there is no inconsistency. State v. Eppens, 30 Wn. App. 119, 126, 633 P.2d 92 (1981). Mace also assigns error to conclusion of law 7, which states that the Denneys have a one-year lease by operation of law. Because Hiltbruner is applicable and Green Tree transferred its interest to Denney, Denney has a one-year lease. RCW 59.20.090(1) states that `[u]nless otherwise agreed rental agreements shall be for a term of one year.' Since there was no agreement as to how long the Denneys' lease would be, the conclusion of law is supported.
Other than conclusion of law 13, Mace does not make any individual arguments that go to why these four conclusions of law are unsupported. His assignment of error is that all of the conclusions of law are based on the incorrect premise that Denney had a tenancy. Because the finding that Denney had a tenancy is supported and there is no specific argument on these assignments of error, we are not required to address the assignments of error individually. See Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (`Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration'). Because we wish to be thorough and the issues are easily disposed of, we shall address the assignments of error nonetheless.
Mace also assigns error to conclusion of law 13, which is that Denney's `actions in not tendering the back rent to [Mace] prior to receipt of the eviction notice [were] reasonable in light of the discrepancy of the back rent figures provided to him by [Mace] and [Green Tree].' As noted above, there was a disagreement as to how much back rent was owed. Given that Denney communicated the discrepancy but was not given an explanation by either party before receiving the eviction notice, the conclusion of law is supported.
Finally, Mace contends the trial court erred in conclusion of law 15 when it held that Mace was not entitled to a writ of restitution. Given the trial court's other conclusions of law regarding the lease, this conclusion of law is not in error.
We conclude the trial court did not err in denying the unlawful detainer.
III. Denney's Attorney Fees at Trial
Denney appeals the trial court's denial of his attorney fees. He claims that RCW 59.20.110 mandates an award of fees to the prevailing party in an action under chapter 59.20 RCW. Denney asserts that the reason the court did not award fees because it found that Denney had violated some of the Fairfield rules was not an issue over which the court had jurisdiction. The trial court did not award fees because it found in its oral ruling that Denney had not complied with Fairfield rules for the previous six months. The court found that because Denney and Mace both violated their obligations to each other, the court would exercise its powers in equity and require both sides to bear their own fees and costs.
RCW 59.20.110 provides that `[i]n any action arising out of this chapter, the prevailing party shall be entitled to reasonable attorney's fees and costs.' Courts have used this provision to award fees in other cases involving mobile home unlawful detainer actions. See, e.g., Hartson P'ship v. Martinez, 123 Wn. App. 36, 44, 96 P.3d 449, review denied 154 Wn.2d 1010 (2004); Duvall Highlands v. Elwell, 104 Wn. App. 763, 771-72, 19 P.3d 1051 (2001); Hwang v. McMahill, 103 Wn. App. 945, 954, 15 P.3d 172 (2000).
Further, it is clear that some of the provisions of chapter 59.20 RCW, such as RCW 59.20.073, apply to prospective tenants as well as existing tenants. Thus, the fact that Denney had not yet signed a lease agreement would not prevent RCW 59.20.110 from applying in this action.
RCW 59.20.110 mandates a fee award. Courts have interpreted statutes with similar language to require an award of attorney fees. See Singleton v. Frost, 108 Wn.2d 723, 727-29, 742 P.2d 1224 (1987) (interpreting RCW 4.84.330, which states that the prevailing party in an action on a contract or lease which provides for attorney fees shall be entitled to reasonable attorney fees); Burr v. Lane, 10 Wn. App. 661, 677-78, 517 P.2d 988 (1974) (interpreting former RCW 7.33.290, which stated that when a garnishment answer is controverted, the costs of the proceeding shall be awarded to the prevailing party). To interpret RCW 59.20.110 as giving the trial court discretion to award fees would render the statute meaningless. See Singleton, 108 Wn.2d at 729.
Mace argues that here, the trial court was invoking its equitable powers, and thus could fashion a remedy it deemed appropriate. However, [u]nlawful 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.
Phillips v. Hardwick, 29 Wn. App. 382, 385-86, 628 P.2d 506 (1981). The provisions of chapter 59.18 RCW govern unlawful detainer proceedings arising from a tenancy under chapter 59.20 RCW. Hartson P'ship v. Goodwin, 99 Wn. App. 227, 230, 991 P.2d 1211 (2000). The court's denial of Denney's attorney fees appeared to be designed to punish Denney for violating Fairfield's rules and regulations. This was not an issue related to possession, and thus was a decision outside the scope of the court's equitable powers.
Mace also contends that Denney is precluded from seeking attorney fees because, under RCW 59.20.240, rent was owed on the property at all times pertinent to this action. RCW 59.20.240 provides, in relevant part, that `[t]he tenant shall be current in the payment of rent including all utilities which the tenant has agreed in the rental agreement to pay before exercising any of the remedies accorded the tenant under the provisions of this chapter.' The only remedies available under chapter 59.20 RCW are under RCW 59.20.210 and RCW 59.20.220. Ethridge v. Hwang, 105 Wn. App. 447, 454, 20 P.3d 958 (2001). These sections pertain to tenants asserting their rights against landlords who have failed to carry out their duties. Since Denney did not bring a claim under these sections, RCW 59.20.240 does not operate to bar his attorney fees.
Finally, Mace contends that the trial court's conclusion of law could be based on the fact that both parties prevailed on major issues. He notes that the trial court found that Denney moved on to Mace's property without permission. But that was not dispositive of the issue before the court, which was whether Denney was guilty of unlawful detainer. The court denied Mace's request for a writ of restitution. Accordingly, Denney prevailed on possession, the major issue before the court. The statute directs the court to award of reasonable fees to Denney. The trial court erred in not doing so.
IV. Attorney Fees on Appeal
Denney and Mace both ask for attorney fees on appeal under RCW 59.20.110. Since Denney has prevailed on appeal, he is entitled to his reasonable fees. RCW 59.20.110, RAP 18.1.
We reverse and remand for entry of an award of reasonable attorney fees to Denney, as well as modifications of findings of fact 2, 26, and 27. We affirm on all other issues. We grant attorney fees on appeal to Denney.
DWYER and ELLINGTON, JJ., concur.