       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 REUBEN SMITH and ADEN SMITH,
                                                   No. 78323-8-I
                          Respondents,
                                                   DIVISION ONE
               V.


 ISAAC M. NSEJJERE, aka ISAAC
 MAYANJA, and JANE DOE NSEJJERE                    UNPUBLISHED OPINION
 aka JANE DOE MAYANJA, husband
 and wife, and the marital community               FILED: April 22, 2019
 comprised thereof;

                         Appellants,

              and

 NSEJJERE SPORTS, LLC, a Delaware
 limited liability company,

                          Defendant.
       SMITH, J.    —   Isaac Nsejjere appeals the judgment and writ of restitution in

a commercial unlawful detainer action. Nsejjere contends that the case was

improperly filed as an unlawful detainer action because he was a bailor, not a

tenant. He additionally contends that the trial court erred in dismissing his

counterclaims, failing to rule on discovery issues, and denying his CR 59 motion

for reconsideration. We affirm.

                                          FACTS

       Reuben Smith owns a hydraulic equipment business in Woodinville. The

business includes yard space that Smith periodically rents to tenants to store

machinery and equipment.
No. 78323-8-1/2


       In September 2015, Nsejjere approached Smith to rent storage space to

park five container trucks beginning in “late October, early November.” Nsejjere

told Smith he planned to store the trucks in the yard “for two or three months and

then drive them away.” The two orally agreed on a rental payment of $800 per

month for approximately 5,000 square feet of storage space.

       Nsejjere did not bring the trucks to Smith’s yard until December 2015.

When he did,. he paid Smith $2,400, representing rental payments for December

through February.1 Nsejjere told Smith “he had some issues with the Port, and

they would not allow him to leave the material in the containers.” Nsejjere asked

if Smith could unload the containers so that he could return them.

      The equipment in the containers, which Nsejjere planned to use for a

residential development project, was very large and heavy. Smith also noted that

the equipment was not protected by any packing materials and some of it had

become damaged in transit. Smith told Nsejjere “it was going to cost him, and

probably a lot more than he expected.” Nsejjere agreed to pay Smith to unload

the trucks and agreed that the additional costs could be charged as rent. Smith

sent Nsejjere an invoice for $8,000 for the labor, equipment, and fuel used in

unloading the equipment.2




      1   At trial, Smith testified that Nsejjere did not make the payment until
February 2016. Nsejjere contended that he paid Smith in December 2015.
Though the exact date Nsejjere made this payment is immaterial to the resolution
of this appeal, an e-mail Smith sent Nsejjere in May 2017 supports Nsejjere’s
version of events.
        2 Nsejjere does not dispute this amount.



                                            2
No. 78323-8-1/3


       Nsejjere frequently came to the yard, sometimes twice a day, to look at

the equipment. He repeatedly acknowledged that he owed Smith money. But he

never removed the equipment from Smith’s yard and never made any further rent

payments. Nor did he ever pay Smith for the unloading costs. Nsejjere’s

equipment remains on Smith’s property.

       On April 24, 2017, Smith sent Nsejjere an e-mail stating that Smith would

eliminate late fees if Nsejjere paid the accrued rent. On May 19, 2017, Smith

sent Nsejjere another e-mail informing him that he could not come onto the

property until he paid his rent. On July 12, 2017, Smith served Nsejjere with a

three-day notice to pay or vacate.

       On August 1, 2017, Smith filed an unlawful detainer action. Nsejjere filed

an answer denying Smith’s claims and asserting that “that the relationship

between the parties is and has been that of a bailee and a bailor.” Nsejjere also

filed a counterclaim against Smith for negligence and breach of a bailment

contract. In addition, Nsejjere served Smith with interrogatories, requests for

admission and requests for production. Smith did not respond to the discovery

requests.

      A superior court commissioner set the matter for trial, finding that there

were disputed issues of material fact because the parties did not have a written

lease. On February 8, 2018, the trial court held a one-day bench trial at which it

heard testimony from both Smith and Nsejjere. The trial court entered findings of

fact and conclusions of law, and ordered that Smith was entitled to a writ of

restitution and a judgment in the amount of $40,800. The trial court dismissed


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No. 78323-8-1/4


Nsejjere’s counterclaims, concluding that it did not have jurisdiction to address

them. The trial denied Nsejjere’s motion for reconsideration. Nsejjere appeals.

                                   DISCUSSION

       An unlawful detainer action brought under RCW 59.12.030 is a summary

proceeding designed to enable the recovery of possession of leased property.3

Munden v. Hazelrigq, 105 Wn.2d 39, 45, 711 P.2d 295 (1985). “The action is a

narrow one, limited to the question of possession and related issues such as

restitution of the premises and rent.” Munden, 105 Wn.2d at 45. “[T]he court sits

as a special statutory tribunal to summarily decide the issues authorized by

statute and not as a court of general jurisdiction with the power to hear and

determine other issues.” Granat v. Keasler, 99 Wn.2d 564, 571, 663 P.2d 830

(1983) (emphasis omitted).

       Nsejjere claims that the trial court lacked jurisdiction to hear the case as

an unlawful detainer proceeding because his relationship with Smith was that of

a bailor and a bàilee, not a tenant and a landlord. This claim is unsupported by

the record.

       A bailment is “[a] delivery of personal property by one person (the ba/br)

to another (the ba/bee) who holds the property for a certain purpose.” BLAcK’s

LAW DICTIONARY 169 (10th ed. 2014). In contrast, a lease is “[a] contract by

       ~ A tenant has committed an unlawful detainer “[w]hen he or she, having
leased property for an indefinite time with monthly or other periodic rent reserved,
continues in possession thereof, in person or by subtenant, after the end of any
such month or period, when the landlord, more than twenty days prior to the end
of such month or period, has served notice (in manner in RCW 59.12.040
provided) requiring him or her to quit the premises at the expiration of such
month or period.” RCW 59.12.030(2).

                                             4
No. 78323-8-1/5


which a rightful possessor of real property conveys the right to use and occupy

the property in exchange for consideration.” BLACK’S, surra, at 1024.

       Here, the trial court found Nsejjere’s claim of a bailment relationship to be

unavailing.

       Mr. Nsejjere had orally agreed to store five tractor trailer containers
       on plaintiff’s property for two to three months. He instead caused
       that contract to be converted to one in which only the goods, not
       the containers, were left on the property. Whether the items were
       inside or outside of a container truck does not change the nature of
       the oral contract. Plaintiff only agreed to lease Mr. Nsejjere space
       for his property. The actions which caused Mr. Nsejjere to remove
       his property from the containers and leave the contents unprotected
       and in the elements for many months does not convert the parties’
       storage space agreement into a bailment. Additionally, Mr.
       Nsejjere behaved as a tenant by coming and going from the
       property at will from December, 2015 to May, 2017. Mr. Smith’s
       statement that Mr. Nsejjere was disinvited from the property until he
       brought his rent current muddled the position of the parties. It did
       so because a landlord may not dispossess a tenant from property
       in that way. However, the court concludes that while Mr. Smith’s ill-
       advised effort to get paid the rent he was due was communicated to
       Mr. Nsejjere, Mr. Nsejjere neither acted on it nor was influenced by
       it (except to the extent that he stopped visiting the materials).
       Within two months, Mr. Smith caused Mr. Nsejjere to be served
       with the three day notice to pay or vacate, the beginning of this
       enforceable unlawful detainer action.
(Footnote omitted.)

       We agree with the trial court. Nsejjere did not merely leave the equipment

for Smith to hold. Instead, the evidence shows that Nsejjere rented a defined

amount of yard space from Smith for the purpose of storing his equipment.4 The

relationship between Nsejjere and Smith was that of a tenant and a land lord.5

      ~ Two of Smith’s other tenants also testified at trial that they rented space
from Smith by the square foot.
       ~ Nsejjere cites to Smith’s April 24, 2017, e-mail to him, which states, “You
are not a tenant; rather you are renting space. As such, the condition of your

                                             5
No. 78323-8-1/6


And Nsejjere provides no authority in support of his claim that Smith unilaterally

converted the relationship into a bailment by telling Nsejjere he was prohibited

from coming onto the property until he paid the rent. The matter was properly

filed as an unlawful detainer action. See, ~ Reeder v. Harmeling, 75 Wn.2d

499, 499-500, 451 P.2d 920 (1969) (a writ of restitution pursuant to RCW 59.12

is the proper remedy for removing another’s property and regaining use of the

premises).

          Nsejjere contends that the trial court erred in dismissing his counterclaims.

Due to the summary nature of an unlawful detainer action, counterclaims are

generally disallowed. Munden, 105 Wn.2d at 45. The exception is when a

counterclaim or affirmative defense is “‘based on facts which excuse a tenant’s

breach.” Munden, 105 Wn.2d at 45 (quoting First Union Mqmt., Inc. v. Slack, 36

Wn. App. 849, 854, 679 P.2d 936 (1984)). In the alternative, once “the right to

possession ceases to be at issue.      .   .   the proceeding may be converted into an

ordinary civil suit for damages, and the parties may then properly assert any

cross claims, counterclaims, and affirmative defenses.” Munden, 105 Wn.2d at

4 5-46.

          Here, Nsejjere’s counterclaims did not excuse his obligation to pay rent.

And because Nsejjere’s equipment was still on Smith’s property at the time of




materials remains you [sic] responsibility. This agreement is the same as renting
a storage unit or even renting a space in a garage for a vehicle.” (Emphasis
added.) But Smith’s inartful language is not conclusive of the parties’
relationship.

                                                    6
No. 78323-8-1/7


trial, the right to possession remained at issue. The trial court was precluded

from considering Nsejjere’s counterclaims.6

       Nsejjere argues that the trial court erred in failing to order that his requests

for admission be deemed admitted. Requests for admissions are deemed

admitted against a party who fails to serve responses or objections to the

requests within 30 days, unless the court orders otherwise. CR 36(a), (b). But

the record shows that over Smith’s objections, the trial court permitted Nsejjere to

read the requests for admission into evidence. And in any event, none of the

admissions would have defeated an unlawful detainer action.7

       Nsejjere next contends that Smith’s refusal to respond to his other

discovery requests violated due process. But Nsejjere’s remedy was to file a

motion to compel discovery in the trial court, or a motion to continue the trial until

discovery could be obtained. Nsejjere did not do so, nor did he comply with the




       6 In support of this claim, Nsejjere cites two cases in which courts have
permitted counterclaims, Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973),
and Income Props. lnv. Corp. v. Trefethen, 155 Wash. 493, 284 P. 782 (1930).
But these cases involved counterclaims for damages for breach of the implied
warranty of habitability or covenant of quiet enjoyment, facts which excused the
tenants’ breaches because they were deprived of the beneficial use of the
property.
       ~ Nsejjere’s requests for admission primarily sought to establish that Smith
did not possess any written evidence of a lease, a fact that was undisputed by
the parties. Only request for admission 8 has any bearing on an unlawful
detainer action: “Admit that SMITH acknowledged payment from Nsejjere
immediately upon SMITH’S RECEIPT of the goods.” But even such an
admission would not contradict Smith’s claim that Nsejjere did not pay any rent
after February 2016.

                                              7
No. 78323-8-1/8


discovery conference requirements of CR 26(i).8 Thus, Nsejjere has waived this

claim.

         Finally, Nsejjere contends that the trial court erred in denying his CR 59

motion for reconsideration. We review the denial of a CR 59 motion for

reconsideration for an abuse of discretion. Millies v. LandAmerica Transnation,

185 Wn.2d 302, 316, 372 P.3d 111(2016). A trial court abuses its discretion

when its decision is manifestly unreasonable, or based on untenable grounds, or

exercised for untenable reasons. Mayer v. Sto lndus., Inc., 156 Wn.2d 677, 684,

132 P.3d 115 (2006).

         Citing CR 59(a)(7), CR 59(a)(8), and CR 59(a)(9), Nsejjere argues that he

was entitled to reconsideration of the judgment because Smith committed perjury

at trial.9 He contends that Smith’s testimony that he never prevented Nsejjere

from coming onto the property was contradicted by Smith’s May 19, 2017, e-mail.

         CR 26(i) provides:
         8
       The court will not entertain any motion or objection with respect to
       rules 26 through 37 unless counsel have conferred with respect to
       the motion or objection. Counsel for the moving or objecting party
       shall arrange for a mutually convenient conference in person or by
       telephone. If the court finds that counsel for any party, upon whom
       a motion or objection in respect to matters covered by such rules
       has been served, has willfully refused or failed to confer in good
       faith, the court may apply the sanctions provided under rule 37(b).
       Any motion seeking an order to compel discovery or obtain
       protection shall include counsel’s certification that the conference
       requirements of this rule have been met.
       ~ CR 59(a)(7) allows the trial court to order a new trial where “there is no
evidence or reasonable inference from the evidence to justify the verdict.” A
motion for a new trial may be granted under CR 59(a)(8) if an error in law
occurred at trial and was “objected to at the time by the party making the
application.” CR 59(a)(9) allows a trial court to grant a new trial when
“substantial justice has not been done.”


                                              8
No. 78323-8-1/9


But the sole purpose of an unlawful detainer action is to determine the right of

possession. First Union Mqmt., 36 Wn. App. at 854. While Nsejjere’s claim that

Smith barred him from the property would arguably be relevant to a defense of

constructive eviction, Nsejjere did not raise this defense. Nsejjere does not

demonstrate that the trial court abused its discretion in denying his motion for

reconsideration.

       Smith requests attorney fees pursuant to RAP 18.9 on the grounds that

Nsejjere’s appeal is frivolous. An appeal is frivolous “if it raises no debatable

issues on which reasonable minds might differ and it is so totally devoid of merit

that no reasonable possibility of reversal exists.” Protect the Peninsula’s Future

v. City of PortAngeles, 175Wn. App. 201, 220, 304 P.3d 914 (2013). Here,

although Nsejjere’s claims lack merit, they are not frivolous. We deny Smith’s

request for attorney fees.

      Affirmed.




WE CONCUR:
