                                                                 FILED 

                                                             NOVEMBER 3,2015 

                                                         In the Office of the Clerk of Court 

                                                        WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


JESSICA MAE GOODEILL,                          )         No. 32442-7-III
                                               )
                     Petitioner,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
MADISON REAL ESTATE,                           )

                                               )

                     Respondent.               )


       LA WRENCE-BERREY, J.        This court granted Jessica Goodeill's request for

discretionary review to detennine whether RCW 59.18.280 precludes her landlord from

retaining a portion of her security deposit because it failed to timely provide her a full and

specific statement of the basis for retaining her deposit. Her landlord argues that an

exception to RCW 59.18.280 applies: "[C]ircumstances beyond [its] control prevented [it]

from providing the statement within ... fourteen days." We hold that a landlord may not

avail itself of RCW 59.18.280' s exception unless it accounts for any active or passive

delays sufficient to show that it made a conscientious attempt to comply with the 14 day

statutory notice. Because the landlord's evidence shows it has not met this standard, it

may not avail itself of the statutory exception. We, therefore, reverse and remand.
No. 32442-7-III
Goodeill v. Madison Real Estate


                                         FACTS

       In November 2011, Jessica and Dave Goodeill entered into a seven-month lease

agreement for a home at 1502 West Cora Court in Spokane, a property managed and

ostensibly owned by Baker & Associates, LLC. The Goodeills paid $750.00 per month

for rent, a $750.00 damage security deposit, and a $50.00 pet deposit.

       Ms. Goodeill completed a standard move-in condition report and returned it to

Baker within the requisite time. She noted a number of nicks, scrapes, stains, dirt marks,

nail holes, and paint spots on the walls and wood trim throughout the house. She also

noted nicks on closet doors, two burnt-out lightbulbs in the hallway, a "bad leak" coming

from the washing machine's hot water valve, one garage remote that did not work, dirty

and stained window blinds, peeling wallpaper, a faulty kitchen light, and a broken kitchen

drawer, among other things. Pl.'s Ex. 1 at 31-34. Ms. Goodeill did not mince words

when describing the yard: "Yard looks like hell." Pl.'s Ex. 1 at 32.

      During the Goodeills' tenancy, Madison purchased Baker. On August 17,2012,

the Goodeills entered into a new lease agreement with Madison, with a lease end date of

June 30, 2013. After their lease expired, the Goodeills' tenancy became month to month

by operation ofRCW 59. 18.200(l)(a).




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No. 32442-7-III
Goodeill v. Madison Real Estate


       On August 5,2013, the Goodeills gave Madison the requisite 20-day notice that

they intended to vacate 1502 West Cora Court py the end of August. By August 27, the

Goodeills had finished moving out of the residence. That same day, they had the carpets

professionally cleaned. On August 28, Madison contacted Ms. Goodeill and requested

approval to show the residence and keys to do so. Ms. Goodeill gave Madison one of her

keys, but retained two other keys.

       On August 30, Ms. Goodeill telephoned Madison to arrange a time to turn in her

two remaining keys and complete move-out paperwork. She spoke with an employee

named Marlie who told her that the office would be closed Monday, September 2, in

observance of Labor Day, but that she could turn in her two keys by noon on September 3

to avoid being charged extra rent. On September 3, Ms. Goodeill turned in her last two

keys to Madison. Despite the conversation between Ms. Goodeill and Martie, Madison

treated September 3 as the Goodeills' actual move-out date.

       On September 4, Madison completed a move-out condition report, noting that the

house needed a "deep clean" and some other minor repairs in order to be ready to rent.

Def.'s Ex. 1 at 43. The record shows that Madison hired Action Tech Inc., to clean the

blinds, and DavisPro Cleaning & Maintenance to clean, repair, and make the interior and

exterior presentable for a new tenant.


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No. 32442-7-111
Goodeill v. Madison Real Estate


       The record does not establish when Madison contacted Action Tech. However, the

Action Tech invoice shows that the blinds were cleaned on September 11, and the charges

totaled $136.36. This invoice was created on September 11 and was mailed to Madison

on that day.

       A work order establishes that Madison did not contact DavisPro until September 9.

The DavisPro invoices show that both the interior and exterior work was completed two

days after Madison requested the work, or September 11. DavisPro billed its work on two

separate invoices, one for $112.50 dated September 18, and the other for $135.69 dated

October 1. These two invoices were mailed to Madison on those separate dates.

       On September 16, Madison mailed a letter to the Goodeills, informing them that

their deposit of$800.00 was being held to pay estimated charges for which it claimed

they were liable. The notice estimated that the Goodeills owed $900.00, leaving a

balance owing to Madison of$100.00. Pl.'s Ex. 1 at 4. The estimated charges were

itemized as follows:

       9/1/2013        RENT INCOME-SEPTEMBER 2013 (3DAYS) $75.00
       9/16/2013       ESTIMATED: CITY UTIL-OVERAGES $75.00
       9/13/2013       ESTIMATED: WINDOWS COVERING CLNG $150.00
       9/13/2013       ESTIMATED: GENERAL HOUSE CLEANING $350.00
       9/13/2013       ESTIMATED: LAWN CARE-DRY & WEEDS $150.00
       9/13/2013       ESTIMATED: MAINTIDEBRIS REMOVAL $100.00

PI. ' sEx. 1 at 5. The notice further stated:

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No. 32442-7-111
Goodeill v. Madison Real Estate


     Once all estimated costs have been determined, a final accounting will be
     forwarded to you. We will verify againt [sic] move-in reported condition
     and move-out condition report and account for less normal wear & tear.
     Please provide confirmation that utilities have been paid through 06/30/13 and
     your account will be adjusted accordingly.

Pl.'s Ex. 1 at 4 (emphasis in original).

       On September 18, Ms. Goodeill called Madison to dispute the estimated charges.

She spoke with an associate named Kirsten, who said that Madison typically sends a high

estimate "so tenants would not be surprised" by the final statement. Clerk's Papers (CP)

at 3. Kirsten said she had no receipts or documentation to support Madison's estimate,

and urged Ms. Goodeill to "wait until the final statement," which could take between two

to four additional weeks. CP at 3. Ms. Goodeill asked if it would be possible to return to

the property and go over the estimated charges and was told that the property had already

been occupied by new renters. Kirsten took Ms. Goodeill's contact information and told

her someone would call her.

       On September 19, Ms. Goodeill called Madison's office again, insisting that she

speak with someone who could explain the estimated charges to her. An associate named

Brandy told her that Ron Dickerson would call her back. Ms. Goodeill informed Brandy

that she knew her rights as a tenant, and that she was entitled to her deposit refund within




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No. 32442-7-II1
Goodeill v. Madison Real Estate


14 days of moving out. Brandy told Ms. Goodeill that landlords are only required to

provide an estimate of charges within 14 days.

      Neither Mr. Dickerson nor anyone from Madison returned Ms. Goodeill's

September 19 call. Four days later, Ms. Goodeill filed suit against Madison in the small

claims court division of district court, seeking $1,600.00, which represented

her $800.00 security deposit plus a penalty equal to her security deposit, as pennitted by

RCW 59.18.280.

       On October 9-43 days after the Goodeills vacated their rental and 36 days after

the Goodeills returned their last two keys to Madison-Madison sent the Goodeills the

following full and specific statement as contemplated by RCW 59.18.280: .

      1561 vacancy cleaning                                           $112.50
      6684 cleaned 7 blinds & 1 shade                                 $89.05 1
      Avista Util-gas (tenant to reimb owner)                         $22.49
      Avista Util-elec (tenant to reimb owner)                        $29.44
      City Util-refuse 8/31 (tenant to reimb owner)                   $5.79
      City Util-sewer 8/31 (tenant to reimb owner)                    $36.74
      City Util-water 8/31 (tenant to reimb owner)                    $46.29
      1592 repairs: replaced bulbs, cleaned up yard debris,
      pulled gold coin out of vent in entry way, checked all
      smoke detectors, repaired back door screen, rehung
      laundry room bi-fold doors (50% of 135.69 tenant exp)           $67.85
      Admin Fee Re Inv1561                                            $11.25
      Admin Fee Re inv6684                                            $8.91

       Madison charged the Goodeills roughly 65 percent of the Action Tech bill,
       I
presumably acknowledging that the remaining portion was nonnal wear and tear.

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No. 32442-7-III
Goodeill v. Madison Real Estate


       Admin Fee Re Inv1592                                           $6.78
       Outstanding Amount (Rent Income Sept. 2013 = 3 days)           $120.002
                                             Total Charges            $557.09

Pl.'s Ex. 1 at 35. Madison applied a credit of$845.00, which represented the $800.00

security deposit and a $45.00 prepayment credit. The difference between the $845.00

credit and the total charges of$557.09 was $287.91, which Madison refunded to Ms.

Goodeill with the October 9 notice.

       On October 15, Madison received Ms. Goodeill's summons and complaint. On

October 21, Madison filed a counterclaim seeking to offset the total charges from the

requested security deposit. On October 30, the district court received exhibits and heard

testimony from Ms. Goodeill and Madison's representative, Ron Dickerson. Ms.

Goodeill argued that Madison had clearly violated RCW 59.18.280 and was not entitled

to keep any of her security deposit as a result. Mr. Dickerson stated that Madison's

maintenance department had called the utility companies to obtain final amounts for the

time between when the Goodeills vacated the property and when Ms. Goodeill turned in

her keys to Madison. Mr. Dickerson argued that DavisPro's delay in providing Madison

with invoices for their work on 1502 West Cora Court constituted "circumstances beyond

the landlord's control," allowing Madison to raise the defense of offset to Ms. Goodeill's



      2 Although not an issue on appeal, we are unable to find any justification for the

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No. 32442-7-III
Goodeill v. Madison Real Estate


claim. CP at 31. The small claims court judge asked Mr. Dickerson to provide legal

authority supporting Madison's interpretation ofRCW 59.18.280, to which Mr.

Dickerson replied:

      [Mr. Dickerson]: I've been in, I'm sorry to say this, I've been in court a few
      times in regards to this and every case we have had through precedence is
      basically said there's no way in the world you can get every bill inside of
      the time so it gives the provision there that said you are allowed, ifit's
      beyond your circumstances that you can get all of the bills, then how are
      you going to create a final bill? You can't. Therefore

      [Judge]: So I guess what I need to ask you, do you have case law to support
      that? What, I mean I know you're telling me that you have been in court
      and other judges have said, yeah I get it you can't do it in time, but I'm
      somewhat familiar with this portion of the law and I, I've always wondered
      about 14 days doesn't seem to be an awfully long time to tum anything
      around, but I'm just wondering if you can give me something.

      [Mr. Dickerson]: I do not have a case law but I'm sure that I'll be able to
      get one.

CP at 31-32. The small claims court ruled in Ms. Goodeill' s favor, and substantially

awarded her requested relief.

      Madison, through counsel, appealed the small claims court award to superior court.

The parties filed briefing and the superior court heard argument on March 21,2014.

Madison repeated the arguments it made in small claims court. The superior court

reversed the small claims court award and dismissed Ms. Goodeill's claim, finding that


various administrative fees and any September rent charge beyond $75.00.
                                            8
No. 32442-7-III
Goodeill v. Madison Real Estate


Madison "was prevented from sending a full and specific statement within 14 days

because of circumstances beyond their control, Le., not receiving invoices until

September 18 and October 1, 2013. A final full and specific statement was sent within a

reasonable time after the final invoices were obtained." CP at 53. The superior court

remanded the matter for entry ofjudgment and awarded reasonable attorney fees and

costs to Madison.

       On Apri118, 2014, Ms. Goodeill requested discretionary review from this court. A

commissioner of this court denied Ms. Goodeill's motion. On September 3, Ms. Goodeill

moved this court to modifY the commissioner's ruling. This court granted Ms. GoodeiWs

motion to modifY and granted discretionary review.

                                        ANALYSIS

1. 	   Whether the superior court correctly found that DavisPro's delay in submitting its
       invoices to Madison constituted "circumstances beyond the landlord's control"
       under RCW 59.18.280

       a. 	    Standard ofReview

       RCW 12.36.055(1) provides: "The appeal from a small claims judgment or

decision shall be de novo upon the record of the case, as entered by the district court."

Such reviews are controlled by CRLJ 73 and CRLJ 75. 3 See RALJ 1.1(b). The superior



       3   Despite the 2001 amendment ofRCW 12.36.055, both CRLJ 72(b) and CRLJ 75

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No. 32442-7-III
Goodeill v. Madison Real Estate


court conducts a de novo review ofthe district court record, generally reading the exhibits

and the transcribed testimony earlier considered by the small claims court. See generally

CRLJ 75(c). Pursuant to CR 52, the superior court thereafter enters findings of fact and

conclusions oflaw. See CR I; CR 81(a).

      Appellate courts generally review a superior court's findings of fact for substantial

evidence. This is true even where the trial court's findings are based entirely on

documentary evidence, provided that the trial court was called on to reconcile conflicting

evidence. Inre Marriage o/Rideout, 150 Wn.2d337, 351, 77P.3d 1174(2003).

However,

      "where ... the trial court has not seen nor heard testimony requiring it to
      assess the credibility or competency of witnesses, and to weigh the
      evidence, nor reconcile conflicting evidence, then on appeal a court of
      review stands in the same position as the trial court in looking at the facts of
      the case and should review the record de novo."

State v. Kipp, 179 Wn.2d 718, 727, 317 P .3d 1029 (2014) (internal quotation marks

omitted) (quoting Progressive Animal Welfare Soc'y v. Univ. o/Wash., 125 Wn.2d 243,

252, 884 P.2d 592 (1994)). In Kipp, the trial court ruled on a motion to suppress an audio

recording. Id at 726. The evidence considered by the trial court was a written stipulation


mistakenly refer to the appeal as a trial de novo, rather than a de novo appeal on the
record. The amendment makes clear that there is no new trial in superior court. LAWS OF
2001, ch. 156, § 2.

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No. 32442-7-III
Goodeill v. Madison Real Estate


to background facts and the 10-minute audio recording. Id. at 723. The question argued

to the trial court was whether the recording was of a "private conversation" within the

meaning ofRCW 9.73.030(1)(b). Id. at 722-24. If so, the recording was required to be

suppressed pursuant to RCW 9.73.050. Id. at 724. The trial court ruled that the recording

was not of a "private conversation" within the meaning of the statute. Id. at 722. The

recording was later considered by the jury, and the jury found Mr. Kipp guilty of the

charged offenses. Id. On appeal, the Kipp court applied a de novo review to the order

denying suppression, and reversed the trial court's order. Id. at 726-29, 733. In

determining that de novo review was appropriate, the Kipp court emphasized that the trial

court "made no credibility or other determinations for which its firsthand observation of

the proceedings better positioned it to make," and that the evidence before the trial court,

i.e., the stipulation to background facts and the 10-minute recording, did not present

issues of fact. Id. at 728.

       Here, the trial court reviewed documentary evidence that established the relevant

timelines for what happened and when. The trial court was not called on to resolve issues

of fact concerning what happened and when. Rather, it was called on to determine, given

what happened and when, whether the landlord's failure to timely provide the statutory

notice was "beyond the landlord's control." Because there was no conflicting evidence


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No. 32442-7-III
Goodeill v. Madison Real Estate


which the trial court reconciled to make this determination, our review of the trial court's

decision on this issue is de novo.

       b.     An improperly designated finding offact is treated as a conclusion oflaw

       "If a determination concerns whether the evidence showed that something

occurred or existed, it is properly labeled a finding of fact, but if a determination is made

by a process of legal reasoning from, or interpretation of the legal significance of, the

evidentiary facts, it is a conclusion oflaw." Moulden & Sons, Inc. v. Osaka Landscaping

& Nursery, Inc., 21 Wn. App. 194, 197 n.5, 584 P.2d 968 (1978). Findings of fact that in

reality pronounce legal conclusions are treated as legal conclusions. Fine v. Laband, 35

Wn. App. 368, 374, 667 P.2d 101 (1983). "A trial court's conclusions of law are

reviewed de novo." Inland Foundry Co. v. Dep't ofLabor & Indus., 106 Wn. App. 333,

340,24 P.3d 424 (2001).

       c.     Application ofthe two rules ofreview to challengedfinding offact 5

       Ms. Goodeill assigns error to the superior court's critical finding of fact 5:

"Madison Real Estate was prevented from sending a full and specific statement within 14

days because of circumstances beyond their control, i.e., not receiving invoices until

September 18 and October 1,2013." CP at 53. First, the superior court did not weigh

conflicting evidence to make this quoted finding. Therefore, as explained above, our



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No. 32442-7-111
Goodeill v. Madison Real Estate


review of the evidence pertaining to this finding is de novo. Second, even had the

superior court weighed conflicting evidence to make finding of fact 5, our review still

would be de novo. This is because finding of fact 5 is actually a conclusion of law. Here,

the superior court interpreted the meaning of "circumstances beyond the landlord's

control" in RCW 59.18.280 and then applied that interpretation to evidentiary facts.

Pursuant to Moulden, this application of law to evidentiary facts constitutes a legal

conclusion. For both of these reasons, we review finding of fact 5 de novo.

       d.     Applying the plain meaning ofthe statutory exception

       RCW 59.18.280 provides, in relevant part:

      Within fourteen days after the termination of the rental agreement and
      vacation of the premises ... the landlord shall give a full and specific
      statement of the basis for retaining any of the deposit together with the
      payment of any refund due the tenant under the terms and conditions of the
      rental agreement. No portion of any deposit shall be withheld on account of
      wear resulting from ordinary use of the premises.
              . .. If the landlord fails to give such statement together with any
      refund due the tenant within the time limits specified above he or she shall
      be liable to the tenant for the full amount of the deposit. The landlord is
      also barred in any action brought by the tenant to recover the deposit from
      asserting any claim or raising any defense for retaining any of the deposit
      unless the landlord shows that circumstances beyond the landlord's control
      prevented the landlordfrom providing the statement within thefourteen
      days. . . . The court may in its discretion award up to two times the amount
      of the deposit for the intentional refusal of the landlord to give the statement
      or refund due. In any action brought by the tenant to recover the deposit,
      the prevailing party shall additionally be entitled to the cost of suit or 

      arbitration including a reasonable attorney's fee. 


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No. 32442-7-III
Goodeill v. Madison Real Estate


(Emphasis added.)

       Washington's Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW, does

not define "circumstances beyond the landlord's control." There are only four published

cases citing or interpreting RCW 59.18.280, none of which address the meaning of

"circumstances beyond the landlord's control." See generally Sardam v. Morford, 51

Wn. App. 908, 756 P.2d 174 (1988); In re Marriage ofNelson, 62 Wn. App. 515, 814

P.2d 1208 (1991); Liera v. Senatore, 75 Wn. App. 97, 877 P.2d 700 (1994); State v.

Schwab, 103 Wn.2d 542, 693 P.2d 108 (1985). Accordingly, we must employ rules of

statutory interpretation to discern the meaning of the phrase in question.

       "Statutory interpretation is a question of law reviewed de novo." Williams v.

TUaye, 174 Wn.2d 57, 61, 272 P.3d 235 (2012). Our Supreme Court articulated the

process of statutory interpretation in Christensen v. Ellsworth:

               A court's objective in construing a statute is to determine the
       legislature's intent. "[I]fthe statute's meaning is plain on its face, then the
       court must give effect to that plain meaning as an expression of legislative
       intent." Plain meaning is 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. An undefined
       statutory term should be given its usual and ordinary meaning. Statutory
       provisions and rules should be harmonized whenever possible. If the
       statutory language is susceptible to more than one reasonable interpretation,
       then a court may resort to statutory construction, legislative history, and
       relevant case law for assistance in discerning legislative intent.


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No. 32442-7-III
Goodeill v. Madison Real Estate


162 Wn.2d 365,372-73, 173 P.3d 228 (2007) (citations and internal quotation marks

omitted) (quoting Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43

P.3d 4 (2002».

       With one exception, unless the landlord timely provides the required notice,

RCW 59.18.280 bars a landlord from asserting any claim to the tenant's deposit. The

exception requires "the landlord [to show] that circumstances beyond [its] control

prevented [it] from providing the statement within the fourteen days." RCW 59.18.280.

We see no ambiguity in the statutory exception, and therefore give effect to its plain

meaning: Circumstances are either beyond a landlord's control or within a landlord's

control. Circumstances within a landlord's control can be divided into either active

delays or passive delays. For purposes of this analysis, "active delays" are when the

landlord simply fails to promptly do something, and "passive delays" are when the

landlord permits an unreasonable delay by another. We hold that a landlord may not avail

itself ofRCW 59.18.280's exception unless it accounts for any active or passive delay

sufficient to show that it made a conscientious attempt to comply with the statutory 14

day notice.

       Here, Madison has not shown this. First, Madison failed to explain why it did not

provide DavisPro a work order soon after the Goodeills vacated on August 27, 2013, and


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No. 32442-7-111
Goodeill v. Madison Real Estate


gave it a key the following day. Madison did not provide DavisPro a work order until

September 9-12 days after it had access to the vacant rental. Within two days, DavisPro

cleaned and repaired the inside and outside of the rental so it was rentable. Had Madison

promptly contacted DavisPro, DavisPro would have completed its work well within the

statutory 14 day timeframe. Second, Madison did not explain why it could not have

learned of DavisPro's actual charges weeks before October 1. Madison could have

telephoned DavisPro after it did its work and either asked DavisPro for its total charges or

for it to promptly send its invoices. Madison did neither. Rather, Madison disregarded

Ms. Goodeill's statutory right and passively waited 20 days for DavisPro's last invoice.

Simply put, Madison's evidence falls woefully short of showing that circumstances

beyond its control prevented it from timely providing Ms. Goodeill the statutory notice.

We, therefore, conclude that Madison may not avail itself of the statutory exception.

2.     Monetary compensation

       Ms. Goodeill requests reasonable attorney fees, costs, and other relief.

RCW 59.18.280 provides, in relevant part: "In any action brought by the tenant to

recover the deposit, the prevailing party shall additionally be entitled to the cost

of suit or arbitration including a reasonable attorney's fee." Subject to Ms. Goodeill's

compliance with RAP 18.1 (d), she is entitled to have a commissioner of this court



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No. 32442-7-111
Goodeill v. Madison Real Estate


determine reasonable attorney fees and costs on appeal. We remand for the superior court

to award Ms. Goodeill reasonable attorney fees and costs incurred at that level, to award

Ms. Goodeill her $800.00 deposit together with statutory interest from 14 days after

September 3, 2013, plus up to an additional $800.00 pursuant to RCW 59.18.280.

      Reverse and remand.




                                                   Lawrence-Berrey, J.

WE CONCUR:




 :1.     J

Fearin~\ 





                                            17 

