                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       January 17, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 GUY WAY and ZENAIDA WAY,                                          No. 49844-8-II

                               Respondents,

        v.

 JOHN CHOQUER, and all other persons                        UNPUBLISHED OPINION
 occupying 9213 NE Mason Creek Road, Battle
 Ground, WA, 98604.

                               Appellants.

       MELNICK, J. — John Choquer appeals the trial court’s 2015 grant of a writ of restitution

against him in an unlawful detainer action brought by Guy and Zenaida Way. The Ways purchased

the property at a nonjudicial foreclosure sale. In an unpublished opinion, this court affirmed the

trial court’s grant of a writ of restitution. Way v. Choquer, No. 48191-0-II (Wash. Ct. App. Dec.

28, 2016) (unpublished), http://www.courts.wa.gov/opinions. Choquer now argues the nonjudicial

foreclosure process was unlawful under RCW 61.24.030(2) because the land was for agricultural

use. Because Choquer’s claim could and should have been brought in his previous lawsuit, it is

barred by res judicata. We affirm the trial court’s dismissal of his claim and award the Ways

attorney fees.
49844-8-II


                                              FACTS

        Choquer owned a house located on NE Mason Creek Road in Battle Ground. The mortgage

owners began a nonjudicial foreclosure process and publicly auctioned the house. The Ways

purchased the house and recorded a trustee’s deed in their favor. Because Choquer remained in

the residence, he was served with a 20-day notice to end tenancy.

        Choquer did not vacate the premises, so on September 1, 2015, the Ways filed a complaint

for an unlawful detainer action against Choquer. At a show cause hearing to determine whether a

writ of restitution should be issued, Choquer argued that service of the unlawful detainer complaint

was defective. The trial court disagreed, ruled that proper service occurred, and granted the writ

of restitution. Choquer appealed and the trial court stayed enforcement of the writ. We affirmed

the writ of restitution.

        Following this court’s opinion, the Ways requested a hearing to lift the stay and set the

correct time line on the writ of restitution. At a January 9, 2017 hearing on the Ways’ request,

Choquer again objected to the writ. He argued for the first time that the original mortgage owners

should not have initiated a nonjudicial foreclosure process because the land was used for

agricultural purposes. He argued they should have proceeded with a judicial foreclosure. Choquer

also filed a Motion to Reverse Trial Court Decision and Rescind Trustee’s Sale. The trial court

denied Choquer’s motion, finding that Choquer failed to raise his issue “within an action to contest

the foreclosure” or to raise it “in connection with [the] unlawful detainer action.” Clerk’s Papers

(CP) at 25. The trial court concluded, “Choquer is precluded from raising the issue as a defense

to the unlawful detainer action at this time.” CP at 25. Choquer appealed.




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49844-8-II


                                             ANALYSIS

          As a preliminary matter, both parties attached documents in the appendices of their briefs,

which are outside the official record. Under RAP 10.3(a)(8), “[a]n appendix may not include

materials not contained in the record on review without permission from the appellate court.”

Since neither party has obtained the requisite permission, we do not consider these documents.

I.        RES JUDICATA

          Choquer contends the trial court erred in ordering a writ of restitution because the

foreclosure procedure was improper under RCW 61.24.030(2). The Ways respond that this claim

is barred based on res judicata principles. We agree with the Ways

          Whether an action is barred by res judicata is a question of law that we review de novo.

Berschauer Phillips Const. Co. v. Mut. of Enumclaw Ins. Co., 175 Wn. App. 222, 227, 308 P.3d

681 (2013). The doctrine of res judicata bars a claim that was or could have been litigated in a

previous action. Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99 (2009). The doctrine

applies where the current and previous actions have the same “‘(1) persons and parties; (2) causes

of action; (3) subject matter; and (4) quality of the persons for, or against, the claim is made.’”

Ensley, 152 Wn. App. at 902 (quoting Landry v. Luscher, 95 Wn. App. 779, 783, 976 P.2d 1274

(1999)).

          Here, the parties are the same in both causes of action; the causes of action regarding

whether a writ of restitution should be ordered are the same; the subject matter of whether Choquer

should vacate his home is the same in both actions; and, since both parties litigated in “their

respective . . . capacities” in both proceedings, the quality of the parties is the same. Eugster v.

Wash. State Bar Ass’n, 198 Wn. App. 758, 787, 397 P.3d 131, review denied, 189 Wn2d 1018

(2017).



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49844-8-II


         In Eugster, Eugster initiated a sixth proceeding against the Washington State Bar

Association (WSBA), claiming the WSBA’s disciplinary system violated his due process and First

Amendment rights under the United States Constitution and that the WSBA retaliated against him

for an earlier lawsuit. 198 Wn. App. at 763. WSBA moved to dismiss the suit on several grounds,

including res judicata. Eugster, 198 Wn. App. at 763. The trial court granted the motion on all

grounds. Eugster, 198 Wn. App. at 763. On appeal, the court affirmed, holding that res judicata

bars this lawsuit because Eugster could have asserted his due process arguments in at least one

earlier proceeding. Eugster, 198 Wn. App. at 763.

         Similarly, here, Choquer could have asserted his argument regarding the validity of the

foreclosure process in an earlier proceeding. He failed to do so. Thus, res judicata bars Choquer’s

claim.

II.      ATTORNEY FEES

         The Ways request attorney fees on appeal under RAP 18.1 and RCW 4.84.185 for having

to defend against Choquer’s frivolous appeal. An appeal is frivolous if it “is so totally devoid of

merit that no reasonable possibility of reversal exists.” Hernandez v. Stender, 182 Wn. App. 52,

61, 358 P.3d 1169 (2014). We conclude that the issues asserted on appeal are meritless and that

Choquer had no reasonable possibility of prevailing based on res judicata principles. We hold that

the appeal is frivolous and award attorney fees to the Ways.

         We affirm.




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49844-8-II


        A majority of the 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.



                                                            Melnick, J.

We concur:




        Worswick, J.




        Bjorgen, C.J.




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