        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                                        ('IC
PORT OF KINGSTON, a Washington                                                  c.n

Port District,                                   No. 73668-0-1
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                                                                                    i
                      Respondent,                DIVISION ONE                           ;---:.

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                 v.



ROB BREWSTER and BETH                                                           CD
BREWSTER, husband and wife, and
the marital community they compose,              UNPUBLISHED OPINION
d/b/a KINGSTON ADVENTURES, LLC,
a Washington limited liability company,          FILED: December 7, 2015

                      Appellants.


       Becker, J. — Appellants were found in unlawful detainer of eight boat

storage spaces leased from the Port of Kingston. They contend that not all of

them are liable for the monetary awards. We remand for resolution of that issue

and affirm in all other respects.

       In April 2010, Rob and Beth Brewster rented a single berth at the Port of

Kingston's small watercraft facility to store a family kayak. Later that year, Beth

Brewster decided to start a small watercraft rental business, Kingston Adventures

LLC. For business purposes, she leased eight berths from the Port at $25 per

month. Each berth was covered by a "Small Watercraft Facility Lease

Agreement." Each lease included a parking permit and access to a dock gate.
No. 73668-0-1/2



Each lease could be terminated by either party on 30 days' written notice. And

each lease required the lessee to obtain the Port's prior written permission before

using the berth for any commercial purpose.

        On January 26, 2011, Kingston Adventures obtained the Port's written

permission to use the eight berths for commercial purposes. This was done

through a business use agreement. The business use agreement expired by its

own terms on January 26, 2012. There were attempts to renew the business use

agreement, but the parties reached an impasse and negotiations fell through.

Nevertheless, Kingston Adventures continued to use the berths. The company

tendered the rent monthly, and the Port accepted it.

        In 2013, the relationship between the Port and the Brewsters deteriorated

for reasons that need not be detailed here. Beth Brewster publicly criticized the

Port.

        In May 2014, the Port served a Notice to Terminate Tenancy directed to

Rob and Beth Brewster, their marital community, and Kingston Adventures.

These entities will hereafter be referred to as "defendants." The berths were to

be surrendered on or before June 30.

        In June 2014, Kingston Adventures initiated a federal civil rights lawsuit

against the Port. The lawsuit alleged that the Port's decision to terminate the

tenancy was the product of gender discrimination and a desire to retaliate against

Beth Brewster for exercising her First Amendment right to criticize the Port.

        The berths were not surrendered by June 30. On July 2, the Port filed an

unlawful detainer action in Kitsap County Superior Court. On July 17, the
No. 73668-0-1/3



defendants answered, filed a jury demand, and asserted affirmative defenses.

The defendants were ordered to appear on July 18 for a show cause hearing.

       On July 11, the defendants filed a motion to abate, asking the court to stay

the unlawful detainer proceedings until the federal litigation was complete. They

also filed a motion to dismiss.


       On July 17, the defendants filed a declaration by Beth Brewster in

opposition to the Port's allegations of unlawful detainer.

       On July 18, Judge Jeanette Dalton heard oral argument on the motion to

abate. She orally continued the show cause hearing and the motion to dismiss to

her departmental calendar on Friday, August 1, at 1:30 p.m.

       On July 23, Judge Dalton issued an order denying the defendants'

motions to abate and dismiss. The order stated that the unlawful detainer action

would be set for a jury trial.

       On July 25, Judge Dalton issued an amended order moving the show

cause hearing to the civil motions calendar at 9:00 a.m. on August 1. This order

stated that the show cause hearing previously set for her departmental calendar

at 1:30 p.m. on August 1 was stricken.

       On July 30, the defendants filed a motion asking Judge Dalton to

reconsider the motion to abate.


       On Friday, August 1, the Port appeared for the show cause hearing at 9

a.m. before Judge Jennifer Forbes, the motions judge. The defendants were not

present. In their absence, Judge Forbes resolved the unlawful detainer action by

entering findings and conclusions and a judgment in favor of the Port for $451.36
No. 73668-0-1/4



for the rent and leasehold tax due and owing for June and July 2014. The clerk

was directed to issue a writ of restitution restoring the eight berths to the Port.

Judge Forbes reserved ruling on the attorney fees and costs claimed by the Port.

         On August 4, the defendants moved to vacate the writ of restitution and

the judgment. Counsel for the defendants represented that it was not until after

the show cause hearing had already occurred that he received the order moving

it from Friday afternoon to Friday morning. Counsel for the Port responded that

even if this were true, the defendants did not have a prima facie defense to

unlawful detainer; they had breached the lease by conducting commercial activity

on the Port's premises without the Port's permission. The defendants replied

that they were entitled to have a jury trial on their defenses of discrimination and

retaliatory eviction and that there were other fact issues.

         On August 12, Judge Dalton denied reconsideration of the motion to

abate.

         On September 2, Judge Forbes issued a memorandum opinion denying

the motion to vacate the unlawful detainer judgment.

         On November 14, Judge Forbes entered a judgment awarding the Port

$13,081.21 for costs and attorney fees against the Brewsters individually, their

marital community, and Kingston Adventures.

         This appeal followed.

                                 MOTION TO VACATE


         The defendants assign error to Judge Forbes' denial of their motion to

vacate the order granting restitution and damages. Denial of a motion to vacate
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is reviewed for abuse of discretion. Jones v. City of Seattle, 179 Wn.2d 322,

360, 314 P.3d 380 (2013).

      A party is entitled to vacation from a final judgment if the judgment is

undermined by "mistakes, inadvertence, surprise, excusable neglect or

irregularity in obtaining a judgment or order." CR 60(b)(1); Mosbrucker v.

Greenfield Implement, Inc., 54 Wn. App. 647, 652, 774 P.2d 1267 (1989). Judge

Forbes applied this standard. She accepted counsel's representation that he

was unaware the afternoon hearing on August 1 had been rescheduled.

Accordingly, she found the defendants' absence from that hearing was excusable

neglect. Nevertheless, she determined that the defendants had not set forth a

prima facie defense. Concluding that a trial would be a useless formality, she

held it was unnecessary to vacate the judgment.

       On appeal, the defendants maintain they presented a number of defenses

that deserved to be tried.

Real property

       Unlawful detainer is committed by a tenant of real property. RCW

59.12.030. The defendants contend that the berths are actually movable storage

racks, not real property. Therefore, they argue, the rules concerning unlawful

detainer actions do not apply in this case.

       We reject this argument. The berths were located at the Port of Kingston

Marina. The lease agreements granted access to the storage racks and also to

parking spaces and a dock gate. It was proper for the Port to bring an unlawful
No. 73668-0-1/6



detainer action to prevent the defendants from continuing to occupy and use

these portions of the Port's real property.

Timeliness of action


       The defendants contend that the unlawful detainer action was premature

because the Port did not allow adequate time for the breach to be cured. Under

RCW 59.12.030(4), tenants may avoid eviction if they cure a breach unrelated to

the payment of rent within 10 days after proper notice. That statute is

inapplicable here. The Port did not bring an eviction action alleging a breach.

The Port simply gave the defendants notice that their tenancy was being

terminated, as allowed by the lease. Such a notice to terminate is not

"curable"—"the tenant has no choice but to vacate within the notice period." 17

William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate:

Property Law § 6.80, at 440 (2d ed. 2004).

Equitable defenses

       In defending against an unlawful detainer action, a tenant may raise

equitable defenses "arising out of the tenancy." RCW 59.18.380. To protect the

summary nature of an unlawful detainer proceeding, our courts hold that

equitable defenses arise out of the tenancy only when they affect the tenant's

right to possession or are based on facts that excuse a tenant's breach.

Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 625, 45 P.3d 627 (2002).

       "If unlawful discrimination is the reason for an eviction, the defense

certainly affects the tenant's right of possession." Josephinium Assocs., 111 Wn.

App. at 625. Retaliatory eviction is also an affirmative equitable defense that
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may be asserted. Port of Lonqview v. Int'l Raw Materials, Ltd., 96 Wn. App. 431,

437, 979 P.2d 917 (1999).

       The defendants contend the court erred in refusing to hear their defenses

of gender discrimination and retaliatory eviction. But a landlord's unlawful

discrimination or retaliatory eviction can be asserted as a defense only if the

tenant is not "otherwise in breach of the lease agreement." Port of Lonqview, 96

Wn. App. at 438. Here, the defendants were in breach of the berth leases. They

did not have the Port's written permission for putting the berths to commercial

use. The business use agreement they originally had with the Port expired in

2012 and was not renewed. In those circumstances, the defendants did not have

a right to stay in possession even if they could show the Port was discriminating

or retaliating against Beth Brewster.

       Because the defendants were "otherwise in breach of the lease

agreement," the trial court did not err in refusing to give them a jury trial on their

defenses of gender discrimination and retaliatory eviction.

                                 MOTION TO ABATE

       The defendants assign error to Judge Dalton's denial of their motion to

abate. They contend that under the priority of action doctrine, their federal

lawsuit—filed before the Port's unlawful detainer action—gave the federal court

exclusive authority to resolve the controversy between the parties. This

contention is without merit. Generally, courts apply the priority of action doctrine

where two actions share the same subject matter, parties, and request for relief.

Bunch v. Nationwide Mut. Ins. Co., 180 Wn. App. 37, 41-42, 321 P.3d 266
No. 73668-0-1/8



(2014). The Port's unlawful detainer action was narrowly limited to the issue of

possession. Both in subject matter and in the nature of relief available, it was

fundamentally different from the federal lawsuit in which Kingston sought to

obtain punitive damages and attorney fees for various alleged constitutional and

statutory violations.

                            ATTORNEY FEE AWARD

       The defendants challenge Judge Forbes' decision awarding attorney fees

and costs to the Port.

Authorized by lease

       An award of attorney fees is proper only if authorized by contract, statute,

or a recognized ground of equity. Harmonv at Madrona Park Owners Ass'n v.

Madison Harmonv Dev., Inc., 160 Wn. App. 728, 739, 253 P.3d 101 (2011). The

Port relies on a provision in the berth leases: "In any action or proceeding for the

collection of any sums which may be payable hereunder, Lessee agrees to pay

to the Port a reasonable sum for the Port's expenses and attorney's fees."

(Emphasis added.) This provision, the defendants argue, authorizes an award of

fees to the Port only in an action to collect back rent. They say the unlawful

detainer proceeding was only an action to determine who had the right to

possess the berths, not an action for the collection of rent or other sums payable

under the lease.

       The Port's complaint demanded a writ of restitution, damages, an award of

"rent and charges coming due during the period of unlawful detention," and

attorney fees. This language sufficiently articulated that the action was for the


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No. 73668-0-1/9



collection of sums payable under the lease. And in fact, the judgment awarded

the Port $451.36 for the rent and leasehold tax due for June and July 2014. In

addition, Judge Forbes held the case open to determine whether the Port would

be entitled to further damages for unpaid rent or damage to the premises.

       The defendants point out that the Port refused their tender of rent for the

months following the service of the notice to terminate tenancy. This does not

undermine the Port's claim for rent and charges due. If the defendants did not

want to become liable for unpaid rent, they should have timely vacated the

premises after receiving the notice to terminate tenancy. The Port was entitled to

rent for the period of time the defendants unlawfully occupied the premises.

Amount awarded


       By order entered on November 14, 2014, Judge Forbes awarded the Port

$12,300 in attorney fees and $781.21 in costs. The defendants contend the

award must be set aside because the court did not make findings of fact

sufficient to support appellate review.

       A trial court is required to enter findings of fact and conclusions of law in

support of a contested award of attorney fees. Mahler v. Szucs. 135 Wn.2d 398,

434-35, 957 P.2d 632, 996 P.2d 305 (1998). The trial court erred in failing to do

so. However, the error is harmless. This was not a case where the trial court

unquestioningly accepted the fee affidavits of counsel. At the court's request, the

parties submitted briefing. The Port fully responded to defendants' objections to

the hourly rate, number of hours claimed, hours awarded for nonattorney time,

and hours awarded for duplicate line items. The Port conceded some errors in
No. 73668-0-1/10



the billing, and the court accepted those concessions by reducing the amount

originally claimed by the Port. It is obvious that the court found the Port's

explanations satisfactory. On appeal, the defendants have not pointed out any

specific errors in the Port's explanations. Remand for entry of findings of fact

and conclusions of law would be pointless in these circumstances.

       The defendants contend the court should have awarded attorney fees only

for work attributable to collection of rent. But the same facts that established the

Port's right to regain possession also established the Port's right to back rent.

No segregation was required. The Port was entitled to an award of attorney fees

for the entire action.

Identity of liable party or parties

       The defendants claim the trial court erred by denying them a jury trial on

the disputed question of who the contracting parties were. The Port sued the

Brewsters individually and as a marital community. The Port also sued Kingston

Adventures. But, as the defendants showed in their pleadings and arguments

below, the only name on the berth leases is Beth Brewster's. The signatures on

the business use agreement indicate that the Brewsters were signing for the

company, not individually. Thus, the defendants submitted evidence that the

tenant occupying the property was Kingston Adventures, not the Brewsters. It is

not clear that the Brewsters are responsible—individually or as a marital

community—for the rent, damages, and attorney fees due to the Port.

       An unlawful detainer defendant is entitled to a jury trial "whenever an issue

of fact is presented by the pleadings." RCW 59.12.130. The issue of proper


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identification of the contracting parties was presented by the pleadings, but it was

not resolved by the findings of fact the court entered on August 1, 2014. This is

not surprising. As the defendants recognize in their reply brief, the Port

understandably named every possible defendant in order to conclusively resolve

the issue of possession against every entity who potentially would claim to be a

tenant. For the purpose of restoring possession to the Port, it was not important

for the court to make precise findings about who was liable on the leases.

       Proper identification of the contracting parties does, however, have

significance with respect to liability for the monetary awards. The court's

memorandum opinion denying the motion to vacate did not address the issue.

The court began its ruling by noting that the Port had agreements with "one or

more of the Defendants." But the ruling continued by referring to all of the

defendants collectively as being in breach of the leases. The court's failure to

resolve the individual liability issues was a second "irregularity" justifying vacation

of the judgment. See Mosbrucker, 54 Wn. App. at 652.

       We conclude the court erred in denying the defendants a trial on the issue

of the identity of the tenant or tenants liable for the monetary awards. In all other

respects, the denial of the motion to vacate is affirmed. The award of attorney

fees and costs is also affirmed, save for any change that might become

necessary if not all the defendants are held liable.

       The Port requests an award of attorney fees on appeal. The request is

granted. "A contract providing for an award of attorney fees at trial also supports

such an award on appeal." Hall v. Feigenbaum, 178 Wn. App. 811, 827, 319


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No. 73668-0-1/12



P.3d61, review denied, 180Wn.2d 1018(2014). The Port has prevailed on all

issues but one. The trial court on remand shall determine an appropriate award

of attorney fees to the Port for this appeal.

       Reversed in part, affirmed in part, and remanded for further proceedings

consistent with this opinion.




WE CONCUR:



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