                                                                                                                  FILED
                                                                                                        COURT OF APPEALS
                                                                                                                DIVISION II
                                                                                                       201511AR 17 M1 8:         1
                                                                                                       S1 " T   OP &          TO !




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                     DIVISION II

 MARK         DOYLE        and      CAROLYN          DOYLE,                         No. 44708 -8 -II
 husband and wife,


                                         Respondents,


             v.



 JAMES            GOUGHNOUR,             and   all    known                 UNPUBLISHED OPINION
 occupants of 1202 W. Young St., Elma, Wash.,

                                         Appellant.




         LEE, J. —    James Goughnour appeals a post -mandate judgment awarding trial court attorney

fees and costs, damages, and appellate attorney fees and costs to Mark and Carolyn Doyle in this

unlawful      detainer    action.    Goughnour argues that the trial court lacked authority to grant this

additional relief.       We hold that the Doyles waived the right to recover trial court attorney fees,

costs, and damages when they did not pursue this relief during the initial show cause hearing on

their unlawful detainer complaint. However, we hold that the appellate rules authorized the trial

court   to   enforce our award of appellate          attorney fees    and costs   to the Doyles.   Accordingly, we

reverse in part, affirm in part, and remand for correction of the judgment.


                                                           FACTS


         In 2009, the Doyles and Goughnour entered into a written rental agreement providing that

Goughnour         would   pay $ 1, 000   per month    to   rent   property from the Doyles.    On April 15, 2010,
No. 44708 -8 -II




they entered into a new agreement that expressly superseded all previous agreements, including

the 2009 agreement, and provided that Goughnour would pay monthly rent of $800 beginning May

1, 2010. The agreement provided further that either party could terminate the lease upon 30 days'

notice.



          In October 2010, the Doyles filed           a    complaint    for   eviction/ unlawful   detainer.   The


complaint alleged     that Goughnour     had   not paid rent since      August 2010.      The Doyles requested


termination of the tenancy, issuance of a writ of restitution, a monetary judgment of $1, 600 for

delinquent    rent, and an award of    attorney fees      and costs.   The trial court issued an order to show


cause why it should not grant the relief requested.

          Goughnour answered that he had an accrued rental credit due to rent that he overpaid under


the 2009 agreement and that he was entitled to apply this overpayment to the rent due in September

and October 2010. He asserted several other affirmative defenses as well.


          During the show cause hearing on November 1, 1 the only relief that the Doyles requested
was   a writ of restitution.    The trial court granted the show cause order and issued a writ of


restitution. Both the order and the writ were prepared by the Doyles' attorney, and neither awarded

damages, attorney fees and costs, or reserved judgment thereon.

          Goughnour   appealed   the   show cause order and       the   writ of restitution.   In an unpublished


opinion, we affirmed the trial court and awarded the Doyles attorney fees and costs on appeal.

Doyle   v.   Goughnour,   noted at   167 Wn.   App.   1018, 2012 WL 950091.         We subsequently mandated



1 The transcript of this hearing is part of the record in Goughnour' s prior appeal under No. 41538 -
1 - II. We may take judicial notice of court records in the same case. ER 201( f);Spokane Research
  Defense Fund v.     City   of Spokane, 155 Wn.2d 89, 98, 117 P. 3d 1117 ( 2005).
No. 44708 -8 -II



the case to the trial court for further proceedings in accordance with our opinion. Approximately

three weeks later, our commissioner granted the Doyles' motion to reopen the time to file an

affidavit of fees and expenses. 2 The commissioner then awarded the Doyles appellate attorney

fees of $5, 760 and appellate costs of $35. 95. We denied Goughnour' s motions to modify the ruling

extending the time to file the attorney fee request and the award of appellate attorney fees and

costs in a single order, and the Supreme Court denied review of that ruling.

          On January 14, 2013, the Doyles moved for entry of judgment in the trial court in the

amounts awarded by this court, plus an additional $ 1, 600 in unpaid rent for September and October

2010, and trial court attorney fees of $1, 800 and trial court costs of $377 incurred in the pre- appeal

proceedings, for a total amount of $9, 572. 95 plus interest. The trial court entered judgment for the

amounts requested in favor of the Doyles. Goughnour appeals that judgment.

                                                    ANALYSIS


A.        AUTHORITY TO AWARD DAMAGES /TRIAL COURT ATTORNEY FEES AND COSTS


          Goughnour contends that the trial court lacked authority to enter the January 2013

judgment because the November 2010 show cause order was a final order that did not allow the


Doyles to seek additional relief in the form of damages or trial court attorney fees and costs. We

review    this   challenge   de   novo.   See City of College Place v. Staudenmaier, 110 Wn. App. 841,

845 -46, 43 P. 3d 43 ( applying de novo review to questions of law), review denied, 147 Wn.2d 1024

 2002).




2 The affidavit was due within 10 days of the filing of our decision, but the commissioner extended
the   deadline because       we neglected    to   send   the Doyles'   attorney   a   copy   of   the   opinion.   RAP
18. 1( d).



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No. 44708 -8 -II



         As we recognized in our previous opinion, this was an unlawful detainer action under


chapter 59. 18 RCW. Doyle, 2012 WL 950091, at * 2; CP 114. Upon filing an action for unlawful

detainer, the plaintiff may apply for an order directing the defendant to appear and show cause

why a writ of restitution should not issue restoring possession ofthe property to the plaintiff. RCW

59. 18. 370;   Country Manor MHC, LLC v. Doe, 176                         Wn.   App.   601, 612, 308 P. 3d 818 ( 2013). The


trial court may grant a writ of restitution at the show cause hearing if the right to possession is

clear, and it may grant other requested relief if there are no substantial issues of material fact.

Indigo Real Estate Services, Inc. v. Wadsworth, 169 Wn. App. 412, 421, 280 P.3d 506 ( 2012);

Hartson P' ship      v.   Goodwin, 99 Wn.            App.   227, 230 -31, 991 P. 2d 1211 ( 2000).                 The court' s


jurisdiction in unlawful detainer proceedings is limited to the right to possession of real property

and a few related issues such as damages and rent due. Angelo Prop. Co. v. Hafiz, 167 Wn. App.

789, 811 n.38, 274 P. 3d 1075 ( quoting Phillips v. Hardwick, 29 Wn. App. 382, 385 -86, 628 P.2d
506 ( 1981)),      review   denied, 175 Wn.2d 1012 ( 2012).                       In addition, the prevailing party in an

unlawful    detainer      action    may   recover     his   or   her      costs    and   reasonable    attorney fees.      RCW


59. 18. 290( 2).


         Because unlawful detainer is a special statutory form of action that involves different and

speedier procedures         than ordinary      civil actions,        it   cannot   be turned into     an   ordinary   action.   17


WILLIAM B.         STOEBUCK         AND   JOHN W. WEAVER, WASHINGTON                           PRACTICE:       REAL ESTATE:


PROPERTY LAW § 6. 80,          at   444 ( 2d   ed.   2004).      Therefore, questions that the statute allows to be


tried in an unlawful detainer action must be tried at the show cause hearing, or they will be barred.

17 STOEBUCK,        supra, §   6. 80 at 444.




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No. 44708 -8 -II




          Our Supreme Court applied this principle in rejecting an action for damages that a landlord

brought after successfully prosecuting an unlawful detainer action to judgment. Munro v. Irwin,

163 Wash. 452, 458, 1 P. 2d 329 ( 1931).               Because the damages sought in the second action were


based on the breach that led to the first action, the initial judgment was res judicata .as to the

damages claim. Munro, 163 Wash. at 458. By not seeking damages in the initial unlawful detainer

action, the landlord waived his right to recover those damages and was limited to the relief he had


obtained earlier.       Munro, 163 Wn.        at   457 -48;   see   Caine &      Weiner v. Barker, 42 Wn. App. 835,

840, 713 P. 2d 1133 ( 1986) ( citing        Munro in stating that judgment contains final word on all points

that could   have been      raised and adjudicated        in the    action) (   Williams, J. concurring).

          The Doyles requested damages and attorney fees in their complaint for unlawful detainer

but did   not pursue      that   request   during   the   show cause     hearing. That hearing resulted in a final

judgment that did not address damages, attorney fees, or costs, or reserve any claim for such relief.

See Chambers       v.   Hoover, 3 Wash. Terr. 20, 21, 13 P. 905 ( 1887) ( order awarding writ of restitution


is final judgment). In their postjudgment motion, the Doyles sought to recover the unpaid rent


damages that had         prompted    their initial    complaint.      Because they could have pursued this relief

and their related request for attorney fees and costs during the initial show cause hearing but failed

to do so, their request for postjudgment relief was barred by principles of res judicata and waiver.

See West    v.   Gregoire, 184 Wn.         App.    164, 171, 336 P. 3d 110, 113 ( 2014) ( when a party asserts a


claim in pleadings but does not press the claim in any way at trial, the party abandons the claim).

          This is not a case where the postjudgment motion was simply an attempt to clarify the

earlier judgment, as was the case in Excelsior Mortgage Equity Fund II, LLC v. Schroeder, 171

Wn.   App.   333, 287 P. 3d 21 ( 2012),       review      denied, 177 Wn.2d 1005 ( 2013). The motion at issue




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No. 44708 -8 -II



in Excelsior Mortgage sought approval of a procedure whereby the purchaser could effectuate the

judgment to which it had already proved it was entitled: a judgment for restitution of the premises.

171 Wn. App. at 344. The trial court had authority to grant the postjudgment motion and to thereby

enforce its existing judgment. Excelsior Mortgage, 171 Wn. App. at 345.

           The Doyles' motion sought to obtain a new judgment rather than enforce an existing one.

Because they waived the right to recover the damages, attorney fees, and costs they requested in

their postjudgment motion, we must remand so that the awards for unpaid rent and trial court


attorney fees and costs can be stricken from the judgment.

B.         APPELLATE FEES AND COSTS


           Goughnour also contends that the trial court erred in entering a judgment for the Doyles''

appellate    attorney fees    and costs.   Our   review of   this legal   question   is   again   de   novo.   City of

College Place, 110 Wn. App. at 845 -46.

           We retain the power to make discretionary awards of attorney fees and costs on appeal,

even after   the   mandate   issues. RAP 12. 7( c);   Thompson v. Lennox, 151 Wn. App. 479, 488 -89, 212

P. 3d 597 ( 2009).     After the mandate issued in the earlier appeal, the commissioner granted the


Doyles an extension of time to file their request for attorney fees and costs and awarded them

appellate attorney fees and costs of $5, 795. 95. We rejected Goughnour' s motions to modify these

rulings,    and the Supreme Court denied Goughnour' s motion for discretionary review.

Goughnour' s challenges having been rejected, and the trial court was authorized to enforce our

award of appellate attorney fees and costs. RAP 18. 1( h), RAP 14. 6( c).




                                                         6
No. 44708 -8 -II




        We reverse the award of damages for unpaid rent and the award of trial court attorney fees

and costs, affirm the award of appellate attorney fees and costs, and remand for correction of the

judgment accordingly.

        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.




 We concur:




                    Johanson, .   J.




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