                                                                             47-


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                             (.11
                                                                             CO
MARIAN LANDA,                               )
                                            )         No. 74406-2-1
                    Respondent,             )
                                            )        DIVISION ONE
             v.                             )
                                            )         UNPUBLISHED OPINION
HAELLEN HOLIDAY,                            )
                                            )
                    Appellant.              )        FILED: April 24, 2017
                                            )
      APPELWICK, J. — Landa brought an unlawful detainer action to remove

Holiday from property that Landa owned. The trial court ruled in favor of Landa.

Holiday argues that, as Landa's employee, she was exempt from the Residential

Landlord-Tenant Act of 1973.1 We affirm.

                                    FACTS

       Haellen Holiday was Marian Landa's massage therapist. Landa offered

Holiday a place to live. The parties did not sign a lease. The record does not

reflect the specific terms of the agreement.2 The offer was part of an informal

"barter agreement," although Holiday was not Landa's employee.


      1  Chapter 59.18 RCW.
      2  Holiday appended two declarations to her opening brief. These
declarations discuss the nature of the arrangement between Landa and Holiday,
and attack Landa's credibility. We do not consider these declarations, because
"[a]n appendix [to an appellate brief] may not include materials not contained in
No. 74406-2-1/2


      Holiday began her tenancy in May 2015. On October 22, 2015, Landa

notified Holiday in writing that she was terminating their agreement for financial

reasons. Landa planned to rent the entirety of the premises as a single unit, and

she asked Holiday to vacate the premises by December 1, 2015.

      On November 6, 2015, after receiving puzzling messages from Holiday,

Landa visited the premises. Landa discovered that Holiday had intentionally

destroyed and removed many of Landa's personal belongings. On November

10, 2015, Holiday was served with a three day notice to vacate. On November

18, 2015, the trial court granted Landa's motion to show cause and scheduled

the show cause hearing for November 30, 2015.

       Both parties appeared at the show cause hearing. The trial court signed

an order directing issuance of writ of restitution on November 30, 2015.3 After

that hearing, on the same day, Holiday vacated the premises without forcing

Landa to actually obtain a writ of restitution. Holiday appeals.4

                                   DISCUSSION

       Holiday argues that the trial court lacked subject matter jurisdiction,

because Holiday was an employee of Landa. She claims this is so, because



the record on review without permission from the appellate court." RAP
10.3(a)(8).
       3 The copy of this order in the record does not evidence the trial court file
stamp. But, neither party disputes that this is an accurate copy of the trial court's
order.
       4 Holiday's notice of appeal stated that she was appealing the judgment
and order entered by the trial court. But, no judgment appears in the record.
And, the only order in the record that pertains to her substantive arguments is the
order directing issuance of writ of restitution. Therefore, we presume that this is
the order that Holiday intends to appeal.

                                         2
No. 74406-2-1/3


under RCW 59.18.040(8), employees are generally exempt from the Residential

Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW. In response, Landa

argues that Holiday failed to preserve this argument, the issue is moot, and the

trial court nevertheless had subject matter jurisdiction. Landa also argues that

we should award attorney fees in her favor, because Holiday's appeal is

frivolous.

  I.   Exemption from RLTA

       Holiday contends that she is exempt from an unlawful detainer action

because she was an employee of Landa.5 An "employee of a landlord whose

right to occupy is conditioned upon employment in or about the premises" is

exempt from the RLTA. RCW 59.18.040(8). Holiday claims that, because she

was Landa's employee, RCW 59.18.040(8) divested the trial court of subject

matter jurisdiction. And, RAP 2.5(a)(1) permits parties to argue subject matter

jurisdiction for the first time on appea1.6




       5 Landa argues that this case is moot. A case is moot if the court cannot
provide the basic relief originally sought, or can no longer provide effective relief.
Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 622, 45 P.3d 627 (2002).
However, an unlawful detainer action is not moot simply because the tenant does
not have possession of the premises at the time of appeal. Hous. Auth. v.
Pleasant, 126 Wn. App. 382, 388, 109 P.3d 422 (2005). Rather, if the tenant
does not concede the right of possession, she has the right to have the issue
determined. See id. at 389. And, although no writ was ultimately necessary,
Holiday vacated the premises only after the trial court authorized the issuance of
the writ of restitution. Thus, while Holiday may have vacated the premises
without court compulsion, the record suggests that she did not "voluntarily"
surrender the premises on her own accord. We therefore decline to deem this
case moot, and, to the extent the record allows, we address the authority cited by
Holiday.
       6 Nothing in the record reflects the arguments that Holiday made below.



                                              3
No. 74406-2-1/4


       The trial court's subject matter jurisdiction in cases involving the title to

real property is expressly granted by the state Constitution and has not been

vested exclusively in some other court. MHM&F, LLC v. Pryor, 168 Wn. App.

451, 460, 277 P.3d 62(2012). It is not statutory. See id. at 459. Thus, whether

the trial court correctly applied the employee exemption to the RLTA does not

bear on the trial court's subject matter jurisdiction.7

       Holiday's argument is that the statutory exemption found in RCW

59.18.040(8) applies to her. Unlike subject matter jurisdiction, this is a question

of law which can be waived if not raised below. See RAP 2.5(a). It was not

raised and has been waived.8

       The trial court did not lack subject matter jurisdiction, and did not err in

ordering the issuance of a writ of restitution.

 II.   Attorney Fees

       Landa asks that we award attorney fees in her favor because Holiday's

appeal was frivolous. RAP 18.9(a) permits an appellate court to award a party

attorney fees when the opposing party filed a frivolous appellate action.

Advocates for Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd., 170



       7 Holiday also cites Sullivan v. Purvis, 90 Wn. App. 456, 966 P.2d 912
(1998) for the proposition that the trial court lacked subject matter jurisdiction.
That case addressed whether the landlord complied with statutory notice
requirements. Id. at 458-59. But, Holiday argues that she was exempt from the
RLTA, not that notice was insufficient. Therefore, Sullivan does not bear on the
merits of Holiday's arguments.
       8 The record does not prove that Holiday was Landa's employee. The
record shows that Holiday and Landa had some form of barter agreement. But,
Landa's declaration explicitly states that Holiday was not her employee. Nothing
in the record disputes Landa's assertion.

                                           4
No. 74406-2-1/5


Wn.2d 577, 580, 245 P.3d 764 (2010). An appeal is frivolous if, considering the

entire record, the court is convinced that the appeal presents no debatable

issues upon which reasonable minds might differ, and that the appeal is so

devoid of merit that there is no possibility of reversal. Id. All doubts as to

whether the appeal is frivolous should be resolved in favor of the appellant. Id.

       Holiday's argument that her status as Landa's employee divested the trial

court of subject matter jurisdiction lacked merit.      Likewise, any jurisdictional

argument based on an employee-employer relationship was waived because

nothing in the record shows that she raised the arguments below. See RAP

2.5(a). Holiday's appeal therefore had no merit and no possibility of reversal.

We award attorney fees to Landa, subject to her compliance with RAP 18.1(d).

       We affirm.




WE CONCUR:



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