Don Kennedy Properties v. Joel Christopher Holmes ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DON KENNEDY PROPERTIES, LLC,
d/b/a DON KENNEDY REAL ESTATE, as No. 69815-0-1
r-.->
agent for the owner,
DIVISION ONE ~
Respondent,
UNPUBLISHED OPINION
JOEL CHRISTOPHER HOLMES and ALL
OTHER OCCUPANTS,
FILED: January 17, 2017
Appellant.
Appelwick, J. — DK initiated an unlawful detainer action against Holmes,
due to accumulated garbage in his apartment. A commissioner ruled in favor of
DK. Holmes argues that he should have been transported from the jail to appear
in person at the show cause hearing, that the summons was defective, that the
monetary judgment entered against him was erroneous, that DK failed to give
adequate notice, and that RCW 59.18.130 is unconstitutional. We affirm.
FACTS
Joel Christopher Holmes was a tenant in a property owned by Don Kennedy
Properties LLC ("DK"). DK discovered that the apartment was "in a state of
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extreme clutter." On November 19, 2012, DK served Holmes with a ten day notice
to comply or vacate that stated,
Your unit is in a state of extreme clutter and disarray. You have
excessive amounts of paper, waste, trash, and other detritus and
junk in your apartment. This violates RCW 59.18.130(1) that
requires you to "Keep that part of the premises which [you occupy]
as clean and sanitary as the conditions of the premises permit" and
RCW 59.18.130(2) that requires you to "Properly dispose from [your]
dwelling unit all rubbish, garbage, and other organic or flammable
waste, in a clean and sanitary manner at reasonable and regular
intervals."
The corrective action required is:
You must remove all excess property and other items and clean your
apartment within the time allowed for compliance with this notice.
(Alterations in original.) On December 10, 2012, DK filed a complaint for unlawful
detainer. On December 27, 2012, a commissioner found in favor of DK, and
entered a monetary judgment against Holmes totaling $1,696 in attorney fees,
unpaid rent, and other costs.
DISCUSSION
We discern five arguments from Holmes's briefing. He argues that his
constitutional rights were violated when, due to incarceration, he did not appear in
person at the show cause hearing. He argues that the summons he received was
defective. He argues that the trial court erred in entering a monetary judgment
against him. He argues that DK illegally entered his apartment without notice. He
argues that RCW 59.18.130(1) and (2) are unconstitutionally vague. Finally, we
also address whether the prevailing party is entitled to attorney fees and whether
Holmes's appellate filing fee should be waived due to indigency.
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I. Appearance at Show Cause Hearing
Holmes first argues that his due process rights were violated because the
commissioner did not arrange for Holmes to appear at the show cause hearing in-
person. Holmes claims he was incarcerated at the time on an unrelated matter.
He therefore appeared telephonically.
But, nothing in the record indicates that Holmes requested or argued below
that he should have been transported from the jail to appear at the hearing in
person. We will generally not review arguments raised for the first time on appeal.
RAP 2.5(a). We will review questions of "manifest" constitutional magnitude raised
for the first time on appeal. State v. Kirkman, 159 Wash. 2d 918, 934, 155 P.3d 125
(2007). But, if the trial record is insufficient to determine the merits of the
constitutional claim, the error is not "manifest" and review is not warranted. ]a\ at
935. Based on the insufficiency of the record, any claimed error here is not
manifest.
II. Validity of Summons
Holmes argues that the summons he received was defective and the
commissioner therefore lacked jurisdiction. Nothing in the record shows that
Holmes raised the issue of a defective summons in the trial court. It is true that
RAP 2.5(a)(1) explicitly permits a party to raise lack of jurisdiction for the first time
on appeal. However, we have previously held that arguments that a summons is
defective "go to something other than subject matter jurisdiction" and therefore
may not be raised for the first time on appeal. MHM & F. LLC v. Pryor, 168 Wn.
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App. 451, 460, 277 P.3d 62 (2012). Therefore, we decline to address this
argument.
III. Monetary Judgment
Holmes also argues that the trial court erred in entering a $1,696 judgment
against him. This included $497 in unpaid rent, $700 in attorney fees, and $499 in
court costs. The judgment explicitly reserved the issue of damages to the
premises. Under RCW 59.18.410 and 59.18.290(2), a tenant may be held liable
for rent owed, attorney fees, and costs. Here, though he assigns error to the
judgment in its entirety, Holmes makes specific arguments regarding only the
attorney fees and costs awarded. We review an award for of attorney fees and
court costs for abuse of discretion. Bevan v. Meyers, 183 Wash. App. 177, 188, 334
P.3d 39 (2014).
First, Holmes argues that the $700 fee award to DK was an abuse of
discretion, because an attorney paid via retainer instead of hourly should not be
awarded attorney fees.1 He provides no authority that such a distinction has been
recognized by our appellate courts. See RAP 10.3 (a)(6) (requiring appellants to
provide "citations to legal authority"). Nor has Holmes shown that the
commissioner abused his discretion in the amount of attorney fees awarded.2
1 Nothing in the record establishes that DK's attorneys were in fact paid on
retainer, but we assume this fact for the purposes of argument.
2 Holmes also argues that DK should not have received attorney fees
because no rental agreement provided for attorney fees to a prevailing party in a
lawsuit. But, the existence of such an agreement is irrelevant, because RCW
59.18.410 and RCW 59.18.290 authorize a court to award attorney fees to a
prevailing party in an unlawful detainer action.
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Second, Holmes argues that the commissioner abused his discretion in
awarding DK $499 in court costs. Holmes primarily argues that the state of his
apartment did not cause "specific economic harm" to DK. But, the judgment
explicitly did not award costs for "damage to the premises." Rather, the judgment
awarded court costs, which RCW 59.18.290(2) allows. The commissioner did not
abuse his discretion in awarding court costs.
IV. Sufficiency of Notice
Holmes asserts that DK illegally entered his apartment without sufficient
statutory notice.3 He contends in his reply brief that under applicable statutes he
should have received 30 days' notice prior to this action, rather than the 10 days'
notice that he actually received.
But, nothing in the record shows that Holmes argued insufficient notice in
the proceeding below. We therefore do not address Holmes's notice arguments.
See RAP 2.5(a) ("The appellate court may refuse to review any claim of error which
was not raised in the trial court."); Hall v. Feigenbaum, 178 Wash. App. 811, 817-18,
319 P.3d 61 (2014) (declining to review issues because appellant "did not raise
the associated issues below"); Dvkstra v. County of Skagit, 97 Wash. App. 670, 676,
985 P.2d 424 (1999) (declining, pursuant to RAP 10.3(c), to address issue first
raised in reply brief).
3 Holmes asserts that this violated both landlord-tenant statutes and the
Fourth Amendment prohibition on unreasonable searches and seizures. But,
because DK is not a state actor, the Fourth Amendment does not apply. See State
v. Eisfeldt. 163 Wash. 2d 628, 635 n.3, 185 P.3d 580 (2008) ("Article I, section 7 and
Fourth Amendment protections apply only to searches by state actors, not to
searches by private individuals."). Therefore, we treat this as an allegation that
DK's entry violated Washington's landlord-tenant statutes.
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V. Constitutionality of RCW 59.18.130(1) and (2)
Holmes asserts that RCW 59.18.130(1) and (2) are unconstitutionally vague
because they fail to specifically define what constitutes "garbage." Although the
record does not show that Holmes challenged RCW 59.18.130's constitutionality
below, we exercise our discretion to briefly address it. RAP 2.5(a)(3); see also
Parmelee v. O'Neel. 145 Wash. App. 223, 232-33,186 P.3d 1094 (2008) (addressing
constitutionality of statute for the first time on appeal), reversed in part on other
grounds by 168 Wash. 2d 515, P.3d 723 (2010).
We review the constitutionality of statutes de novo. Hale v. Wellpinit Sch.
Dist. No. 49, 165 Wash. 2d 494, 503, 198 P.3d 1021 (2009). Statutes are presumed
constitutional, and the standard for finding a statute unconstitutionally vague is
high. State v. Watson, 160 Wash. 2d 1, 11, 154 P.3d 909 (2007). The presumption
in favor of a law's constitutionality should be overcome in only exceptional cases.
Id. One who challenges a statute's constitutionality for vagueness bears the
burden of proving beyond a reasonable doubt that it is unconstitutionally vague,
id
Holmes argues one man's trash is another man's treasure. The statute
does not use the term "trash," it uses the terms "rubbish" and "garbage." RCW
59.18.130(2). The terms "rubbish" and "garbage" have ordinary and accepted
meanings. See, e.g.. Webster's Third New International Dictionary 1983
(2002) (defining "rubbish" as "miscellaneous useless valueless waste or rejected
matter"); JU at 935 (defining "garbage" as "refuse of any kind"). When a term "has
an ordinary and accepted meaning" it gives sufficient notice of the conduct that the
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statute prohibits. See State v. Sigman. 118 Wash. 2d 442, 446-47, 826 P.2d 144
(1992) (holding that "knowingly" is sufficiently definite because it "has an ordinary
and accepted meaning"). Washington courts have often held that the fact that a
term could be clearer does not render a statute impermissibly vague. See, e.g.,
Watson. 160 Wash. 2d at 11 ("[W]e do not invalidate statutes for vagueness simply
because they 'could have been drafted with greater precision.'" (quoting City of
Spokane v. Douglass, 115 Wn2d 171, 179, 795 P.2d 890 (1992))); State v.
Halstien, 122 Wash. 2d 109, 118-19, 857 P.2d 270 (1993) (holding that "sexual
motivation" is not impermissibly vague). Holmes has not carried his heavy burden
to show beyond a reasonable doubt that RCW 59.18.130(1) and (2) are
unconstitutionally vague.
VI. Attorney Fees
DK requests attorney fees on appeal. Under RCW 59.18.410, a landlord
that succeeds in an unlawful detainer action may be awarded reasonable attorney
fees. DK succeeded at the trial court and has prevailed on appeal. We therefore
award DK reasonable attorney fees subject to its compliance with RAP 18.1(d).
VII. Motion for Return of Filing Fee
On April 4, 2013, the Washington Supreme Court denied a motion seeking
expenditure of public funds, and Holmes ultimately paid the Court of Appeals filing
fee. Holmes filed a motion that seeks a refund of the filing fee in this case (and a
handful of previous cases) due to indigency. Holmes has failed to identify how
circumstances have changed since the Supreme Court's ruling that Holmes must
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pay the filing fee. We therefore deny Holmes's request for a refund of the filing fee
in this case.
We affirm.
WE CONCUR:
4L./ feofete+