### FILED APRIL 14,2015 In the Office oftheClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OFTHE STATE OFWASHINGTON DIVISION THREE W.L. "LEE" BARR and SUSAN C. BARR, ) No. 32432-0-111 husband and wife, ) ) Appellant, ) ) 

### v. ) ) PUBLISHED OPINION BONITA "NITA" 

### I. YOUNG, ) ) Respondent. ) BROWN,

### J.

- W. L. "Lee" Barr and Susan C. Barrappeal the trial court's judgmenton an arbitration award favoring theirformertenant, Bonita "Nita" Young. The Barrs, who sued for unlawful detainer, mainly contend the court erred in referring Ms. Young's damages counterclaims to mandatory arbitration. Because premise possession issues had been resolved, thetrial courtdid not abuse its discretion in effectively converting the remaining counterclaims into a civil suitwhen referring the
caseto mandatory arbitration. Accordingly, we affirm. FACTS In 2011, the Barrs and Ms. Young entered into a one-year lease in which the Barrswere the landlords and Ms. Young thetenant. Issues between the Barrs and Ms. Young arose shortly after Ms. Young began hertenancy. The Barrs claimed Ms. YoungNo. 32432-0-111 Barr

## v. Young willfully destroyed their property. On September 3, 2011, Ms. Young permitted Mr. Barr to enterthe house to repairthe kitchen sink and a screen door. But Mr. Barr additionally installed wooden window dowels that prevented anyonefrom opening the windows morethan afew inches and nailed the bathroom window shut. While Mr. Barr asserted the dowelswere necessaryforsafety and security, the Barrs had complained Ms. Young leftthe windows wide open. Upon discovering the dowels, Ms. Young contacted the Yakima Police Department. An officer advised Ms. Young the dowels created a safety issue and needed to be removed. After removing the dowels herself because Mr. Barr refused to doso, Ms. Young received a letterfrom Mr. Barr threatening criminal prosecution. The Barrs also alleged other leaseviolations related to policies for pets, smoking, occupancy limits, and parking. In early September2011, the Barrs unsuccessfully tried to terminatethetenancy, then sued Ms. Young for unlawful detaineron October 14,2011. Ms. Young answered and counterclaimed on October20, 2011, asserting hereviction was retaliatory and seeking damages. In early November2011, priorto any hearing, Ms. Young began looking for a new place to live; she voluntarily vacated the rental house on December 1, 2011. The Barrs' attorney in this matterwithdrewfrom representing them on December 1,2011. On December23, 2011, upon failure to receive a reply to Ms. Young's answer, Ms. Young moved for an order ofdefault. The Barrs, pro se, responded on January 13, 2012, partly indicating they had recovered the premises and asserting the unlawful detainershould be dismissed.

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In August 2012, Ms. Young successfully petitioned to move the case to mandatory arbitration. Although the Barrs formally objected, the arbitration hearing was held after due notice on December 18, 2012; the Barrs did not appear. The arbitrator awarded Ms. Young $4,463.67 for damages. The Barrs requested a trial de novo on January 2, 2013, but apparently failed to pay necessaryjury fees. On February 7, 2014, the court converted Ms. Young's arbitration award to a moneyjudgment against the Barrs. The court denied the Barrs' motion for reconsideration. The Barrs appealed. ANALYSIS The issue is whether the trial court erred in ordering mandatory arbitration under chapter 7.06 RCW. The Barrs contend the court misapplied unlawful detainer lawwhen deciding Ms. Young's damages counterclaim arising under the Barrs' unlawful detainer action was suitable for mandatory arbitration. They argue the court should have vacated the arbitration award and dismissed the unlawful detainer action with prejudice. We review a trial court's determination ofarbitrability for abuse ofdiscretion. Fernandes v. Mockridge, 75 Wn. App. 207, 211, 877 P.2d 719 (1994). A trial court abuses its discretion when its decision is "manifestly unreasonable or based on untenable grounds." Id. RCW 59.12.030 authorizes unlawful detainer actions, which are summary proceedings used to "determine the right ofpossession as between landlord and tenant." Munden v. Hazelrigg, 105Wn.2d 39, 45, 711 P.2d 295 (1985). Because unlawful detainer actions are summary in nature, the action itself is narrowly construed



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and is "limited to the question ofpossession and related issues such as restitution ofthe premises and rent." Id.; see Angelo Properly Co., LP v. Hafiz, 167 Wn. App. 789, 808, 274 P.3d 1075, reviewdenied, 175Wn.2d 1012 (2012) (reiterating that "the primary issue forthe trial court to resolve is the 'right to possession' as between a landlord and
a tenant"). In unlawful detainer proceedings, the trial court has statutorily limited jurisdiction and cannot resolve issues outside the scope of RCW 59.12.030. Angelo Properly Co., LP, 167Wn. App. at 809. Generally, counterclaims in unlawful detaineractions are not allowed. Munden, 105Wn.2d at45. But counterclaims and affirmative equitable defenses are allowed when "based on facts which excuse a tenant's breach." Id. (quoting First Union Mgt., Inc. v. Slack, 36 Wn. App. 849, 854,679 P.2d 936 (1984» (stating breach ofimplied warranty of habitability and breach ofcovenant ofquiet enjoyment are allowed); RCW 59.18.380. Specificto oursituation, a collateral rule is applicable: Where the right to possession ceases to be at issue at any time between the commencement ofan unlawful detainer action and trial ofthat action, the proceeding may be converted into an ordinary civil suitfor damages, and the parties may then properly assert any cross claims, counterclaims, and affirmative defenses. Munden, 105Wn.2d at45-46. No particular method exists forthe trial court to convert
an unlawful detaineraction into a civil suit. Id. at47 (noting because the "trial court has inherent powerto fashion the method bywhich an unlawful detaineraction is converted to an ordinary civil action," the court could require amended pleadings orgranta



### 4No. 32432-0-111 Barrv. Young continuance). The collateral rule prevents lawsuit multiplicity and enhancesjudicial economy by sparing the parties the need to maintain two suits. Id. at46-47. For example, in Munden, the lessorfiled an unlawful detainer action. Id. at41. The tenants counterclaimed for car damagessuffered on the rented propertywhen a rock retaining wall collapsed. Id. The tenants voluntarily vacated the property and submitted an affidavit stating theirtenancywas terminated. Id. at 47. Thetrial court dismissed the tenants' counterclaim for lack ofsubject matterjurisdiction. Id. at42. The court remanded the case to thetrial courtfor a determination ofthe tenants' counterclaim becausethetenants' actions demonstrated no issue regarding a right to possession and the counterclaim could have been converted to a civil suit. Id. at47. ButseeAngelo, 167Wn. App. at 816-17 (finding although there was no question regarding right to possession, the unlawful detainer action was not converted to a civil suit because the trial court expressly stated it did not convert the action before it assumedjurisdiction overthe tenant's counterclaim). Underthe Residential Landlord-TenantAct of 1973, chapter 59.18 RCW, landlords and tenants may agree to arbitration governed by chapter 7.04A RCW. RCW 59.18.320. But in certain actions, including unlawful detaineractions filed by landlords, arbitration is not allowed. RCW 59.18.320(1}(b}(ii). Mandatory arbitration is governed by chapter 7.06 RCW. RCW 7.06.020(1} authorizes mandatory arbitration in almost all civil actions where the sole relief sought is
a moneyjudgment in an amount not more than $15,000.00. See LOCAL RULES FOR



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MANDATORYARBITRATION 1.2 (authorizing mandatory arbitration for civil actions in Yakima County Superior Court). Mandatory arbitration serves the dual purpose of alleviating court congestion and reducing delay in hearing cases. Fernandes, 75 Wn. App. at 211. The Barrs sued for unlawful detainer. While counterclaims are generally not allowed in such actions, a claim of retaliatory eviction may be allowed. See Portof Longviewv. Int'I RawMaterials, Ltd., 96Wn. App. 431, 979 P.2d 917 (1999) (allowing a commercial tenant to assert retaliatory eviction defense in an unlawful detaineraction). ButseeAngelo, 167Wn. App. at 815 (not allowing a counterclaim ofconstructive eviction where landlord's grounds in the unlawful detaineraction involved allegations of using the propertyfor unlawful activities and committing waste). Here, Ms. Young conceded her right to possession ofthe property before a hearing on the unlawful detainer. With the Barrs' assistance, Ms. Young voluntarily vacated the rental premises. Ms. Young never attempted to re-enterthe premises. Ms. Young no longersoughtto be restored with possession ofthe property and asked solely for damages. Because the right to possession was no longer at issue, the trial court could have converted the proceeding to an ordinary civil suit in a numberofways. While the trial court did not expressly state it converted the unlawful detainerto a civil suit, being
aware ofthe Barrs' objection, it effectively converted the unlawful detainer into a civil suit by ordering mandatory arbitration. Because the case was then purely a civil action, chapter 7.06 RCWapplied. Thus, the trial court correctly ordered mandatory arbitration



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### BafTv. Young
and did not abuse its discretion. It follows that the trial court did not abuse its discretion
or errwhen it denied the Barrs' motion for reconsideration. We review a trial court's ruling on a reconsideration motion for an abuse ofdiscretion. Go2Net, Inc. v. C I Host, Inc., 115Wn. App. 73, 88, 60 P.3d 1245 (2003). Next, the Barrs obliquely assert substantialjusticewas notdone. An arbitrator "may allow an absent party an opportunityto appearat a subsequent hearing before making an award" provided the absent party shows good cause. MANDATORY ARBITRATION RULE 5.4. Given the circumstances surrounding the Barrs' health and finances, the Barrs might have showed good cause and been afforded an opportunity to be heard at a laterdate. Similarly, the Barrs could havefollowed up with their request for a trial de novo. Aware ofthe Barrs' objections and dismissal request, thetrial court ordered mandatory arbitration for Ms. Young's claim fordamages, the sole relief remaining afterthe issue ofpossession was no longer before it. Considering all, including the Barrs' inaction in failing to perfecttheir demand fora trial de novo, we concludethetrial court did not err in denying the Barrs' motion for reconsideration on the basis that substantialjusticewas not done. Affirmed. Brown, J. WE CONCUR:

# 2;~ag>e? Siddoway, C.J. Lawrence-Berrey, J. 

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