IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON PORT OF KINGSTON, a Washington Port District, Respondent,

v. ROB BREWSTER and BETH BREWSTER, husband and wife, and the marital community they compose, d/b/a KINGSTON ADVENTURES, LLC, a Washington limited liabilitycompany, Appellants. No. 73668-0-1 DIVISION ONE

UNPUBLISHED OPINION FILED: December 7, 2015 c.n ('IC

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### Becker, J. —Appellants were found in unlawful detainer ofeight 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 ofthat issue and affirm in all other respects. 

### InApril 2010, Rob and Beth Brewsterrented a single berth at the Port of 

### Kingston's small watercraftfacility to store a family kayak. Later that year, Beth Brewster decided to start a small watercraft rental business, Kingston Adventures 

### LLC. Forbusiness 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. 

### In2013, 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 Portserved 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, KingstonAdventures initiated a federal civil rights lawsuit 

### against the Port. The lawsuitalleged that the Port's decision to terminate the tenancywas the product ofgenderdiscrimination and a desire to retaliate against Beth Brewster for exercising her FirstAmendment rightto criticizethe Port. The berths were notsurrendered byJune 30. On July 2, the Portfiled an unlawfuldetaineraction in Kitsap County SuperiorCourt. On July 17, theNo. 73668-0-1/3 

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

### The defendants were ordered to appearon July 18 for a show cause hearing. 

### On July 11, the defendants filed a motion to abate, asking the court to stay the unlawful detainerproceedings 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 calendaron Friday, August 1, at 1:30 p.m. 

### On July 23, Judge Dalton issued an orderdenying the defendants' motions to abate and dismiss. The order stated that the unlawful detainer action would be setfor a jury trial. On July 25, Judge Dalton issued an amended ordermoving the show
cause hearing to the civilmotions calendar at 9:00 a.m. on August 1. This order stated thatthe show cause hearing previously setfor 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 motionsjudge. The defendants were not present. Intheir absence, Judge Forbes resolved the unlawful detainer action by 

### entering findings and conclusions and ajudgmentin favor ofthe Port for$451.36No. 73668-0-1/4 

### forthe rent and leasehold tax due and owing forJune and July 2014. The clerk
was directed to issue a writ ofrestitution restoring the eight berths to the Port. Judge Forbes reserved ruling on the attorney fees and costs claimed bythe Port. On August4, the defendants moved to vacate the writ of restitution and thejudgment. Counsel for the defendants represented that itwas 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 ifthis 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 thatthey were entitled to have a jury trial on their defenses ofdiscrimination and retaliatory eviction and thatthere were otherfact issues. On August 12, Judge Dalton denied reconsideration ofthe motion to abate. 

### On September 2, Judge Forbes issued a memorandum opinion denying the motion to vacate the unlawful detainerjudgment. 

### On November 14, Judge Forbes entered ajudgment awarding the Port $13,081.21 for costs and attorneyfees againstthe Brewsters individually, their marital community, and Kingston Adventures. This appeal followed. MOTION TO VACATE 

### The defendants assign errorto Judge Forbes' denial oftheir motion to 

### vacate the ordergranting restitution and damages. Denial of a motion to vacateNo. 73668-0-1/5
is reviewed for abuse ofdiscretion. Jones v. City ofSeattle, 179 Wn.2d 322, 360, 314 P.3d 380 (2013). A party is entitled to vacation from a finaljudgment ifthejudgment is undermined by "mistakes, inadvertence, surprise, excusable neglect or 

### irregularity inobtaining ajudgmentor order." CR 60(b)(1); Mosbruckerv. 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 fromthat hearing was excusable neglect. Nevertheless, she determined thatthe defendants had not setforth a prima facie defense. Concluding that a trial would be a useless formality, she held itwas unnecessary to vacate thejudgment. 

### On appeal, the defendants maintain they presented a numberofdefenses that deserved to be tried. Real property 

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

### parking spaces and a dock gate. Itwas proper for the Port to bring an unlawfulNo. 73668-0-1/6 

### detainer action to preventthe defendants from continuing to occupy and use these portions ofthe Port's real property. Timeliness of action The defendants contend thatthe 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 ifthey cure a breach unrelated to the paymentof rentwithin 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 theirtenancy was being terminated, as allowed by the lease. Such a notice to terminate is not "curable"—"the tenant has no choice butto vacate within the notice period." 17 William B. Stoebuck &JohnW. Weaver, Washington Practice: Real Estate: Property Law § 6.80, at 440 (2d ed. 2004). Equitable defenses 

### Indefending against an unlawful detainer action, a tenant may raise equitable defenses "arising out ofthe tenancy." RCW 59.18.380. To protectthe 

### summary nature ofan unlawful detainer proceeding, our courts hold that equitable defenses arise out ofthe tenancy only when they affectthe tenant's right to possession or are based on facts thatexcuse a tenant's breach. Josephinium Assocs. v. Kahli, 111 Wn. App. 617, 625, 45 P.3d 627 (2002). "Ifunlawful discrimination is the reason for an eviction, the defense 

### certainly affects the tenant's right ofpossession." Josephinium Assocs., 111 Wn. 

### App. at 625. Retaliatory eviction is also an affirmativeequitable defense thatNo. 73668-0-1/7


### may be asserted. Port ofLonqview 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 heartheir defenses ofgender discrimination and retaliatory eviction. But a landlord's unlawful discrimination or retaliatory eviction can be asserted as a defense only ifthe tenant is not "otherwise in breach ofthe lease agreement." Port of Lonqview, 96 Wn. App. at438. Here, the defendants were in breach ofthe berth leases. They did not have the Port's written permission for putting the berths to commercial
use. The business use agreementthey originally had with the Portexpired in 2012 and was not renewed. In those circumstances, the defendants did not have 

### a right to stay in possession even ifthey could showthe Portwas discriminating
or retaliating against Beth Brewster. Because the defendants were "otherwise in breach ofthe lease 

### agreement," the trial court did not err in refusing to give them a jury trial on their defenses ofgenderdiscrimination and retaliatory eviction. MOTION TO ABATE 

### The defendants assign errorto Judge Dalton's denial oftheir motion to 

### abate. They contend that underthe 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 requestforrelief. Bunch v. Nationwide Mut. Ins. Co., 180Wn. App. 37, 41-42, 321 P.3d 266No. 73668-0-1/8 

### (2014). The Port's unlawful detainer action was narrowly limited to the issue of possession. Both in subject matter and inthe nature of reliefavailable, itwas fundamentally differentfrom the federal lawsuit inwhich Kingston soughtto 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 ofattorney fees is proper only ifauthorized by contract, statute, 

### or a recognized ground ofequity. Harmonv at Madrona Park Owners Ass'n v. Madison Harmonv Dev., Inc., 160Wn. App. 728, 739, 253 P.3d 101 (2011). The 

### Port relies on a provision inthe berth leases: "Inany action or proceeding for the collection ofanysums which maybe 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 forthe collection of rent orothersums payable under the lease. 

### The Port's complaintdemanded a writ of restitution, damages, an award of 

### "rent and charges coming due during the period of unlawfuldetention," and 

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

8No. 73668-0-1/9 

### collection ofsums payable underthe lease. And in fact, thejudgmentawarded 

### the Port $451.36 forthe rent and leasehold tax due forJune and July 2014. In addition, Judge Forbes held the case open to determine whetherthe Portwould be entitled to further damages for unpaid rent or damage to the premises. The defendants point outthatthe Port refused theirtender of rentfor the 

### months following the service ofthe notice to terminate tenancy. This does not undermine the Port's claim for rent and charges due. Ifthe 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 rentfor the period oftime the defendants unlawfully occupied the premises. Amount awarded By orderentered on November 14, 2014, Judge Forbes awarded the Port 

### $12,300 in attorney fees and $781.21 incosts. The defendants contend the award must be set aside because the court did not make findings offact sufficientto support appellate review. A trial court is required to enterfindings offact and conclusions of law in 

### support of a contested award ofattorneyfees. Mahlerv. 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 ofcounsel. Atthe court's request, the 

### parties submitted briefing. The Portfully responded to defendants' objections to the hourly rate, numberofhours claimed, hours awarded for nonattorneytime, and hours awarded for duplicate line items. The Port conceded some errors inNo. 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 courtfound the Port's 

### explanations satisfactory. On appeal, the defendants have not pointed out any specific errors inthe Port's explanations. Remand forentry of findings of fact and conclusions of law would be pointless inthese 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 Portwas entitled to an award ofattorney 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 ofwho 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 intheir 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 forthe company, not individually. Thus, the defendants submitted evidence thatthe 

### tenant occupying the propertywas Kingston Adventures, not the Brewsters. It is not clearthat the Brewsters are responsible—individually or as a marital 

### community—forthe rent, damages, and attorney fees due to the Port. An unlawful detainerdefendant is entitled to ajurytrial "wheneveran issue 

### of fact is presented bythe pleadings." RCW59.12.130. The issue ofproper

10No. 73668-0-1/11 

### identification ofthe contracting parties was presented by the pleadings, but itwas not resolved by the findings offact the courtentered on August 1, 2014. This is not surprising. As the defendants recognize intheir reply brief, the Port understandably named every possible defendant inorderto conclusively resolve the issue ofpossession against every entity who potentially would claim to be a tenant. Forthe purpose of restoring possession to the Port, itwas not important for the courtto make precise findings aboutwho was liable on the leases. Proper identification ofthe contracting parties does, however, have significance with respectto 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 thatthe Port had agreements with "one or more ofthe Defendants." But the ruling continued by referring to all ofthe 

### defendants collectively as being inbreach ofthe leases. The court's failure to resolve the individual liabilityissues was a second "irregularity" justifying vacation ofthejudgment. See Mosbrucker, 54 Wn. App. at 652. 

### We conclude the courterred indenying the defendants a trial on the issue 

### ofthe identity ofthe tenant ortenants liable forthe monetary awards. In allother respects, the denial ofthe motion to vacate is affirmed. The award ofattorney fees and costs is also affirmed, save for any change that might become necessary ifnot all the defendants are held liable. 

### The Port requests an award ofattorney fees on appeal. The request is granted. "A contract providing for an award ofattorney fees at trialalso supports such an award on appeal." Hall v. Feigenbaum, 178 Wn. App. 811, 827, 319

11No. 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 Portfor this appeal. Reversed in part, affirmed in part, and remanded for further proceedings consistentwith this opinion.

WE CONCUR:



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