Columbus Park v. Patricia Croghan ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
COLUMBUS PARK,
DIVISION ONE
Respondent,
No. 82066-4-I
v.
UNPUBLISHED OPINION
PATRICIA CROGHAN,
Appellant.
SMITH, J. — Patricia Croghan appeals the trial court’s judgment in favor of
her landlord, Columbus Park, in its unlawful detainer action against her.
Substantial evidence supports the trial court’s findings of fact that Columbus Park
did not know of Croghan’s complaint to government agencies before serving her
with a notice to terminate her month-to-month tenancy. These findings in turn
support the trial court’s conclusion that Croghan’s allegation of retaliation under
RCW 59.18.240 does not apply here. The trial court did not abuse its discretion
in declining to admit one of Croghan’s proffered exhibits at trial because it
contained hearsay. Croghan fails to prove any of her allegations that there was
fraud or forgery during the trial court proceedings. We affirm.
FACTS
Appellant Croghan was a tenant on a month-to-month lease at Columbus
Park, a housing community, campground, and day-use park in Olympia,
No. 82066-4-I/2
Washington. On September 20, 2018, Croghan e-mailed a complaint regarding
dredging that was occurring at the waterfront at Columbus Park to employees at
the Washington State Department of Ecology and the Washington Department of
Fish and Wildlife. Croghan states that she had filed a separate complaint
regarding goose hunting at Columbus Park earlier that same month with the
same state agencies.
On October 5, 2018, Carrie Lerud, manager of Columbus Park, served
Croghan with a notice to terminate her month-to-month tenancy. The notice
informed Croghan that her month-to-month tenancy was terminated on October
31, 2018, and that if she did not vacate the premises before that date, she would
be in unlawful detainer and judicial proceedings would be initiated for her
eviction. Croghan did not vacate the premises.
On December 21, 2018, Columbus Park, through counsel, filed a
complaint for unlawful detainer against Croghan in Thurston County Superior
Court.
Croghan answered the complaint and pleaded the defense that the
unlawful detainer action was retaliatory. Specifically, Croghan alleged that
Columbus Park retaliated against her because of her complaints to government
agencies.
On March 13, 2019, Lerud filed a declaration, stating that at the time she
served the notice to terminate, “I was unaware of a complaint against Columbus
Park filed by Mrs. Patricia Croghan.” The declaration also stated that “I was
notified of the complaint via email on October 18, 2018, see Exhibit 1.” An e-mail
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No. 82066-4-I/3
forwarding Croghan’s complaint to Lerud on October 18, 2018, was attached as
an exhibit to the declaration.
On March 15, 2019, Commissioner Rebekah Zinn held a show cause
hearing. Commissioner Zinn said that the rebuttable presumption under
RCW 59.18.2501 was not overcome and, therefore, there was a presumption that
it was an unlawful eviction. Because neither party had prepared proposed
written findings of facts and conclusions of law, Commissioner Zinn said she
would draft findings of fact and conclusions of law and set a presentation
hearing.
On March 29, 2019, Commissioner Zinn held the presentation hearing.
Commissioner Zinn explained that “in the process of crafting those findings of
fact and conclusions of law and looking carefully at the law and the evidence
presented again, I am actually going to change my mind.” Commissioner Zinn
found that there were material questions of fact that warranted holding a trial and
set the matter for trial.
A bench trial took place on April 22, 2019, before Judge Carol Murphy.2
Croghan and Lerud were the only witnesses at trial. At the conclusion of trial, the
1 RCW 59.18.250 provides, “Initiation by the landlord of any action listed in
RCW 59.18.240 within ninety days after a good faith and lawful act by the tenant
as enumerated in RCW 59.18.240, or within ninety days after any inspection or
proceeding of a governmental agency resulting from such act, shall create a
rebuttable presumption affecting the burden of proof, that the action is a reprisal
or retaliatory action against the tenant.”
2 Croghan’s assignment of error 2 states that “[t]he trial court erred by
ruling on a motion in limine which was never served, nor filed, nor was appellant
given any meaningful opportunity to review and argue the motion in limine.” The
record reflects that Columbus Park provided both Croghan and the trial court with
the motion in limine, and that it was argued and decided during a discussion
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court scheduled its oral ruling for April 26, 2019, and invited both parties to
submit proposed findings of fact and conclusions of law.
Both parties submitted written proposed findings of fact and conclusions of
law. On April 26, 2019, the court gave its oral ruling, which largely adopted
Columbus Park’s proposed findings of facts and conclusions of law.3 The court
ruled that Croghan had made a report to a governmental entity prior to October
5, 2018, but it was clear that Columbus Park did not know that the complaint or
report was made by Croghan until after the notice to terminate tenancy on
October 5. The court determined that the language of RCW 59.18.240 indicates
that it is necessary that the landlord must know that the complaint or report is by
the tenant for the provision to apply. The court further concluded that
RCW 59.18.240 does not apply here because Columbus Park was not aware of
the complaint by Croghan. Thus, the court concluded that Croghan had
committed unlawful detainer and that her tenancy was terminated.
about pretrial matters on the day of trial, April 22, 2019. On appeal, Croghan
apparently objects to the trial court’s statement that it was within the scope of the
trial “to hear evidence of Ms. Croghan’s claims and reports that she made to
Columbus Park that form the basis for her retaliation claim.” But the trial court
also heard evidence of Croghan’s complaints to government agencies and
properly ruled that the issue of whether Croghan’s complaints to government
agencies had merit was outside the scope of the unlawful detainer trial.
3 Croghan’s assignment of error 10 states, “The trial court erred (Murphy)
by not preparing her own independent ruling, instead reading verbatim from
counsel for Respondent’s Findings and Conclusions.” The trial court did not err
merely by adopting a party’s proposed findings and conclusions rather than
creating its own; court rules allow for parties to prepare and present proposed
findings, conclusions, and judgments, and for the trial court to adopt them. See
CR 52, 54.
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No. 82066-4-I/5
On June 14, 2019, the court held a presentation hearing at which Croghan
did not appear. The court signed Columbus Park’s proposed written “Findings of
Fact, Conclusions of Law and Judgment, and Order for Writ of Restitution.” On
June 14 and June 17, Croghan filed declarations, alleging that she lacked notice
of the hearing because of a failure in Columbus Park’s service. The trial court
vacated the orders and rescheduled the hearing.
On June 28, 2019, the court entered “Findings of Fact, Conclusions of
Law and Judgment, and Order for Writ of Restitution,” identical to those which it
had entered on June 14.
Croghan appeals.
ANALYSIS
It was undisputed at this trial for unlawful detainer that Croghan had a
month-to-month tenancy, that she had been served with a notice to terminate
tenancy, and that she had not vacated the premises, where she still remained at
the time of trial. Thus, the central dispute at trial was Croghan’s defense that
Columbus Park was retaliating against her for complaints she made to
governmental authorities.
Specifically, Croghan alleged that Columbus Park violated
RCW 59.18.240, which states that a landlord shall not take reprisals or retaliatory
action against a tenant “because of any good faith and lawful . . . [c]omplaints or
reports by the tenant to a governmental authority concerning the failure of the
landlord to substantially comply with any code, statute, ordinance, or regulation
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No. 82066-4-I/6
governing the maintenance or operation of the premises, if such condition may
endanger or impair the health or safety of the tenant.”
Columbus Park’s response was that it did not retaliate because it had no
knowledge of Croghan’s complaint before serving the notice to terminate
tenancy. For the reasons detailed below, we affirm the trial court’s judgment in
favor of Columbus Park.
Columbus Park’s Knowledge of Croghan’s Complaint
Croghan argues that the trial court erred by ruling that Columbus Park did
not have knowledge of her complaint to a government agency. We disagree.
When a party does not challenge a trial court’s finding, we treat the finding
as a verity on appeal. In re Estate of Lint, 135 Wn.2d 518, 532-33, 957 P.2d 755(1998). When a party challenges a finding, we determine whether substantial
evidence supports it. In re Marriage of Griswold, 112 Wn. App. 333, 339, 48
P.3d 1018 (2002). “‘Substantial evidence exists if the record contains evidence
of sufficient quantity to persuade a fair-minded, rational person of the truth of the
declared premise.’” Id. (quoting Bering v. SHARE, 106 Wn.2d 212, 220, 721
P.2d 918 (1986)). We then determine whether the findings of fact (either
unchallenged or supported by substantial evidence) support the trial court’s
conclusions of law. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980
P.2d 1234 (1999). We do not review credibility determinations, which we leave
to the trier of fact. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d
144 (1999).
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No. 82066-4-I/7
The trial court issued three findings regarding Columbus Park’s knowledge
of Croghan’s complaint to government agencies:
4. Plaintiff had no knowledge of Defendant’s complaint to
government agencies until after October 5, 2018 when Plaintiff
provided the Twenty-Day Notice to Terminate Tenancy.
5. On October 18, 2018, Plaintiff was notified by Bracy & Thomas,
the entity that was referred to as the permitting agency, that the
Defendant had filed a complaint about the dredging of the salmon
stream.
6. Defendant herself in a letter to Plaintiff was the first to notify
Plaintiff that the Defendant had filed a complaint.
Croghan does not properly assign error to these findings in accordance
with the Rules of Appellate Procedure. See RAP 10.3(g) (“A separate
assignment of error for each finding of fact a party contends was improperly
made must be included with reference to the finding by number. The appellate
court will only review a claimed error which is included in an assignment of error
or clearly disclosed in the associated issue pertaining thereto.”). The findings
support the trial court’s conclusion that Croghan’s assertion of improper
termination under RCW 59.18.240 does not apply because Columbus Park was
not aware of Croghan’s complaint. We may affirm on this basis. See Lint, 135
Wn.2d at 532-33.
Even if Croghan had properly assigned error to these findings, the findings
are supported by substantial evidence. Lerud filed a declaration, stating that
when she served the notice to terminate tenancy on October 5, 2018, she was
unaware of a complaint against Columbus Park filed by Croghan. Her
declaration states that she was notified of the complaint via e-mail on October
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No. 82066-4-I/8
18, 2018. Attached to her declaration is an e-mail sent to Lerud on October 18,
2018, from Kim Pawlawski at Bracy & Thomas, forwarding Croghan’s September
20 e-mail complaint.
Lerud testified at trial that she was not aware of any complaints or reports
that Croghan had made in the 90 days before she served the notice to terminate
tenancy. She testified that, after serving the notice to terminate tenancy, she
received a letter from Croghan that was “somewhat inflammatory” and called her
permit company, Bracy & Thomas, to ask what was going on. She said the
permitting company then forwarded the e-mail to her. When asked if she took
this action to retaliate against Croghan for the complaint she made, Lerud
responded, “I didn’t have any knowledge of the complaint, so no.”
Croghan testified at trial that she did not personally notify Lerud about her
complaint before she was served with the notice to terminate tenancy. Nor did
she personally witness anyone else notify Lerud about her complaint before the
notice to terminate tenancy was served. Croghan also submitted into evidence a
letter she sent to Lerud days after she was served the notice to terminate
tenancy, notifying Lerud that she had filed a complaint.
The evidence before the court was more than sufficient to persuade a fair-
minded, rational person that the findings are true. See Griswold, 112 Wn. App.
at 339. Substantial evidence supports the trial court’s three findings regarding
Columbus Park’s knowledge of Croghan’s complaint to government agencies,
quoted above. See id.
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No. 82066-4-I/9
Croghan argues that evidence supports the fact that Lerud was notified “of
the complaint and/or the identity of Croghan” before serving the notice to
terminate tenancy. Specifically, Croghan states that she saw the dredging
contractor entering Lerud’s office immediately after Croghan’s confrontation with
him on September 20; that Brandon Clinton, an employee of the United States
Army Corps of Engineers, contacted Pawlawski on September 24 and that same
day advised Croghan that he left a message at the Columbus Park office; and
that Teresa Nation, an employee of the Washington Department of Fish and
Wildlife, called Croghan on September 24 and received a copy of Croghan’s
report from the Department of Ecology via e-mail.
Even assuming the above allegations are true and not barred by the
hearsay rule, the circumstantial evidence Croghan offers is purely speculative. It
relies not on Croghan’s personal knowledge of any communications, but on
Croghan’s assumptions about what she believes might have been communicated
between other people. Lerud’s declaration and testimony directly contradicted
Croghan’s argument that she knew about Croghan’s complaint before serving the
notice to terminate tenancy. The record reflects that the trial court found Lerud’s
evidence credible. We will not substitute our judgment for the trial court’s and
weigh evidence or determine witness credibility. See Greene, 97 Wn. App. at
714.
Croghan argues that Columbus Park did not overcome the rebuttable
presumption of retaliation in RCW 59.18.250. First, she states that the trial court
did not reference subsection .250 at trial or in its rulings. Croghan addressed this
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No. 82066-4-I/10
subsection in her briefing to the trial court and in closing argument. In closing
argument, the attorney for Columbus Park specifically cited this subsection and
argued that the presumption was rebuttable and there was no retaliation because
the Columbus Park had no knowledge of Croghan’s complaint when it served the
notice to terminate tenancy. Thus, although the trial court did not specifically cite
subsection .250 in its rulings, the record reflects that the issue was argued before
the court and that the trial court was persuaded by the argument made by
Columbus Park. Croghan points to no legal authority requiring the court to enter
findings of fact or conclusions of law specifically regarding subsection .250.
Second, Croghan points to Commissioner Zinn’s oral statement during a show
cause hearing that the rebuttable presumption applied. But, as the commissioner
herself stated, she later changed her mind and set the matter for trial.4
Furthermore, the trial court was not bound by the commissioner’s earlier oral
statements during a show cause hearing.
In sum, substantial evidence supports the trial court’s three findings
regarding Columbus Park’s knowledge of Croghan’s complaint to government
agencies. These findings support the trial court’s conclusion that retaliation
4 Croghan assigns error to what she describes as the commissioner’s
failure to follow through on giving Croghan the remedy she stated she was going
to give her—the dismissal of the unlawful detainer action—and to enforce court
rules regarding a 10-day deadline to file a motion for judicial review. But
Croghan did not challenge the commissioner’s written order on March 29, 2019,
setting the matter for trial. We decline to consider such a challenge at this late
date.
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No. 82066-4-I/11
under RCW 59.18.240 did not apply because Columbus Park was not aware of
Croghan’s complaint.5
Admission of Croghan’s Exhibits at Trial
Croghan argues that the trial court violated her right to due process and
denied her a fair trial by excluding her exhibits until the end of trial. We disagree.
We review a trial court’s decision on whether to admit evidence for an
abuse of discretion. State v. Bradford, 175 Wn. App. 912, 927, 308 P.3d 736(2013). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. Id.The trial court answered Croghan’s questions regarding admission of
exhibits at the start of trial, before the parties gave their opening statements.
Croghan asserts that it was a violation of her due process rights that, during this
exchange, the court asked her to utilize her time during a break in the
proceedings to have the clerk mark her exhibits. The record reveals no evidence
that this denied Croghan the ability to have her exhibits admitted throughout trial.
Croghan was able to proffer exhibits and have them admitted during her cross-
examination of Lerud and during her own case-in-chief, as well as reopen her
case after Columbus Park’s closing argument to have two additional exhibits
admitted.
5In light of this holding, we need not address Croghan’s argument
regarding the definition of “premises.” Even assuming that the goose hunt and
the dredging occurred on Croghan’s “premises” for the purposes of
RCW 59.18.240, the trial court’s conclusion that there was no retaliation because
Columbus Park lacked knowledge of Croghan’s complaint would be dispositive.
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No. 82066-4-I/12
The trial court in fact admitted all of Croghan’s proffered exhibits except
one, a report entitled “Department of Ecology - Environmental Report Tracking
System,” numbered exhibit 17. The report contains e-mails from people not
present at trial, and Croghan stated that she wanted to admit it to prove when
Lerud received notice of her complaint. The court declined to admit the exhibit
because, to the extent it was even relevant, it was hearsay. The report was
hearsay because it contained statements made out of court and Croghan was
apparently offering it to prove the truth of the matter asserted. See ER 801(c)
(defining hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted”). The trial court did not abuse its discretion in declining to admit
the exhibit. In addition, the record reflects that the exact same “Department of
Ecology- Environmental Report Tracking System” report had already been
admitted by the agreement of the parties as exhibit 24, and was thus already
before the court.
Fraud and Forgery Alleged by Croghan
Croghan alleges that several instances of fraud and forgery occurred
during the trial court proceedings. We are not persuaded.
First, Croghan alleges that she has, or is going to obtain, evidence that
would demonstrate that Lerud’s testimony about her November and December
2018 rent payments was false. However, Croghan has not submitted the
evidence she discusses to the trial court or this court.
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No. 82066-4-I/13
Second, Croghan alleges that her signature on the “Stipulation and Order
for Return of Exhibits,” filed after the court’s oral ruling on April 26, 2019, was
forged. Specifically, Croghan alleges that Columbus Park’s attorney copied and
pasted her signature from a previously filed pleading onto the stipulation to
destroy Columbus Park’s exhibits so they would not be preserved for appeal.
The record contains no evidence that the signature was forged other than
Croghan’s declaration to the trial court stating the same. And Croghan’s
appellant’s brief states the court clerk later informed her that no exhibits would be
destroyed so that they would be preserved for appeal.
Third, Croghan alleges that Kim Pawlawski’s signature on exhibit 20 was
forged. But exhibit 20 was not admitted into evidence and therefore that issue is
not before the court.
Last, Croghan alleges that the exhibit attached to Lerud’s declaration,
exhibit 23, the e-mail forwarding Croghan’s complaint to Lerud, was altered with
correction fluid because letters were faint. The e-mail addresses of senders and
recipients (but not the peoples’ names) appear in a lighter font color, as does the
second e-mail in the forwarded chain. When Croghan questioned Lerud about
this at trial, Lerud responded that it is just the way forwarded messages appear
when they are forwarded, and that is just how e-mails are printed. Lerud testified
that they are not “whited out.” Croghan herself requested that this exhibit be
admitted into evidence after hearing these explanations from Lerud. The exhibit
was admitted; Croghan did not argue in closing that it has been altered.
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No. 82066-4-I/14
In short, Croghan has failed to prove any of her allegations of fraud or
forgery.
Attorney Fees and Sanctions
Columbus Park requests that we order Croghan to pay its attorney fees
and costs and impose sanctions against her because her appeal is frivolous,
pursuant to RCW 4.84.185 and RAP 18.9(a). An appeal is frivolous when the
appeal presents no debatable issues on which reasonable minds could differ and
is so lacking in merit that there is no possibility of reversal. Mahoney v.
Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987). Croghan’s appeal was not
frivolous because it presents debatable issues on which reasonable minds could
differ. We decline Columbus Park’s request to order Croghan to pay its attorney
fees and costs and impose sanctions against her.
Croghan also requests that we award her sanctions and damages against
Columbus Park because its unlawful detainer action against her was frivolous.
Given that we are affirming the trial court’s judgment in favor of Columbus Park,
Columbus Park’s lawsuit was not frivolous. We deny Croghan’s request to
impose sanctions and damages against Columbus Park. We also deny
Croghan’s request for relief under RCW 59.18.380 and her request that we grant
a motion to limit dissemination.
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We affirm.
WE CONCUR:
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