4105 1st Avenue South Investements v. Green Depot Wa Pacific Coast

20!*f NOV 2U AH 9- 0 i
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
4105 1st AVENUE SOUTH NO. 70051-1-1
INVESTMENTS, LLC,
DIVISION ONE
Respondent,
v.
GREEN DEPOT WA PACIFIC COAST,
LLC, a Washington limited liability
company; and
Appellant, UNPUBLISHED OPINION
ECOHAUS, INC., a Washington FILED: November 24, 2014
corporation and successor in interest
to BUILT-E, INC., d/b/a
ENVIRONMENTAL HOME CENTERS,
Defendant.
l_AU j _ |n its second appeal in this unlawful detainer action, Green Depot
once again contends that the trial court erred in denying its request for attorney fees
as the prevailing party. We rejected Green Depot's identical arguments in the prior
appeal. See 4105 1stAve. South Investments. LLC v. Green Depot WA Pacific
Coast LLC, 179Wn. App. 777, 321 P.3d 254 (2014) (Green Depot I). Green Depot
70051-1-1/2
has not presented any coherent legal argument for revisiting our prior decision or
identified any error in the trial court's decision. Under the law of the case doctrine,
our decision in Green Depot I is controlling. We therefore affirm and award attorney
fees for a frivolous appeal.1
FACTS
The material facts are undisputed and set forth in detail in Green Depot I. On
January 9, 2012, 4105 1st Ave. South Investments, LLC (4105) filed a commercial
unlawful detainer action against Green Depot, seeking a writ of restitution and
judgment for past due rent. On January 27, 2012, 4105 filed a separate cause of
action against Green Depot, alleging a breach of the parties' lease agreement and
requesting a judgment for damages and unpaid rent.
The trial court set an expedited trial date in the unlawful detainer action for
March 26, 2012, four days after the end of the lease. Before the scheduled trial date,
Green Depot stipulated that unless it vacated the premises by the end of the lease,
4105 would be entitled to a writ of restitution. Green Depot also agreed that 4105
could pursue its separate breach of contract action. Because the right to possession
was no longer in dispute, the parties agreed that the expedited trial date should be
1After filing its notice of appeal, Green Depot filed a motion on the merits to
reverse. See RAP 18.14. In the alternative, Green Depot asked the court to treat the
motion as its opening brief. 4105 filed an answer, asking the court to dismiss Green
Depot's appeal for failure to comply with the procedural requirements for a motion on
the merits to reverse. See RAP 18.14(b) (motion on the merits to reverse may be
filed "any time after the respondent's brief has been filed"). 4105 also filed a motion
on the merits to affirm. Because this court does not use the motion on the merits
procedure, see general order on the motions on the merits adopted August 18, 2014,
we will treat the parties' pleadings as appellate briefs.
70051-1-1/3
stricken. Green Depot I, 179 Wn. App. at 782. Green Depot vacated the premises
on March 22, when the lease expired.
On March 26, 2012, Green Depot filed a motion for an award of attorney fees
and costs in the unlawful detainer action, arguing that it was the "prevailing party"
under the terms of the lease. The trial court denied the motion on April 5, 2012, and
Green Depot appealed. On January 13, 2014, this court affirmed in Green Depot I,
concluding that Green Depot was not the prevailing party in the unlawful detainer
action because the parties' dispute over past due rent and damages remained to be
determined in the pending breach of contract action. Green Depot I, 179 Wn. App. at
786.
On January 11, 2013, while Green Depot's first appeal was pending, the trial
court entered an agreed order dismissing 4105's claims in the unlawful detainer
action without prejudice to Green Depot's claim for attorney fees and costs in the
pending breach of contract action. On January 23, 2013, Green Depot filed a
renewed motion for attorney fees in the unlawful detainer action.
The trial court denied the motion on February 4, concluding that it lacked
authority to revisit the attorney fee request because the identical issue of Green
Depot's entitlement to attorney fees in the unlawful detainer action was currently
pending in Green Depot I. See RAP 7.2(e). Green Depot once again appeals.
ANALYSIS
Green Depot contends that the entry of the January 11 agreed order of
dismissal constituted "a substantive change in circumstances with respect to fees"
and therefore authorized the trial court to once again address its claim for attorney
70051-1-1/4
fees as the prevailing party in the unlawful detainer action. Appellant's Motion on the
Merits, at 12. Green Depot argues that because the first attorney fee ruling occurred
predismissal, the court's analysis in Green Depot I is not controlling. Green Depot
provides no relevant legal argument or citation to authority to support these claims.
Under the law of the case doctrine, an appellate court will generally refuse to
consider issues that were decided in a prior appeal. See Folsom v. County of
Spokane, 111 Wn.2d 256, 263-64, 759 P.2d 1196 (1988); RAP 2.5(c)(2). Res
judicata bars the relitigation of claims that were litigated or could have been litigated
in a prior action. Loveridqe v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898(1995). Both doctrines serve the goal of avoiding the indefinite relitigation of the
same issue and ensuring the finality of judgments. See Spokane Research & Def.
Fund v. City of Spokane. 155 Wn.2d 89, 99, 117 P.3d 1117 (2005).
In an apparent effort to avoid these principles, Green Depot asserts that the
Green Depot I court "did not have the opportunity in the first appeal to consider the
significance of the Order of Dismissal." Appellant's Motion on the Merits at 12.
But the court's unambiguous analysis belies this claim.
In affirming the denial of Green Depot's predismissal attorney fee request, this
court expressly noted the entry of the January 11 agreed order of dismissal and
quoted the relevant provisions. Green Depot I, 179 Wn. App.783. The court then
concluded that Green Depot was not the prevailing party in the unlawful detainer
action because the parties' dispute over past due rent, damages, and attorney fees
remained pending in the separate breach of contract action. Green Depot I, 179 Wn.
-4-
70051-1-1/5
App. 786. Finally, in distinguishing the same decisions that Green Depot relies on
here, the court expressly incorporated the dismissal into its analysis:
Here, unlike in Walii fv. Candvco. Inc.. 57 Wn. App. 284, 787 P.2d 946(1990)], Council House, fine, v. Hawk, 136 Wn. App. 153, 147 P.3d 1305(2006)], or Hawk Tv. Branies, 97 Wn. App. 776, 986 P.2d 841 (1999)],
dismissal of the unlawful detainer action did not leave the parties in the
position "as if the action had never been brought." Wachovia SBA Lending,
Inc. v. Kraft, 165 Wn.2d 481, 492, 200 P.3d 683 (2009). 4105 filed a separate
breach of contract action against Green Depot to recover the past due rent
and damages that was still pending.
Green Depot I, 179 Wn. App. at 787 (emphasis added).
The absence of a formal order of dismissal is clearly unnecessary to the
court's analysis. Rather, the court's decision rests on the fact that the parties'
disputes were not resolved in the unlawful detainer action but remained pending in
the separate breach of contract action.
Precisely the same circumstances existed when the trial court denied Green
Depot's renewed motion for attorney fees on February 4, 2013. The parties' disputes
remained pending in the separate breach of contract action. Consequently, the
parties were in exactly the same position as they were when the trial court denied
Green Depot's first motion for attorney fees. Under the circumstances, as the trial
court correctly noted, the order of dismissal was merely a "housekeeping matter":
Because this Court's order of dismissal did not alter the relationship of
the parties, provide subsequent relief, or modify a prior judgment of the Court,
and because the question whether Defendant is entitled to an award of
attorney fees and costs was then and is now pending in the Court of Appeal[s],
this Court is divested of jurisdiction to revisit the issue of Defendant's request
70051-1-1/6
for attorney fees and costs, unless and until remanded by the Court of
Appeal[s]. See RAP 7.2(a), (e), (i).'2'
Under the law of the case, Green Depot I is controlling. The trial court did not
err in denying Green Depot's renewed motion for attorney fees.
4105 requests an award of attorney fees for a frivolous appeal. See RAP
18.9(a). An appeal is frivolous "ifthe appellate court is convinced that the appeal
presents no debatable issues upon which reasonable minds could differ and is so
lacking in merit that there is no possibility of reversal." In re Marriage of Foley, 84
Wn. App. 839, 847, 930 P.2d 929 (1997). That standard is satisfied here.
Although couched in terms of an alleged "substantive change in
circumstances," Green Depot's appeal is nothing more than an attempt to raise the
same arguments that this court unambiguously rejected in Green Depot I. Green
Depot does not offer any meaningful legal argument supporting its claim of changed
circumstances. Nor has it attempted to address the basis for this court's analysis in
the prior appeal. 4105 is awarded its attorney fees on appeal subject to compliance
with RAP 18.1(d).
Affirmed.
WE CONCUR:
2 The parties later settled the breach of contract action before trial.
-6-