author: WIGGINS, J. STEPHENS, J. (concurring)

text:
    RANDY REYNOLDS & ASSOCIATES, INC. dba Reynolds Real Estate, Respondent, v. Kasey HARMON aka Kasey Harman, Any Subtenants, and All Others Acting By Or Through Them, Petitioner.
    No. 95575-1
    Supreme Court of Washington.
    October 25, 2018 Filed MARCH 28, 2019
    Scott Crain, Northwest Justice Project, Edmund Robert Witter, Attorney at Law, Seattle, WA, Stephen John Parsons, Jennifer Ammonsm Northwest Justice Project, Tacoma, WA, Leslie Woodruff Owen, Attorney at Law, Olympia, WA, for Petitioners.
    Michael G. Gusa, Gusa Law Office, Olympia, WA, for Respondent.
    Mark Morzol, Tacoma-Pierce County HJP, Kent Roland Van Alstyne, Phillips Burgess PLLC, Tacoma, WA, Amicus Curiae on behalf of Tacoma-Pierce County Housing Justice Project.
    Bonnie Lee Aslagson, Attorney at Law, Bruce Hayden Conklin, Attorney at Law, Olympia, WA, Kimberlee A. Thornton, Attorney at Law, Lacey, WA, Amicus Curiae on behalf of Thurston County Volunteer Legal Services (TCVLS), Kitsap Legal Services (KLS), Snohomish County Legal Services (SCLS), and Clark County Volunteer Lawyers Program.
   WIGGINS, J.

¶ 1 Kasey Harmon, a 53-year-old woman in failing health, was evicted from her home following a default judgment and writ of restitution. During the eviction, Harmon obtained an ex parte order staying enforcement of the judgment. The Court of Appeals reversed, concluding that the Residential Landlord-Tenant Act of 1973 (RLTA) prohibited such an order. We hold that the RLTA does not apply to tenants, like Harmon, who contest entry of a default judgment in unlawful detainer actions; these actions are governed by the Civil Rules. Accordingly, we reverse the Court of Appeals decision, including the award of appellate attorney fees and costs to Reynolds.

FACTS AND PROCEDURAL HISTORY

¶ 2 In February 2016, Harmon began renting an apartment managed by Randy Reynolds & Associates (Reynolds). On July 11, 2016, Reynolds served Harmon with a notice terminating her tenancy and directing her to vacate the apartment by the end of the month. Harmon did not leave her home.

¶ 3 On August 15, 2016, Reynolds filed an eviction summons and unlawful detainer complaint. The summons indicated Harmon must respond in writing to the landlord's attorney by September 15, 2016, if she wished to defend herself against the lawsuit. Although Harmon responded to the complaint and sent it to Reynolds' attorney by certified mail on September 14, the day before the specified deadline, the response was not timely received.

¶ 4 On September 15, 2016, Reynolds moved for an order of default judgment, including a writ of restitution against Harmon for failure to appear or defend against the complaint. The next day, the superior court commissioner entered the default judgment and granted the writ.

¶ 5 On September 19, the Thurston County sheriff posted the writ at Harmon's home, requiring her to vacate within 72 hours or be subject to physical eviction. That same day, Harmon moved ex parte to stay execution of the writ of restitution. The commissioner granted the stay, finding good cause existed because Harmon alleged that she answered Reynolds' complaint before the case was filed and default judgment was entered. A show cause hearing was scheduled for September 23, 2016. The stay order waived any requirement for Harmon to post a bond until a hearing on the merits of the motion could be held. Harmon did not post a bond.

¶ 6 At the show cause hearing, the commissioner found that Harmon failed to prove Reynolds received her response before the deadline and thus had no basis to lift the default judgment. The commissioner lifted the stay and entered a judgment with attorney fees and costs in favor of Reynolds.

¶ 7 On September 29, 2016, the writ was executed. Harmon was evicted.

¶ 8 During the eviction process, Harmon was in crisis. Her health had declined since moving into her apartment. She suffered left foot neuropathy caused by spinal damage and a groin hernia for which she would undergo surgery and was diagnosed with heart failure. Harmon lived alone, had no income, received rental assistance, and had a pending Social Security application.

¶ 9 Although Reynolds prevailed at the trial court and evicted Harmon, the landlord nevertheless sought appellate review. The Court of Appeals commissioner allowed Reynolds to "supplement the record with declarations" from two attorneys involved in the case. Br. of Appellant at 4 n.3 (Wash. Ct. App., No. 49588-1-II). The Court of Appeals recognized that the issues raised were moot and that it could not offer relief but reached the merits of the case under the public interest exception. Reynolds v. Harmon , 1 Wash. App. 2d 239, 244-46, 404 P.3d 602 (2017). The court held, in a published decision, that the superior court commissioner violated CR 5(a) and RCW 59.18.390(1) by granting the ex parte stay without providing notice to Reynolds and waiving the bond requirement. Id. at 246-49, 250-52, 404 P.3d 602. The court also held the order improper under the Code of Judicial Conduct. Id. at 250, 404 P.3d 602.

¶ 10 Throughout the eviction, Harmon was largely unrepresented. She again found herself without counsel at the Court of Appeals. She did not file a brief and her motion for reconsideration was denied.

¶ 11 Harmon petitioned this court for review. She argued that the issues Reynolds raised below were moot, the Court of Appeals incorrectly considered evidence from outside the trial record, and the superior court's inherent equitable authority gave it the power to issue the order staying execution of the writ of restitution. Reynolds opposed review and, in the alternative, asked the court to consider whether the waiver of a bond pending a show cause hearing violated RCW 59.18.390(1). We granted review of all issues and asked for supplemental briefing on whether Reynolds qualified as an aggrieved party pursuant to RAP 3.1. Reynolds v. Harmon , 190 Wash.2d 1019, 418 P.3d 802 (2018).

ANALYSIS

1. Although Reynolds lacked standing to appeal, Harmon is an "aggrieved party" before this court under RAP 3.1

¶ 12 The Rules of Appellate Procedure state that "[o]nly an aggrieved party may seek review by the appellate court." RAP 3.1. Reynolds was not "aggrieved" and the Court of Appeals erred by entertaining review. Here, Harmon is aggrieved based on the judgments against her. She properly sought appellate review. Id.

¶ 13 While RAP 3.1 does not itself define the term "aggrieved," Washington courts have long held that "[f]or a party to be aggrieved, the decision must adversely affect that party's property or pecuniary rights, or a personal right, or impose on a party a burden or obligation." In re Parentage of X.T.L. , No. 31335-2-III, slip op. at 17, 2014 WL 4088155 (Wash. Ct. App. Aug. 19, 2014) (unpublished) http://www.courts.wa.gov/opinions/pdf/313352.unpub.pdf; State v. Taylor , 150 Wash.2d 599, 603, 80 P.3d 605 (2003) (stating that an aggrieved party is "one whose personal right or pecuniary interests have been affected"); Sheets v. Benevolent & Protective Order of Keglers, 34 Wash.2d 851, 855, 210 P.2d 690 (1949). A party is not aggrieved by a favorable decision and cannot properly appeal from such a decision. Paich v. N. Pac. Ry. Co., 88 Wash. 163, 165-66, 152 P. 719 (1915). " '[T]he mere fact that a person is hurt in his [or her] feelings, wounded in his [or her] affections, or subjected to inconvenience, annoyance, discomfort, or even expense by a decree, does not entitle [that party] to appeal from it.' " Elterich v. Arndt, 175 Wash. 562, 564, 27 P.2d 1102 (1933) (quoting 2 RULING CASE LAW Necessity That Appellant Be Prejudiced § 34, at 53 (1914)).

¶ 14 Reynolds contends that it was aggrieved before the Court of Appeals because the supplemental judgment of $ 1,662 awarded by the superior court commissioner remains unsatisfied. Additionally, because Harmon was not directed to post a bond under RCW 59.18.390(1), Reynolds asserts it was "deprived" of "a ready means of satisfying the judgment." Resp't's Suppl. Br. at 1.

¶ 15 Reynolds' argument is unconvincing. First, it fails to address the fact that Reynolds prevailed on every issue raised below. At the trial court, the landlord obtained a default judgment and writ of restitution, obtaining "all of the relief it sought-full rent for August and September and the right to amend the judgment to recoup damages to the premises that occurred during litigation." Pet'r's Suppl. Br. at 6 (citing Clerk's Papers (CP) at 20-22). A party is not aggrieved by a favorable decision and cannot properly appeal from it. Paich , 88 Wash. at 165-66, 152 P. 719.

¶ 16 Second, Reynolds essentially contends it was inconvenienced because one method of satisfying a judgment was not imposed. Inconvenience alone is hot sufficient under RAP 3.1. Elterich , 175 Wash. at 563-64, 27 P.2d 1102. Reynolds therefore does not qualify as an "aggrieved party" and had no grounds to appeal. RAP 3.1 ; Paich , 88 Wash. at 165-66, 152 P. 719. The Court of Appeals should have dismissed review.

¶ 17 Harmon, however, is aggrieved. RAP 3.1 ; RAP 13.4(b)(4). The Court of Appeals reversed the commissioner's stay; the original order was a ruling in Harmon's favor.

See Paich , 88 Wash. at 165-66, 152 P. 719. In total, Harmon incurred over $ 4,000 in judgments against her. These judgments adversely affected her pecuniary rights and imposed a monetary obligation. Sheets , 34 Wash.2d at 855, 210 P.2d 690. Harmon was legally injured by the Court of Appeals' decision, thus she has standing to seek further appellate review. RAP 3.1.

2. The Court of Appeals properly applied the substantial public interest exception to mootness

¶ 18 Harmon contends that the issues raised at the Court of Appeals were moot. As a general rule, "where only moot questions or abstract propositions are involved, ... the appeal, or writ of error, should be dismissed." Sorenson v. City of Bellingham , 80 Wash.2d 547, 558, 496 P.2d 512 (1972) ; see also Klickitat County Citizens Against Imported Waste v. Klickitat County , 122 Wash.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993); State v. Beaver , 184 Wash.2d 321, 330, 358 P.3d 385 (2015) (" 'A case is technically moot if the court can no longer provide effective relief.' " (quoting State v. Hunley , 175 Wash.2d 901, 907, 287 P.3d 584 (2012) )). Reynolds' appeal below was moot because the stay order was lifted, the unlawful detainer action was successful, and Harmon was ultimately evicted. The Court of Appeals could offer no relief.

¶ 19 However, even if a case becomes moot, the court has discretion to decide an appeal if the question is of continuing and substantial public interest. Sorenson , 80 Wash.2d at 558, 496 P.2d 512. To determine whether a case presents an issue of continuing and substantial public interest, we consider a nonexclusive list of criteria: " '[ (1) ] the public or private nature of the question presented, [ (2) ] the desirability of an authoritative determination for the future guidance of public officers, and [ (3) ] the likelihood of future recurrence of the question.' " Hunley , 175 Wash.2d at 907, 287 P.3d 584 (alterations in original) (internal quotation marks omitted) (quoting In re Pers. Restraint of Mattson , 166 Wash.2d 730, 736, 214 P.3d 141 (2009) ). As a fourth factor, courts may also consider the level of adversity between the parties and the quality of the advocacy of the issues. Hart v. Dep't of Soc. & Health Servs. , 111 Wash.2d 445, 448, 759 P.2d 1206 (1988).

¶ 20 The four factors for determining whether a matter meets the public interest exception to mootness ultimately weigh in favor of deciding this case on the merits. First, the question of whether the RLTA applies to tenants contesting default judgments is an issue of statutory interpretation. Matters of statutory interpretation tend to be more public, more likely to arise again, and helpful to public officials. Procedurally, this case presents issues implicating our rules on appellate procedure that, like matters of statutory interpretation, are more public in nature. Hart , 111 Wash.2d at 449, 759 P.2d 1206 ; see Jafar v. Webb , 177 Wash.2d 520, 526, 303 P.3d 1042 (2013) (we interpret court rules in the same manner as statutes). Second, our determination of a potential limitation on ex parte stay orders for writs of restitution and the ability of a commissioner to waive the filing of a bond under RCW 59.18.390 will guide future trial and appellate courts. Third, unlawful detainer actions are, unfortunately, routine occurrences and so similar questions are likely to recur. Fourth, the level of adversity between the parties favored the landlord.

¶ 21 On balance, the four factors support reaching the merits of this case. Thus, the Court of Appeals properly applied the substantial public interest exception to mootness.

3. The Court of Appeals properly considered additional evidence

¶ 22 We next consider Harmon's argument that new evidence considered on appeal violated the rules of appellate procedure. The Court of Appeals commissioner granted Reynolds' motion to supplement the record with two declarations from the landlord's attorneys. See Comm'r's Ruling, Reynolds v. Harmon , No. 49588-1-II (Wash. Ct. App. Feb. 17, 2017) (permitting declarations from Michael G. Gusa and Mary Ann Strickler). Harmon asserts that the declarations constitute new evidence outside the record and should not have been admitted pursuant to RAP 9.10 or 9.11. Surprisingly, Reynolds contends neither rule is applicable. Reynolds instead offers RAP 1.2 as the ground for admitting the declarations. Although RAP 1.2 does not provide a freestanding mechanism to admit new evidence, its direction to liberally read these procedural rules guides our interpretation of RAP 9.10 and 9.11. In light of RAP 1.2, Reynolds' declarations were properly admitted.

¶ 23 Turning first to RAP 9.10, a motion to supplement the record under this rule allows a party to request that additional portions of an already existing trial record be transmitted to the appellate court. RAP 9.10 ; Buckley v. Snapper Power Equip. Co. , 61 Wash. App. 932, 941, 813 P.2d 125 (1991). The declarations offered by Reynolds were not part of the trial record.

¶ 24 Reynolds' motion would have been more properly brought under RAP 9.11. RAP 9.11 is a limited remedy under which a court may direct additional evidence be taken, provided certain prerequisites are met. RAP 9.11(a) ; State v. Ziegler , 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The rule restricts the use of new evidence to only instances when the evidence is directed to "the merits of the case," among other requirements. RAP 9.11(a).

¶ 25 The new evidence in Reynolds' declarations does not expressly concern the merits of its case. The declarations assert that granting the ex parte stay of the writ of restitution was likely to recur, one of the criteria for determining whether an issue is of substantial public interest. This assertion does not implicate the substantive issues but does address the legal question of mootness.

¶ 26 A strict reading of RAP 9.11 counsels against application of this rule. However, it is clear from RAP 1.2 that an appellate court may exercise its discretion to consider cases and issues on their merits. RAP 1.2(a). In this case, mootness posed a procedural hurdle to be overcome in order for the Court of Appeals to weigh in on the substantive questions. To reach the merits of Reynolds' case, as RAP 1.2 directs, new evidence addressing mootness was required. Reading RAP 9.11 liberally would permit the introduction of Reynolds' additional evidence. The Court of Appeals did not err in admitting the declarations.

4. RCW 59.18.390 does not prohibit the stay of a writ of restitution after entry of a default judgment

a. Residential Landlord Tenant Act, ch. 59.18 RCW

¶ 27 Turning now to the merits, Harmon argues that RCW 59.18.390 does not limit the ability of a court to stay execution of a writ of restitution after a default judgment is entered. Central to Harmon's argument is the procedural posture of her case, namely, that subsection .390(1) applies to situations in which a tenant seeks to remain in a premises after a writ of restitution is issued and prior to a trial on the merits. In Harmon's case, a default judgment was entered and no trial occurred. She sought not to stay the writ pending trial but to contest entry of default and execution of the writ. Harmon argues that .390(1) does not apply to actions contesting default judgments. We agree.

¶ 28 The meaning of a statute is a question of law reviewed de novo. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002). The court's fundamental objective is to ascertain and carry out the legislature's intent, and if the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent. Id. at 9-10, 43 P.3d 4. "Plain meaning 'is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' While we look to the broader statutory context for guidance, we 'must not add words where the legislature has chosen not to include them,' and we must 'construe statutes such that all of the language is given effect.' " Lake v. Woodcreek Homeowners Ass'n , 169 Wash.2d 516, 526, 243 P.3d 1283 (2010) (quoting State v. Engel , 166 Wash.2d 572, 578, 210 P.3d 1007 (2009) ; Rest. Dev., Inc. v. Cananwill, Inc. , 150 Wash.2d 674, 682, 80 P.3d 598 (2003) ).

¶ 29 To properly determine Harmon's claim, it is critical to understand the statutory scheme of unlawful detainer actions. Governed by chapters 59.12 and 59.18 RCW, an unlawful detainer action is a statutorily created proceeding that provides an expedited method of resolving the right to possession of property. Christensen v. Ellsworth , 162 Wash.2d 365, 370-71, 173 P.3d 228 (2007). Because this case involves a residential tenancy, it is governed by the RLTA. See RCW 59.18 et seq. The procedures set forth in the generalized unlawful detainer statutes, chapter 59.12 RCW, "apply to the extent they are not supplanted by those found in the Residential Landlord-Tenant Act." Hous. Auth. of City of Pasco & Franklin County v. Pleasant , 126 Wash. App. 382, 390, 109 P.3d 422 (2005). Chapters 59.12 and 59.18 RCW are statutes in derogation of the common law and thus are strictly construed in favor of the tenant. Hous. Auth. of City of Seattle v. Silva , 94 Wash. App. 731, 734, 972 P.2d 952 (1999).

¶ 30 The RLTA sets out the step-by-step procedure for evicting tenants as unlawful detainers. A tenant cannot hold over in the premises after termination of the rental agreement. RCW 59.18.290. To evict a holdover tenant, the landlord must serve the eviction notice on the tenant. RCW 59.18.200(1)(a). If the tenant has not complied with the eviction, the landlord serves a summons and complaint. RCW 59.18.365. The summons must be in a specific form and contain specific content required by statute. Id. ("The summons must contain the names of the parties to the proceeding, the attorney or attorneys if any, the court in which the same is brought...."). The tenant's answer or notice of appearance may be in writing by the return date listed in the summons, and if the tenant does not answer by that date, the landlord may move for a default judgment. Id.

¶ 31 To evict the tenant, a landlord may apply for a writ of restitution at the same time as commencing the action or at any time thereafter. RCW 59.18.370. To obtain a writ, a landlord must apply for an order for a show cause hearing to be held 6 to 12 days after the order and serve that order on the tenant. Id. A show cause hearing is a "summary proceeding[ ] to determine the issue of possession pending a lawsuit" and is not the final determination of rights in an unlawful detainer action. Carlstrom v. Hanline , 98 Wash. App. 780, 788, 990 P.2d 986 (2000) ; see also Faciszewski v. Brown , 187 Wash.2d 308, 321, 386 P.3d 711 (2016) (noting that show cause hearings often provide the only opportunity for tenants to present evidence).

¶ 32 At the show cause hearing, the court will determine if the landlord is entitled to a writ of restitution before a trial on the complaint and answer. RCW 59.18.380. Under this provision, the court will determine if the premises should be returned to the landlord. Id. If it appears the landlord has the right to be restored to possession of the property, the court will order issuance of the writ and the tenant may "stay the execution of the writ pending final judgment" by paying into the court all rent found to be due and, in addition, paying on a monthly basis "pending final judgment," the amount equal to the monthly rent. Id.

¶ 33 Whether or not the court issues a writ of restitution at the show cause hearing, if material factual issues exist, the court is required to enter an order directing the parties to proceed to trial on the complaint and answer. Id. ; Pleasant , 126 Wash. App. at 393, 109 P.3d 422 (citing RCW 59.18.380).

¶ 34 If a writ of restitution is issued at the RCW 59.18.380 show cause hearing, the landlord can deliver the writ to the sheriff, who will serve it on the tenant. RCW 59.18.390(1). The tenant may stay the writ of restitution upon posting a bond approved by the court. Id. In other words, tenants may stay in a premises after the writ of restitution is issued, provided the tenant executes a bond to the landlord and proper notice of the time and place is given for fixing the bond's amount.

¶ 35 A bond is required only if the tenant wishes to continue to occupy the premises pending trial. The purpose of the bond is to secure the landlord against losses during the pendency of the proceedings while the tenant continues to occupy the premises. Pleasant , 126 Wash. App. at 390, 109 P.3d 422 (citing RCW 59.18.390). The statute specifies the procedure for posting said bond. RCW 59.18.390(1). RCW 59.18.410 requires entry of a final judgment following trial.

b. Application of the RLTA to this case

¶ 36 Harmon argues the language of subsection .390(1), as well as its statutory scheme, illustrate that the provision does not apply to tenants seeking to contest default judgments. Reynolds takes a different view. The landlord contends that nothing in the language of .390(1) limits its application to writs granted ex parte in a default judgment and urges us not to read words into the statute.

¶ 37 As the statutory scheme above illustrates, RCW 59.18.390 is not a stand-alone provision. To be properly understood, it must be read with the preceding statutes. Taken together, these provisions set out the step-by-step process by which a landlord evicts a tenant who has unlawfully held over. The unlawful detainer provisions detail an eviction process in which a tenant defends herself and proceeds to a trial on the merits. See, e.g., RCW 59.18.380 ("The court shall also enter an order directing the parties to proceed to trial on the complaint and answer in the usual manner."). RCW 59.18.380 expressly and repeatedly states that a tenant who has answered the eviction summons may stay a writ "pending final judgment"-that a trial on the merits will be held. RCW 59.18.390 provides the process for a serving a writ of restitution, but contains no language on default judgments.

¶ 38 Simply put, RCW 59.18.390 does not contemplate a situation where the tenant challenges the process by which the default judgment was entered. It is silent on the issue, and we decline to read default actions into .390(1). In re Custody of Smith , 137 Wash.2d 1, 12, 969 P.2d 21 (1998) (stating that reviewing courts will not read into a statute words that are not there). Moreover, it would be inequitable to extend the bond requirement to such circumstances, especially when the statute does not explicitly require it. See Hous. Auth. of City of Everett v. Terry , 114 Wash.2d 558, 563, 789 P.2d 745 (1990) ("The unlawful detainer statute is in derogation of the common law, and must therefore be strictly construed in favor of the tenant.").

¶ 39 A party in Harmon's position that wishes to contest entry of a default judgment has recourse in the Civil Rules. The Civil Rules are the rules of practice for virtually all civil actions, including unlawful detainer actions, unless the rules conflict with the unlawful detainer statutes. See Christensen , 162 Wash.2d at 374-75, 173 P.3d 228 ("Courts have applied the civil rules to proceedings under the unlawful detainer statute in absence of express inconsistences."); see also Hall v. Feigenbaum, 178 Wash. App. 811, 818, 319 P.3d 61 (2014).

¶ 40 The Civil Rules provide a mechanism for a party to contest a default judgment. CR 55 governs default and judgment. A party that fails to appear, plead, or otherwise defend against a claim may be placed in default, and a judgment may be entered against that party. CR 55. A motion for default may be brought against such a party. CR 55(a)(1). Reynolds followed this procedure when Harmon did not appear or defend against the unlawful detainer complaint-the landlord moved for an order of default and judgment, albeit not specifically referencing any civil rule in the motion.

¶ 41 CR 55(c) states that for good cause shown and on terms the court deems just, the court may set aside default in accordance with CR 60(b), which details the procedure on vacation of judgment. CR 55(c)(1) ; CR 60(e)(1)-(3) (motion, notice, and service). CR 62 governs stays of proceedings to enforce a judgment. Subsection (b) explains that a court may, in its discretion, stay the enforcement of a judgment.

¶ 42 Harmon sought to stay the writ pending a hearing on the merits of her motion to vacate judgment. By its plain language, RCW 59.18.390(1) is inapplicable. Accordingly, we reverse the Court of Appeals' opinion.

c. The commissioner properly stayed execution of the writ of restitution

¶ 43 We conclude that tenable grounds exist for the superior court commissioner to have stayed the default judgment under the Civil Rules. Reynolds argues that even if subsection.390(1) does not apply to Harmon, the superior court nevertheless erred by granting the stay. Unfortunately, the record does not show the grounds under which Harmon sought a stay of execution of the writ or a transcript for the September 23, 2016 show cause hearing. Because no trial occurred, neither section .380 nor section .390 applies to Harmon's case. Effectively, therefore, Harmon's motion to stay the writ and default judgment was a motion to set aside default judgment under CR 62(b).

¶ 44 CR 62 explicitly gives a trial court "discretion" to grant or deny a motion to stay and permits the court to condition stays "for the security of the adverse party as are proper." CR 62(b). Harmon alleged that she filed an answer before the deadline and that the multiple addresses on Reynolds' pleadings caused confusion. In light of these reasons, the commissioner properly exercised her discretion in staying the judgment for four days until a hearing could establish the facts. CR 62 ; see also State v. Templeton , 148 Wash.2d 193, 212, 59 P.3d 632 (2002) (a court has the inherent power to prescribe rules of procedure and practice).

¶ 45 As in any equitable balancing, in determining whether to grant a stay under CR 62 in cases like this, a trial court judge or commissioner must keep in mind the purpose underlying the RLTA and unlawful detainer actions-that these provisions were designed to hasten the recovery of possession and craft relief that properly and efficiently balances both the landlord's and the tenant's competing interests. See Terry , 114 Wash.2d at 564, 789 P.2d 745. In this case, the commissioner ably balanced the competing interests and equities in issuing the temporary stay.

d. The trial court's inherent equitable authority allows a commissioner to grant an ex parte stay of a default judgment including a writ of restitution

¶ 46 We hold that a court's inherent equitable authority allows granting an ex parte stay of a default judgment issuing a writ of restitution.

¶ 47 This issue brings together two related yet distinct concepts. First, in general, motions must be made on notice and orders should not be issued on ex parte application. CR 5(a) ; e.g., In re Marriage of Mahalingam , 21 Wash. App. 228, 584 P.2d 971 (1978) (notice required by CR 6(d) may not be dispensed with). Second, courts possess inherent equitable powers to fashion remedies as justice demands. CONST . art. IV, § 6 ("Superior courts and district courts have concurrent jurisdiction in cases in equity."); State v. Werner , 129 Wash.2d 485, 918 P.2d 916 (1996) (the power to regulate practice and procedure of superior courts is one that is inherently judicial and may not be abrogated or restricted by any legislative act). Where the court's inherent power is concerned, "[w]e are at liberty to set the boundaries of the exercise of that power." In re Recall of Pearsall-Stipek , 136 Wash.2d 255, 267 n.6, 961 P.2d 343 (1998).

¶ 48 Reynolds contends that a court must have unambiguous authority under a rule or statute to grant an ex parte stay. The landlord invokes CR 5(a) in support, which states that "every written motion other than one which may be heard ex parte ... shall be served upon each of the parties" in an action. The Court of Appeals agreed and reasoned that CR 5(a) 's "shall" creates a mandatory obligation and "may" indicates a permissive provision. Therefore, the plain language of the rule requires every motion to be served on a party unless it is "permitted " to be heard ex parte; and, if an ex parte motion is permitted, there must logically be some source of authority allowing it. Reynolds , 1 Wash. App. 2d at 246-49, 404 P.3d 602. Because no express authority permitted the commissioner to grant the stay to Harmon ex parte, the ruling was improper.

¶ 49 The Court of Appeals' analysis of CR 5(a) is correct, but the conclusion it draws is not. Under the CR 5(a), a party must serve a written motion unless there is permission to hear that motion ex parte. The source of authority for hearing an ex parte motion is the court's inherent equitable powers to regulate its own procedures. City of Spokane v. J-R Distribs., Inc. , 90 Wash.2d 722, 727, 585 P.2d 784 (1978). A proceeding to vacate or set aside a default judgment is equitable in character, and the relief sought or afforded is to be administered according to equitable principles and terms. Morin v. Burris , 160 Wash.2d 745, 754, 161 P.3d 956 (2007).

¶ 50 Here, the commissioner stayed the writ of restitution because Harmon alleged she answered before entry of default. In a perfect world, Harmon would have had representation or titled her motion specifically as moving to vacate a default judgment under CR 62. Nevertheless, the record shows Harmon sought to stay execution of the writ of restitution and default judgment. The commissioner properly exercised her inherent equitable authority hearing the motion ex parte and granting a stay ex parte.

5. The RLTA does not require Harmon to post a bond or give notice

¶ 51 Reynolds argues that the superior court erred by waiving the bond requirement under the RLTA, specifically RCW 59.18.390(1), and that .390(1) requires notice and a hearing to determine the amount of that bond, which the landlord did not receive because of the waiver. This argument incorrectly assumes .390(1) applies to tenants seeking to vacate a default judgment. As discussed in detail above, this provision does not apply to Harmon; she moved to stay execution of the writ and default judgment, which is governed pursuant to CR 55, 60, and 62. Had the default judgment not been entered and the unlawful detainer action set over for a trial on the merits, .390(1) would have been triggered. Harmon would have been required to post a bond and give notice to Reynolds in order to stay in her home until trial. RCW 59.18.390(1). Because Harmon contested the default judgment, .390(1) does not apply. She was therefore not required by that statute to post a bond or abide by .390(1)'s notice and hearing requirements. Her obligations were set forth in the civil rules instead.

6. Attorney Fees and Costs

¶ 52 RAP 18.1(a) allows a party to request reasonable fees and costs on review.

A contract providing for an award of these fees at trial supports such an award on appeal.

Hall , 178 Wash. App. at 827, 319 P.3d 61. Harmon's rental agreement states that "the prevailing party shall be entitled to recover its reasonable attorney fees and court costs incurred in the event [of] any ... proceeding commenced to enforce the terms of this Agreement." CP at 13. Reynolds commenced this unlawful detainer action to enforce the terms of the rental agreement, and Reynolds was the prevailing party. Reynolds , 1 Wash. App. 2d at 253, 404 P.3d 602 (citing Hall , 178 Wash. App. at 827, 319 P.3d 61 ). Reynolds sought and was awarded attorney fees and costs at the Court of Appeals. Id. at 252-53, 404 P.3d 602.

¶ 53 It appears neither party requests or provides adequate argument justifying the award of fees and costs before this court. RAP 18.1. Because we reverse the Court of Appeals on the merits, we also reverse the award of appellate attorney fees and costs.

CONCLUSION

¶ 54 Procedurally, Reynolds was not aggrieved before the Court of Appeals, which erred in granting review. RAP 3.1. Nevertheless, the Court of Appeals properly applied the public interest exception to mootness and considered Reynolds' declarations. Before this court, Harmon is an aggrieved party with standing to appeal. Id. On the merits of her claim, we conclude that RCW 59.18.390(1) does not apply to tenants contesting entry of default judgments in unlawful detainer actions and are instead governed by the Civil Rules. Harmon sought to challenge the default judgment entered against her, therefore .390(1) is inapplicable and Harmon was not required to post a bond. We reverse the Court of Appeals, including the award of attorney fees and costs to Reynolds.

WE CONCUR.

Owens, J.

González, J.

Gordon McCloud, J.

Yu, J.

STEPHENS, J. (concurring)

¶ 55 I agree with the majority that respondent Randy Reynolds & Associates (Reynolds)

was not "aggrieved" by the trial court's judgment in its favor and therefore could not appeal from that judgment. See majority at 681-82 (citing RAP 3.1 ). On that ground alone, petitioner Kasey Harmon is entitled to relief from the Court of Appeals' decision imposing fees and other penalties against her. I would vacate the Court of Appeals' decision, thereby granting the primary relief Harmon requested, and end the analysis there. By reaching the merits of the Court of Appeals' decision, the majority goes well beyond what is necessary to decide this case and issues a sweeping affirmation of the superior court's "equitable powers to regulate its own procedures." Id. at 687. Such a broad holding, unsupported by precedent, risks upsetting the statutory scheme at issue and spilling beyond the specific context of "an ex parte stay of a default judgment issuing a writ of restitution." Id. at 686. Because I favor a more modest holding on narrow grounds, I concur only in the result.

ANALYSIS

¶ 56 The majority agrees with the Court of Appeals that CR 5(a) prohibits ex parte hearings except by specific permission. Id. at 686-87. But it holds that because the hearing in this case was "equitable in character," an ex parte order was within the superior court's inherent authority "to regulate its own procedures." Id. at 687. The majority cites two cases in support of this broad principle: City of Spokane v. J-R Distribs., Inc. , 90 Wash.2d 722, 727, 585 P.2d 784 (1978) and Morin v. Burris , 160 Wash.2d 745, 754, 161 P.3d 956 (2007). Majority at 687. Neither bears the weight of the majority's holding.

¶ 57 The first case, J-R Distributors , is simply inapposite. The court there struck down a city ordinance prescribing detailed rules of procedure and evidence for certain superior court actions, many of which conflicted with existing court rules and state statutes. J-R Distribs. , 90 Wash.2d at 724-32, 585 P.2d 784. The opinion recites some general separation of powers principles, including the well-established rule that no legislative body may limit the judiciary's constitutional powers of self-regulation, id. at 727, 585 P.2d 784, but it says nothing at all about an individual court's inherent powers in equity. Rather, it affirms the power of the judicial branch to promulgate uniform court rules enforceable across the state. Id. at 728, 585 P.2d 784.

¶ 58 The second case, Morin , actually undermines the majority's reasoning. Morin addressed three consolidated cases in which civil defendants communicated privately with an opposing party before any action was commenced but, thereafter, failed to file responsive pleadings or otherwise appear in court. 160 Wash.2d at 750-53, 161 P.3d 956. In each case, the superior court issued a default order for the plaintiff, and in each case, the defendant moved to vacate the order on the ground that private, prelitigation communications constitute an "appearance," precluding judgment by default. Id. at 751-54, 161 P.3d 956 (quoting CR 55(a)(1) (motion for default permitted " '[w]hen a party against whom a judgment for affirmative relief is sought has failed to appear, plead, or otherwise defend' " (alteration in original))). In two of the cases, the trial court granted the motion to vacate, and the Court of Appeals affirmed. Id. at 751-53, 161 P.3d 956. In the third case, the trial court denied the motion and the Court of Appeals reversed. Id. at 752, 161 P.3d 956. This court granted review and held that even though default judgments are disfavored and a proceeding to vacate such a judgment is equitable in nature, prelitigation conduct can never constitute an "appearance" sufficient to preclude judgment by default. Id. at 754, 757, 161 P.3d 956. Thus, Morin holds that the superior court does not have authority to vacate a default judgment on the basis of such an "informal" appearance. Id. at 757, 161 P.3d 956. This holding is flatly contrary to the majority's assertion that superior courts have inherent authority to regulate all equitable proceedings on a case-by-case basis. See majority at 687.

¶ 59 The majority attempts to limit its holding to the narrow context of ex parte stays of default judgments issuing writs of restitution. Majority at 686-87. But the reasoning the majority employs is far broader, affirming the superior court's inherent authority (which seemingly supersedes court rules) to regulate all equitable proceedings. Id. at 687. Per the majority's reasoning, that authority is not limited to the specific context of evictions, default judgments, or stays. Nor is it restricted to situations involving the specific implied powers at issue in the cases the majority cites.

¶ 60 Absent any articulated limiting principle in its reasoning, the majority's affirmation of the superior court's inherent authority risks spilling beyond the context of this case and undermining the orderly procedures set forth in well-considered court rules. The risk of the unintended consequences that may follow is not worth taking, given that this case is so readily resolved on the narrow, basic rule that only an "aggrieved" party may appeal from a judgment. As we all agree, Reynolds is not an aggrieved party.

CONCLUSION

¶ 61 The court should not use this case to announce a sweeping new holding about the superior court's inherent powers. The more prudent course of action is to grant Harmon the remedy she initially sought in her petition to this court and to which she is entitled: vacation of the Court of Appeals' decision under RAP 3.1.

Johnson, J.

Fairhurst, C.J.

Madsen, J.

      Merriam-Webster's Collegiate Dictionary defines "neuropathy" as "an abnormal and [usually] degenerative state of the nervous system or nerves." Merriam-Webster's Collegiate Dictionary 781 (10th ed. 1993).

      Both Reynolds' and Harmon's supplemental briefings to this court are titled as respondent's supplemental briefs. To avoid confusion, I will refer to Harmon as "Petitioner" and Reynolds as "Respondent" (i.e., Harmon's brief cited as "Petitioner's Supplemental Brief").

      RCW 59.18.200(1)(a) states,
      When premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable, and shall be terminated by written notice of twenty days or more, preceding the end of any of the months or periods of tenancy, given by either party to the other.

      RCW 59.18.390(1) provides, in pertinent part,
      The sheriff shall, upon receiving the writ of restitution, forthwith serve a copy thereof upon the defendant ... or a person in possession of the premises, and shall not execute the same for three days thereafter, and the defendant, or person in possession of the premises within three days after the service of the writ of restitution may execute to the plaintiff a bond to be filed with and approved by the clerk of the court in such sum as may be fixed by the judge, with sufficient surety to be approved by the clerk of the court, conditioned that they will pay to the plaintiff such sum as the plaintiff may recover for the use and occupation of the premises, or any rent found due, together with all damages the plaintiff may sustain by reason of the defendant occupying or keeping possession of the premises, together with all damages which the court theretofore has awarded to the plaintiff as provided in this chapter, and also all the costs of the action.... The plaintiff, his or her agent or attorneys, shall have notice of the time and place where the court or judge thereof shall fix the amount of the defendant's bond, and shall have notice and a reasonable opportunity to examine into the qualification and sufficiency of the sureties upon the bond before the bond shall be approved by the clerk.

      Pet. for Review (arguing only that the Court of Appeals' decision should be vacated; not requesting reversal on the merits); Suppl. Br. of Resp't Kasey Harmon at 17-18 (requesting vacation of the Court of Appeals' decision or, in the alternative, reversal, "[i]f this Court chooses to reach the merits").

      Where it addresses the superior court's authority to hear the ex parte motion at issue in this case, the majority cites several cases articulating general separation of powers principles. Majority at 686-87 (citing State v. Werner , 129 Wash.2d 485, 918 P.2d 916 (1996) ; In re Recall of Pearsall-Stipek , 136 Wash.2d 255, 267 n.6, 961 P.2d 343 (1998) ; J-R Distribs., Inc. , 90 Wash.2d 722, 585 P.2d 784 ). But those principles are not at stake here, where the superior court's action implicates a court-made rule (CR 5(a) ) rather than a legislative act. See State v. Otton , 185 Wash.2d 673, 685, 374 P.3d 1108 (2016) (" '[W]hen interpreting court rules we are not concerned about usurping the role of the legislature because we alone are uniquely positioned to declare the correct interpretation of any court-adopted rule.' " (alteration in original) (quoting Jafar v. Webb, 177 Wash.2d 520, 527, 303 P.3d 1042 (2013) )).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Kimberly J. GERLACH, Respondent, v. The COVE APARTMENTS, LLC, a Washington corporation; and Weidner Property Management, LLC, a Washington corporation, Appellants, and Weidner Apartment Homes, a Washington business entity, dba The Cove Apartments, and Weidner Asset Management LLC, a Washington corporation, Defendants.
    No. 77179-5-I
    Court of Appeals of Washington, Division 1.
    FILED: March 18, 2019
    Pauline Victoria Smetka, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Appellants.
    Benjamin Franklin Barcus, Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, 4303 Ruston Way, Tacoma, WA, 98402-5313, Simon Henri Forgette, Attorney at Law, Janis Mary Nevler, Simon H. Forgette P.S., 406 Market St. Ste. A, Kirkland, WA, 98033-6135, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Respondent.
    PUBLISHED OPINION
   Smith, J.

¶1 Kimberly Gerlach sued The Cove Apartments LLC and Weidner Property Management LLC (collectively Cove) after she fell from a second story apartment balcony with a rotted railing and suffered life threatening injuries. Gerlach was extremely intoxicated at the time of the fall. At trial, Cove sought to limit its liability by proving that Gerlach's intoxication was the proximate cause of her damages and that she was more than 50 percent at fault, in accordance with the affirmative defense of voluntary intoxication under RCW 5.40.060(1). Because the trial court abused its discretion by excluding evidence of Gerlach's blood alcohol level at the time of the accident and that exclusion prejudiced Cove's ability to prove Gerlach's intoxication proximately caused her injuries, we reverse and remand for a new trial.

FACTS

¶2 On October 26, 2012, Gerlach and her boyfriend Nathan Miller, along with Colin and Brodie Liddell, went to a birthday party and then to a bar within walking distance of Miller's apartment. Miller lived in a second story unit at The Cove Apartments in Federal Way, which were owned by The Cove Apartments LLC and managed by Weidner Property Management LLC. After the bar closed in the early hours of October 27, Miller and Colin stopped by a convenience store to buy beer, while Gerlach and Brodie returned to Miller's apartment. Brodie stopped to smoke a cigarette before going inside. While he was smoking, he heard a snap and turned in time to see Gerlach in midair, just before she landed head-first on a concrete step on the ground floor. A rotted railing from Miller's balcony also fell near Gerlach. Gerlach suffered a life threatening head injury as a result of the fall.

¶3 Gerlach sued Cove, alleging breach of contract, violations of the Residential Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW, and negligence. The breach of contract claim was dismissed on summary judgment because Gerlach was not a tenant and had no contractual relationship with Cove.

¶4 Although no one witnessed how Gerlach fell and Gerlach does not remember the events of that night, her theory at trial was that the severely rotted railing on Miller's balcony gave way while she was leaning on it, causing her to fall to the ground. Relying on testimony from a biomechanical expert, Cove proffered an alternative theory: that Gerlach did not have a key to the front door, tried to enter the apartment via the balcony, and fell while trying to climb over the balcony railing from the outside. This theory supported Cove's affirmative defense under RCW 5.40.060(1) that Gerlach was intoxicated at the time of the accident, her intoxication was a proximate cause of her injuries, and she was more than 50 percent at fault. To this end, Cove attempted to introduce evidence that Gerlach's blood alcohol concentration (BAC) at the time of the accident was .238 and expert testimony on how a BAC of that level would affect a person's judgment, psychomotor functions, and cognitive abilities. The trial court excluded this evidence and testimony because it found they were more prejudicial than probative. Instead, the trial court instructed the jury that Gerlach "was under the influence of intoxicating liquor at the time of the accident."

¶5 The jury found that Cove was negligent and that its negligence proximately caused Gerlach's injuries. It also found that Gerlach was contributorily negligent and seven percent at fault. The jury verdict was $3,799,793.78, and the net award to Gerlach was $3,533,808.23.

¶6 Cove appeals.

ANALYSIS

Exclusion of Gerlach's Blood Alcohol Level

¶7 Cove argues that the trial court abused its discretion by excluding evidence of Gerlach's blood alcohol level and that the exclusion was prejudicial. We agree.

¶8 We reverse a trial court's evidentiary rulings only upon a showing of abuse of discretion. Subia v. Riveland, 104 Wash. App. 105, 113-14, 15 P.3d 658 (2001). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wash.2d 39, 46-47, 940 P.2d 1362 (1997). But an error does not require reversal unless it is prejudicial, and "[e]rror will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial." Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wash.2d 188, 196, 668 P.2d 571 (1983).

¶9 "All relevant evidence is admissible unless its admissibility is otherwise limited." Salas v. Hi-Tech Erectors, 168 Wash.2d 664, 669, 230 P.3d 583 (2010) ; ER 402. "Evidence is relevant if it has 'any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " Salas, 168 Wash.2d at 669, 230 P.3d 583 (quoting ER 401). ER 403 allows a trial court to exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice ...." "When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists." Salas, 168 Wash.2d at 671, 230 P.3d 583. Where evidence is undeniably probative of a central issue in the case, the ability of the danger of unfair prejudice to substantially outweigh the probative value of the evidence is " 'quite slim.' " Sisley v. Seattle Sch. Dist. No. 1, 171 Wash. App. 227, 232, 286 P.3d 974 (2012) (internal quotation marks omitted) (quoting Carson v. Fine, 123 Wash.2d 206, 224, 867 P.2d 610 (1994) ).

¶10 Here, Cove asserted a voluntary intoxication defense against Gerlach. This defense, codified as RCW 5.40.060(1), provides a complete defense to Gerlach's action for personal injury if she was intoxicated, her intoxication was a proximate cause of her injury, and she was more than 50 percent at fault. RCW 5.40.060(1) states:

[I]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.

¶11 Before trial, Gerlach moved in limine to exclude evidence of a blood test taken by the hospital less than an hour after the accident. The test showed that her serum alcohol measurement was 252 mg/dL, which roughly translates to a BAC of .238. After several hearings, the trial court granted Gerlach's motion because Gerlach offered to stipulate to the jury that she was intoxicated at the time of the accident. The court determined that if Gerlach admitted she was intoxicated, evidence of her blood alcohol level was not necessary to establish a defense under RCW 5.40.060(1). The trial court explained that, under Peralta v. State, 187 Wash.2d 888, 389 P.3d 596 (2017), an admission of intoxication was sufficient to establish intoxication under RCW 5.40.060(1) and the admission of Gerlach's blood alcohol level would have been more prejudicial than probative under ER 403. Because the trial court misapplied Peralta and ER 403, its exclusion of the blood alcohol evidence was an abuse of discretion.

¶12 ER 403 does not support the exclusion of the blood alcohol evidence. Although evidence of Gerlach's blood alcohol level was irrelevant to establish intoxication once she admitted that she was intoxicated, that evidence was still relevant to prove the extent to which her intoxication proximately caused her injuries. To that end, Cove was prepared to offer expert testimony that a person's physical and cognitive limitations at a BAC of .238 make it less likely that she could safely stand on a balcony or climb over a railing. Although Gerlach's high blood alcohol level could stimulate an emotional response in a jury, it is not so prejudicial that its probative value is outweighed. Because Gerlach's percentage of fault was reserved for the jury, the jury should have been able to consider Gerlach's level of intoxication and how it may have affected her physical and cognitive abilities. Geschwind v. Flanagan, 121 Wash.2d 833, 837-38, 854 P.2d 1061 (1993) (the determination of the percentage of total fault attributable to each party is specifically reserved for the trier of fact).

¶13 Furthermore, the trial court's error in excluding the blood alcohol evidence affected the outcome of the trial. Because of the error, Cove did not have the opportunity to present evidence on a key factual issue: whether Gerlach was predominantly liable for her injuries due to her level of intoxication. See Geschwind, 121 Wash.2d at 839, 854 P.2d 1061 ("[W]hen a person has voluntarily engaged in behavior which increases the risk of injury, he or she may be held to be predominantly liable for the injuries occurring as a result thereof."). Therefore, the error was not harmless.

¶14 Additionally, the trial court's reliance on Peralta was misplaced. In Peralta, a Washington State Patrol car hit Deborah Peralta after she walked directly into the street and in front of the car. Peralta, 187 Wash.2d at 892, 389 P.3d 596. Peralta sued the State for damages, and the State raised the voluntary intoxication defense in Its answer. Peralta, 187 Wash.2d at 892, 389 P.3d 596. During discovery, the State sent Peralta a request to admit or deny that at the time of the collision, she " 'was under the Influence of intoxicating liquors.' " Peralta, 187 Wash.2d at 893, 389 P.3d 596. Peralta admitted without qualification that she was. Peralta, 187 Wash.2d at 893, 389 P.3d 596. Based on this admission, the trial court concluded as a matter of law that the first element of RCW 5.40.060(1) was met and it excluded Peralta's evidence that she did not appear intoxicated before the accident.

Peralta, 187 Wash.2d at 893-94, 389 P.3d 596. The Supreme Court held that Peralta's admission was clearly an admission of intoxication under RCW 5.40.060(1). Peralta, 187 Wash.2d at 899, 389 P.3d 596. It also held that if she did not intend to admit "intoxication" as that term is statutorily defined (i.e., having a BAC greater than .08 or being unable to drive a motor vehicle), Peralta was required to clarify her admission to reflect that distinction. Peralta, 187 Wash.2d at 904-05, 389 P.3d 596. Because it was not relevant to the issues on appeal, the court did not address whether Peralta's level of intoxication contributed to the jury's finding that her intoxication was a proximate cause of her injuries or its finding that she was more than 50 percent at fault. But the Supreme Court did note that there was ample evidence to support the State's voluntary intoxication defense, meaning there was evidence, other than Peralta's admission, of her intoxication presented at trial. Peralta, 187 Wash.2d at 900 n.6, 389 P.3d 596. Here, by contrast, the exclusion of Gerlach's blood alcohol evidence resulted in a complete absence of evidence as to the extent of her intoxication. For this reason, Peralta does not support the trial court's decision to exclude Gerlach's blood alcohol level.

¶15 Gerlach argues that even if the trial court erred in excluding the blood alcohol evidence, the error did not prejudice Cove because Cove "extensively examined Gerlach's companions concerning the extent and degree of their alcohol consumption before returning to the Cove." The record does not support this contention. None of Gerlach's companions testified as to how many drinks Gerlach consumed that night or that she was extremely intoxicated. For example, Brodie testified that Gerlach was drinking that night but that he could not remember what she had to drink. Colin testified that they all "had a drink" at the birthday party and shared a pitcher of beer at the bar and that based on his own observations, he had no reason to believe Gerlach was impaired that night. Finally, Miller testified that he couldn't remember Gerlach drinking but "would guess that she was." The lack of evidence of Gerlach's degree of intoxication prejudiced Cove's ability to prove its affirmative defense.

¶16 Alternatively, Gerlach argues that evidence of her blood alcohol level was properly excluded because there was no evidence that the required standards were met. This argument is not persuasive.

¶17 RCW 5.40.060(1) provides that for purposes of the voluntary intoxication defense,

[t]he standard for determining whether a person was under the influence of intoxicating liquor or drugs shall be the same standard established for criminal convictions under RCW 46.61.502, and evidence that a person was under the influence of intoxicating liquor or drugs under the standard established by RCW 46.61.502 shall be conclusive proof that such person was under the influence of intoxicating liquor or drugs.

RCW 46.61.502 states:

(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506 ; or
....
(c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or
(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.

Notably, only subsection (1)(a) of RCW 46.61.502, which sets forth the standard for "per se" intoxication, refers to specific testing standards that must be met for a person's measured level of intoxication to be used against him or her at trial. These testing standards, which are set forth in RCW 46.61.506, need not be met to show that someone is intoxicated under a non-per-se method such as that described in subsection (1)(c) of RCW 46.61.502. State v. Donahue, 105 Wash. App. 67, 76-77, 18 P.3d 608 (2001) (holding that evidence of intoxication from an Oregon hospital blood alcohol test that did not comply with RCW 46.61.506 standards was admissible to prove a non-per-se offense under RCW 46.61.502 ).

¶18 At trial, Cove specifically argued that Gerlach's blood alcohol evidence could be proved using the non-per-se method under RCW 46.61.502(1)(c). Because the blood alcohol evidence in this case could be evidence of intoxication under that non-per-se method, the test used need not comply with the requirements of RCW 46.61.506 to be admissible. This was not a proper basis for excluding the evidence.

¶19 Because the trial court abused its discretion in excluding the evidence of Gerlach's blood alcohol level at the time of the accident and the exclusion prejudiced Cove's ability to prove its affirmative defense of voluntary intoxication, reversal is required. We address the following issues, also raised on appeal, because they are likely to arise again on remand.

Expert Testimony

¶20 Cove argues that the trial court abused its discretion by limiting the testimony of Cove's experts, Dr. Frank Vincenzi, Dr. Michael Carhart, and Dr. Thomas Wickizer. We agree that the trial court erred in limiting Dr. Vincenzi's testimony but disagree as to the testimony of Dr. Carhart and Dr. Wickizer.

¶21 "Generally, expert testimony is admissible if (1) the expert is qualified, (2) the expert relies on generally accepted theories in the scientific community, and (3) the testimony would be helpful to the trier of fact." Johnston-Forbes v. Matsunaga, 181 Wash.2d 346, 352, 333 P.3d 388 (2014). "When applying this test, trial courts are afforded wide discretion, and trial court expert opinion decisions will not be disturbed on appeal absent an abuse of such discretion." Johnston-Forbes, 181 Wash.2d at 355, 333 P.3d 388.

¶22 If a witness does not have the specialized training or experience necessary to draw the inference offered, the opinion lacks a proper foundation and is inadmissible under ER 702. Simmons v. City of Othello, 199 Wash. App. 384, 392-93, 399 P.3d 546 (2017). Accordingly, even if an expert witness is qualified, testimony from that witness is not admissible if the issue lies outside the witness's area of expertise. Simmons, 199 Wash. App. at 392, 399 P.3d 546. " 'Where there is no basis for the expert opinion other than theoretical speculation, the expert testimony should be excluded.' " Simmons, 199 Wash. App. at 393, 399 P.3d 546 (quoting Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wash.2d 50, 103, 891 P.2d 718 (1995) ).

Dr. Vincenzi

¶23 On appeal, the parties do not dispute that Dr. Vincenzi was a qualified expert as to the effects of alcohol upon the human body. Dr. Vincenzi completed an analysis that included a conversion of Gerlach's serum alcohol measurement of 252 mg/dL at the hospital to the more commonly used BAC number of .238 at the time of the accident. He also testified in an offer of proof as to the effect of the consumption of alcohol on a person based on his or her blood alcohol level. He opined that a person with a BAC of .200 or higher would experience severe psychomotor impairment.

¶24 The trial court excluded Dr. Vincenzi's testimony at the same time that it erroneously excluded the evidence of Gerlach's blood alcohol level. Dr. Vincenzi's testimony would have been helpful to the jury in understanding the effects of intoxication on a person with a high blood alcohol level. To the extent that the trial court excluded Dr. Vincenzi's testimony based on its erroneous ruling on Gerlach's blood alcohol level, that exclusion was in error.

¶25 Gerlach argues that Dr. Vincenzi's testimony was speculative and without foundation because it was based on the hospital blood test that did not comply with the testing standards of RCW 46.61.506. As explained in the previous section, those testing standards do not bar admission. Therefore, this argument is not persuasive.

¶26 Gerlach also argues that Dr. Vincenzi's testimony was properly excluded based on Purchase v. Meyer, 108 Wash.2d 220, 737 P.2d 661 (1987), because evidence of how alcohol affected a person's behavior cannot be based on a blood alcohol test alone. But Purchase was a dramshop liability case and is distinguishable. To find an establishment liable for over-serving alcohol under a dramshop theory, a plaintiff must prove that a server furnished intoxicating beverages to an obviously intoxicated person. Purchase, 108 Wash.2d at 225, 737 P.2d 661. In Purchase, the relevant issue was whether or not it was obvious to a server that the person being served was intoxicated. Purchase, 108 Wash.2d at 227, 737 P.2d 661. The court held that evidence of a person's blood alcohol level alone could not support a finding that a person was "obviously intoxicated" because people can exhibit the effects of intoxication differently. Purchase, 108 Wash.2d at 225-27, 737 P.2d 661.

¶27 This is not a dramshop liability case, and here, there is no requirement that Cove prove Gerlach's intoxication was obvious to others. Rather, the issue in this case is the extent to which Gerlach's extreme intoxication contributed to her injuries. Therefore, Purchase does not control.

¶28 Finally, Gerlach argues that Dr. Vincenzi's testimony was properly excluded because testimony explaining that alcohol Impairs a person's judgment is a matter of common knowledge understood by the average juror and, therefore, not helpful. But, Dr. Vincenzi's testimony was not limited to this basic fact. He explained that a person with a blood alcohol level of .200 or above will have a decrease in inhibitions, psychomotor impairment, and cognitive impairment. He also opined that "[p]sychomotor impairment really starts at levels of .05 (unintelligible), about .05 to .06 or thereabouts and gets worse and worse, more and more impairment, and severe impairment in essentially everyone at levels of [.]200 or above." Dr. Vincenzi's opinion on how a person's physical and cognitive abilities are affected by his or her BAC would have been helpful to the jury and should have been admitted.

Dr. Carhart

¶29 The trial court did not err in limiting Dr. Carhart's testimony. Dr. Carhart is an expert "in the biomechanics of human injury and accident reconstruction, specializing in the areas of musculoskeletal dynamics, occupant dynamics, human injury tolerance, vehicular rollover, and occupant-to-glazing interaction." Dr. Carhart was prepared to testify that Gerlach's intoxication would have caused her to have "diminished stability, psychomotor functioning, reaction time performance, and ability to manage complex motor tasks, such as trying to maneuver over a railing." He based this opinion on two studies that he cited as authoritative sources. But Dr. Carhart is not an expert in how alcohol affects the human body, and his testimony on this issue would have been speculative. Therefore, the trial court properly excluded Dr. Carhart's testimony on this issue.

Dr. Wickizer

¶30 The trial court also did not abuse its discretion by excluding Dr. Wickizer's expert testimony on the reasonable value of Gerlach's medical expenses.

¶31 A plaintiff "may recover only the reasonable value of medical services received, not the total of all bills paid." Patterson v. Horton, 84 Wash. App. 531, 543, 929 P.2d 1125 (1997). "Thus, the plaintiff must prove that medical costs were reasonable and, in doing so, cannot rely solely on medical records and bills." Patterson, 84 Wash. App. at 543, 929 P.2d 1125. "In other words, medical records and bills are relevant to prove past medical expenses only if supported by additional evidence that the treatment and the bills were both necessary and reasonable." Patterson, 84 Wash. App. at 543, 929 P.2d 1125.

¶32 Here, Cove intended to call Dr. Wickizer, a health economist, as an expert witness to testify about the medical billing process and provide a comparative analysis of the cost of medical services. Specifically, Dr. Wickizer authored an analysis on the reasonableness of Gerlach's medical expenses, in which he explained that billing for the same procedures can vary greatly from hospital to hospital and the billed amount is not necessarily reasonable. In the analysis, he recalculated the "reasonable value" of all of Gerlach's medical expenses by applying a cost-to-charge ratio from the hospital's Federal Cost Report to each hospital inpatient charge. The Federal Cost Reports are compiled by the federal government and include cost and revenue information for all patients receiving care at that hospital. Additionally, Dr. Wickizer estimated the reasonable value of Gerlach's physician charges by applying the physician's agreed Medicare reimbursement rate to each physician charge. Cove intended this testimony to assist the jury in evaluating the reasonableness of Gerlach's medical bills.

¶33 The trial court properly excluded Dr. Wickizer's testimony. Evidence of what Gerlach's physicians accept from Medicaid and how the inpatient charges are affected by Dr. Wickizer's cost-to-charge ratio is not proof that Gerlach's medical expenses were unreasonable. In Hayes v. Wieber Enterprises, Inc., 105 Wash. App. 611, 616, 20 P.3d 496 (2001), the Court of Appeals held that the trial court did not abuse its discretion in refusing to admit evidence of the amount a plaintiff's doctor actually accepted as payment from the insurance company to refute the reasonableness of the billed medical expenses. It reasoned that "[t]he fact that the doctor accepted the first party insurance carrier's limit for his services does not tend to prove his charge for these services was unreasonable." Hayes, 105 Wash. App. at 616, 20 P.3d 496.

¶34 The same is true here. Evidence that, on average, a procedure costs less than the amount charged or that Gerlach's physicians accept a lesser payment for services from Medicare is not helpful to the jury in determining whether her medical expenses were reasonable. Furthermore, Gerlach met her burden to prove the reasonableness of her medical expenses under Patterson because she presented expert testimony other than the medical records and bills themselves. Dr. Lowell Finkleman testified that the medical treatment Gerlach received and the resulting charges were reasonable and customary for this community and consistent with charges he had seen over the years. Therefore, the trial court did not abuse its discretion by refusing to allow Dr. Wickizer to testify.

¶35 Cove argues that Hayes is distinguishable because Dr. Wickizer was not testifying on what was charged versus what was paid. We disagree. Although it is not clear from Dr. Wickizer's analysis whether the revenue figure used in the cost-to-charge ratios reflects the amounts billed or the amounts ultimately received for inpatient services, Dr. Wickizer's analysis of Gerlach's physician charges was based on the physicians' agreed Medicare reimbursement rate. Therefore, the court did not abuse its discretion in refusing to allow Dr. Wickizer to testify as to his analysis.

Instruction on Voluntary Intoxication

¶36 Cove argues that the trial court erred by failing to give Cove's proposed jury instruction on its voluntary intoxication defense, which closely followed the pattern instruction. We disagree.

¶37 Jury instructions are sufficient when they allow a party to argue their theory of the case, are not misleading and, when read as a whole, properly inform the jury of the applicable law. Bodin v. City of Stanwood, 130 Wash.2d 726, 732, 927 P.2d 240 (1996). As long as these conditions are met, the trial court may refuse to give augmenting instructions or instructions that are cumulative, collateral, or repetitive. Bodin, 130 Wash.2d at 732, 927 P.2d 240 ; Havens v. C&D Plastics, Inc., 124 Wash.2d 158, 165-66, 876 P.2d 435 (1994). " 'The pattern [jury] instructions are not authoritative primary sources of the law' and are not binding on trial courts." Univ. of Wash. v. Gov't Emps. Ins. Co., 200 Wash. App. 455, 475, 404 P.3d 559 (2017) (alteration in original) (quoting 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 0.10, at 3 (6th ed. 2012) ).

¶38 Whether a jury instruction reflects an accurate statement of law is reviewed de novo. Joyce v. Dep't of Corrs., 155 Wash.2d 306, 323, 119 P.3d 825 (2005). But " '[t]he number and specific language of the instructions are matters left to the trial court's discretion.' " Leeper v. Dep't of Labor & Indus., 123 Wash.2d 803, 809, 872 P.2d 507 (1994) (quoting Douglas v. Freeman, 117 Wash.2d 242, 256, 814 P.2d 1160 (1991) ).

¶39 The pattern instruction for the voluntary intoxication defense under RCW 5.40.060(1) states:

It is a defense to an action for damages for [personal injuries] [wrongful death] that the [person injured] [person killed] was then under the influence of [alcohol] [or] [any drug], that this condition was a proximate cause of the [injury] [death], and that the [person injured] [person killed] was more than fifty percent at fault.

6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 16.03, at 213 (6th ed. 2012) (WPI). This instruction is an accurate statement of the law.

¶40 Here, the trial court instructed the jury that

[a] person who becomes voluntarily intoxicated is held to the same standard of care as one who is not so affected. The intoxication of the plaintiff at the time of the occurrence may be considered by the jury, together with all the other facts and circumstances, in determining whether that person was negligent.

The court also instructed on contributory negligence:

If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.

Cove did not object to either of these instructions. But Cove did object to the trial court's failure to give its proposed instruction on the voluntary intoxication defense, which closely followed WPI 16.03.

¶41 Although the instructions given by the trial court were not an inaccurate statement of the law, they were not particularly clear. To establish its voluntary intoxication defense, Cove was required to prove that (1) Gerlach was under the influence of intoxicating liquor, (2) her condition was a proximate cause of her injury, and (3) she was more than 50 percent at fault. RCW 5.40.060(1). Instructions 20 and 21, as given, allowed Cove to argue its voluntary intoxication defense. The jury was already instructed that Gerlach was "under the influence of intoxicating liquor at the time of the accident," satisfying the first requirement. Instruction 20 instructed the jury to consider whether Gerlach was negligent as a result of that intoxication, satisfying the second requirement of the defense. And, instruction 21 instructed the jury to determine the percentage of fault attributable to Gerlach, satisfying the third requirement. Given these instructions, Cove was able to argue that Gerlach's intoxication was a proximate cause of her accident and that she was more than 50 percent at fault. But, WPI 16.03 contains a more succinct statement of the elements of the voluntary intoxication defense, and while the trial court did not abuse its discretion by giving instructions 20 and 21, WPI 16.03 is a more appropriate instruction and should be used on remand.

Cove's Duty to Gerlach under the RLTA

¶42 Cove argues that because Gerlach was not Cove's tenant, the trial court erred in instructing the jury that Cove owed a duty to Gerlach based on the RLTA. We agree.

¶43 In a negligence case, the plaintiff must prove duty, breach, causation, and damages. Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 198, 943 P.2d 286 (1997). Whether an actionable duty was owed to a plaintiff is a threshold determination and a question of law that this court reviews de novo. Munich v. Skagit Emergency Commc'n Ctr., 175 Wash.2d 871, 877, 288 P.3d 328 (2012).

¶44 Under the RLTA, landlords have an implied warranty of habitability to tenants. See RCW 59.18.060 ; Foisy v. Wyman, 83 Wash.2d 22, 28, 515 P.2d 160 (1973). This duty to keep the premises in habitable condition provides tenants with a negligence cause of action against landlords who fail to do so. See Lian v. Stalick, 106 Wash. App. 811, 818, 25 P.3d 467 (2001). But Restatement (Second) of Property § 17.6 (1977) states:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

(Emphasis added.) Arguably, the language of section 17.6 permits a tenant's guest to recover from a landlord directly for breach of an implied warranty of habitability, a statute, or a regulation. But, we recently held that Washington has only adopted section 17.6 in cases where a landlord's negligence is alleged by a tenant and that the section has not been adopted in the context of claims by nontenants. Phillips v. Greco, 7 Wash. App. 2d 1, 433 P.3d 509, 511 (2019). Therefore, Gerlach cannot base any duty owed by Cove upon section 17.6.

¶45 Here, Gerlach sued Cove for negligence, claiming it breached its implied and statutory warranty of habitability to Gerlach by failing to repair the rotted railing. Cove moved for partial summary judgment, arguing that Gerlach's negligence claim could not proceed because Gerlach was not a tenant and the implied and statutory warranty of habitability only applies to tenants under the RLTA. The trial court denied Cove's motion for summary judgment and instructed the jury on a landlord's duties under the RLTA. Because no Washington law has extended section 17.6 to apply to nontenants, the trial court erred by denying Cove's motion for summary judgment on this cause of action and instructing the jury that Cove could be liable to Gerlach for a violation of the RLTA. We hold that this cause of action cannot go forward on remand.

¶46 We reverse the jury verdict in favor of Gerlach and remand for retrial of Gerlach's negligence action against Cove.

WE CONCUR:

Andrus, J.

Schindler, J.

      Because Colin and Brodie Liddell have the same last name, this opinion refers to each by his first name.