John Hawthorne v. Kristina Pomerleau
48745-4
| Wash. Ct. App. | Nov 14, 2017Background
- Landlord John Hawthorne served tenant Kristina Pomerleau a three-day notice to pay or vacate for unpaid rent; tenant did not pay or vacate and Hawthorne sued for unlawful detainer seeking restitution, damages, fees.
- At an initial show-cause hearing Hawthorne obtained judgment and a writ of restitution after Pomerleau did not appear.
- Pomerleau filed ex parte motions to stay execution of the writs, claiming improper service; a superior court commissioner granted stays and used a preprinted order waiving the bond requirement pending hearing.
- Hawthorne challenged the ex parte stays and bond waivers under RCW 59.18.390(1); at a later hearing the commissioner ordered re-service, and after further proceedings a writ was executed and Pomerleau evicted.
- Hawthorne appealed, arguing the commissioner erred by hearing the ex parte stay motions and waiving bond without notice and a hearing; he also sought appellate attorney fees under the lease.
Issues
| Issue | Plaintiff's Argument (Hawthorne) | Defendant's Argument (Pomerleau) | Held |
|---|---|---|---|
| Whether commissioner could hear ex parte motions to stay writ of restitution | Ex parte stays were improper; statute requires notice/hearing before bond can be waived | Commissioner allowed stays ex parte due to disputed service | Court held ex parte hearings and bond waivers violated RCW 59.18.390(1); commissioner erred |
| Whether bond may be waived pending hearing without notice to landlord | Bond must be posted before retaining possession/stay; waiver without notice is unlawful | Bond was waived by commissioner on preprinted form pending merits hearing | Court held waiver without notice/hearing violated statutory requirements |
| Mootness — whether appellate court should reach merits despite eviction | Case raises recurring public interest issues; appellate review appropriate | Eviction rendered case moot; no effective relief | Court exercised discretion to reach merits due to substantial public interest |
| Attorney fees on appeal entitlement | Lease entitles owner to fees for tenant default and supports appellate fees | Tenant opposed fees on appeal | Court awarded attorney fees on appeal to Hawthorne, subject to RAP 18.1 procedures |
Key Cases Cited
- In re Detention of M.W., 185 Wn.2d 633 (2016) (mootness standard and when courts may decide issues of continuing public interest)
- State v. Hunley, 175 Wn.2d 901 (2012) (factors for deciding whether to resolve moot issues of public importance)
- Hall v. Feigenbaum, 178 Wn. App. 811 (2014) (contractual fee provisions support appellate attorney fee awards)