Calibrte Property Management, Llc., Respondent V. Michael Nhye And Lacy Jolin, Appellants

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CALIBRATE PROPERTY
MANAGEMENT, LLC,
Respondent,
v.
MICHAEL NHYE & LACY JOLIN,
Appellants.
No. 73796-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: November 7, 2016
C
Trickey, A.C.J. — Michael Nhye and Lacy Jolin contend the trial court erred in
entering a judgment of unlawful detainer against them and denying their motion to vacate
the judgment and stay execution of the writ of restitution. At the show cause hearing,
Nhye entered 	into an agreed judgment while Jolin 	neither appeared 	nor presented
evidence refuting the landlord's claims. 	Nhye and Jolin fail to provide a basis for vacating
the judgment under CR 60(b) or for reviewing it on appeal. We find no error and affirm.
FACTS
The material facts are undisputed. 	On March 11, 2014, Michael Nhye and Lacy
Jolin 	entered 	into 	a lease agreement 	with 	Calibrate 	Property 	Management, 	LLC
(Calibrate) for the premises known as Marina Club Apartments, 2445 South 222nd Street,
Unit A304, Des Moines, Washington (the property).1 	The lease commenced on April 1,
2014 and expired on March 31, 2015. 	Under the lease, Nhye and Jolin were required to
pay $1,150 in rent and $95 for utilities each month.
In early 2015, Nhye was offered a new six-month lease, which included a new
rental rate. 	He declined the offer. 	After their current lease expired, Nhye and Jolin
1The lease agreement lists Olympic Management Company as the landlord; there appears to be
no dispute as to Calibrate's status as its successor-in-interest.

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continued in possession of the property without signing a new lease. 	They continued
paying the same amount of rent and utilities. 	On May 6, 2015, they were each served
with a 	10-day notice 	to 	comply with lease or quit premises for failure to pay the
outstanding amount of $870. 	This amount included a $200 month-to-month fee and a
$235 rental increase for the months of April and May, 2015. 	Nhye and Jolin did not pay
the additional amounts and remained in possession of the property.
Calibrate initiated 	an 	unlawful detainer action 	on 	May 22, 	2015, 	and filed a
complaint on June 3, 2015. Nhye and Jolin appeared pro se and answered the complaint,
asserting affirmative defenses of retaliatory eviction and discrimination. 	Nhye appeared
without Jolin at the show cause hearing on June 18, 2015; the trial court found her to be
in default.
At the hearing, the trial court requested Nhye to speak with an attorney from the
Housing Justice Project. 	The attorney negotiated with Calibrate on Nhye's behalf. 	Nhye
agreed to entry of the agreed findings of fact, conclusions of law, and judgment (the
judgment). The judgment stated that Nhye and Jolin were in unlawful detainer and owed
monthly rent and other fees totaling $2,455.00. 	It also imposed an additional $46.16 per
day for each day that they remained in possession after June 30, 2015. 	The judgment
also issued a writ of restitution but prohibited any physical eviction from taking place
before July 6, 2015.
On June 24, 2015, Nhye and Jolin filed a motion to vacate the judgment and to
stay the enforcement of the writ of restitution. In this motion they argued that the judgment
was invalid because they did not owe any back rent and Calibrate brought the action in
retaliation for complaints they filed with the City of Des Moines. 	They also claimed that

No. 73796-1-1/3
the judgment was void and unenforceable against Jolin because she was excluded from
any offer to renew the terms of the lease agreement.
On June 25, 2015, the trial court denied the motion to vacate the judgment. 	In its
oral ruling, the court found the following:
[Gjiven that you were present. Given that you signed the order. And
that that judgment was entered. I can find no fault with the entry of judgment
sufficient to vacate it. I am not, at this time, going to vacate it.
It's not that I don't understand your frustration or your concern. 	But,
the 	issue 	before 	me 	is 	whether 	or 	not 	that 	judgment 	was 	entered
appropriately, and I can find no fault.
You were informed. You were - 	you had an opportunity to speak to
counsel. 	The order was signed. You agreed to it. The Court's going to find
that the judgment stays in place.[2]
Nhye and Jolin appeal the trial court's order denying their motion to vacate the judgment
and stay the execution of the writ of restitution.
ANALYSIS
Motion to Vacate Judgment under CR 60(b)
Nhye and Jolin appeal the order denying their motion to vacate the judgment and
stay execution of the writ of restitution under CR 60(b)(4). They argue fraud, duress, lies,
and raise the affirmative defenses of insufficient notice, discrimination, and retaliation.
We review a decision on a motion to vacate a judgment for abuse of discretion.
State v. Santos. 104 Wn.2d 142, 145, 702 P.2d 1179 (1985); Mosbrucker v. Greenfield
Implement. Inc.. 54 Wn. App. 647, 651, 774 P.2d 1267 (1989). 	We also review the
decision whether to stay execution of a writ of restitution for abuse of discretion. 	CR
62(b). A trial court abuses its discretion if the decision is based on untenable grounds or
2Verbatim Report of Proceedings (VRP) at 7-8.
3

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for untenable reasons. 	Shaw v. City of Pes Moines. 109 Wn. App. 896, 900-01, 37 P.3d
1255 (2002). 	Unchallenged findings of fact are verities on appeal. 	Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 819, 828 P .2d 549 (1992). Unchallenged
conclusions of law become the law of the case. 	King Aircraft Sales. Inc. v. Lane. 68 Wn.
App. 706, 716-17, 846 P.2d 550 (1993).
CR 	60(b)(4) 	authorizes 	a 	trial court to 	vacate 	a 	judgment for "[fjraud . . .
misrepresentation, or other misconduct of an adverse party." 	"The party attacking a
judgment under CR 60(b)(4) 	must establish 	the fraud, 	misrepresentation, 	or 	other
misconduct by clear and convincing evidence." 	Lindgren v. Lindgren, 58 Wn. App. 588,
596, 794 P.2d 526 (1990). 	A party cannot assert an underlying cause of action for fraud
that does not relate to the procurement of the judgment. 	Lindgren, 58 Wn. App. at 596.
Rather, 	the 	"fraudulent conduct or 	misrepresentation 	must cause the entry of the
judgment such that the losing party was prevented from fully and fairly presenting its case
or defense." 	Lindgren, 58 Wn. App. at 596 (emphasis omitted).
Nhye and Jolin argue that the trial court erred when it denied their motion to vacate
the judgment because the judgment was 	obtained 	by fraud, 	misrepresentation, 	or
misconduct.3 They claim that Nhye's attorney induced him to sign and agree to entry of
the judgment "by virtue of duress, lies, and among other things."4 	Nhye and Jolin argue
that the trial court should have vacated the judgment because Nhye was coerced into
being represented by the Housing Justice Project. 	They argue that Nhye's attorney did
3 On appeal, Nhye and Jolin do not state specifically which subsection of CR 60(b) provides a
basis for vacating the judgment. In their motion before the trial court, they cite "CR 60(b)(4)(H)."
Clerk's Papers (CP) at 56. 	We therefore address their arguments under both CR 60(b)(4) and
(11).
4 Br. of Appellant at 5-6.
4

No. 73796-1-1/5
a poor job of representing him and lied in order to convince him to sign an agreement that
resulted in their eviction. 	Nhye and Jolin also claim that the trial court "overstepped its
bounds when it decided to assign an [ajttorney to [Nhye]."5
Nhye and Jolin neither address the elements of fraud 	nor do they identify the
precise nature of the alleged misconduct. 	Failure to prove any one of the nine stated
elements of fraud is fatal to recovery. 	Markov v. ABC Transfer & Storage Co.. 76 Wn.2d
388, 395,457 P.2d 535 (1969). Advising Nhye to enter into an agreed judgment is neither
unlawful nor does it even remotely suggest a fraudulent attempt to conspire with the
landlord. 	At the hearing on the motion to vacate, Nhye admitted that he did "know that
[he] was signing the order."6 Furthermore, there is no evidence in the record of any fraud,
misrepresentation, or misconduct committed by the opposing party, the trial court, or
Nhye's counsel. 	Nhye and John's conclusory allegations of fraud are without merit.
Nhye and Jolin also do not establish a basis for vacating the judgment under CR
60(b)(11). 	This catch-all subsection allows for a judgment to be vacated for "[a]ny other
reason justifying relief from the operation of the judgment." CR 60(b)(11). 	Application of
this provision is limited, however, to "'situations involving extraordinary circumstances not
covered by any other section of the rule.'" 	Barr v. MacGugan, 119 Wn. App. 43, 46, 78
P.3d 660 (2003) (internal quotation marks omitted) (quoting Gustafson v. Gustafson, 54
Wn. 	App. 	66, 75, 772 P.2d 	1031 	(1989)). 	Extraordinary 	circumstances 	involve
"'irregularities which are extraneous to the action of the court or go to the question ofthe
regularity of its proceedings.'" 	Tatham v. Rogers. 170 Wn. App. 76, 100, 283 P.3d 583
(2012) (internal quotation marks omitted) (quoting In re Marriage of Flannagan. 42 Wn.
5 Br. of Appellant at 24.
6 VRP at 7.

No. 73796-1-1/6
App. 214, 221, 709 P.2d 1247 (1985)). Errors of law do not justify vacating an order under
CR 60(b)(11). 	Union Bank, NA. v. Vanderhoek Assocs.. LLC. 191 Wn. App. 836, 843,
365 P.3d 223 (2015).
Nhye and Jolin argue that the judgment should be vacated because the trial court
"erred in ignoring the fact that [they] were being retaliated against," and "discriminated
against, even though they raised the issue in their Answer and Affirmative Defenses."7
Here, the trial court's consideration of their affirmative defenses is not an error that is
extraneous to the action or affects the regularity of the proceedings. 	See Burlingame v.
Consol. 	Mines 	& Smelting 	Co.. 	Ltd.. 	106 	Wn.2d 	328, 	336, 	722 	P.2d 	67 	(1986)
("[Insufficiency of the evidence is not an error that is extraneous to the action or affects
the 	regularity 	of 	the 	proceedings."). 	Nhye 	and 	Jolin 	have 	not 	shown 	that 	their
circumstances warrant relief under CR 60(b)(11). The trial court did not err when it denied
their motion to vacate the judgment and stay the writ of execution.
Direct Appeal of the Judgment
Nhye and Jolin also challenge the judgment on direct appeal, citing their affirmative
defenses of retaliatory eviction and discrimination.8 They argue that they were unfairly
targeted for rental denials, evictions, and increased charges based on their race and their
familial status. 	Nhye and Jolin also contend that Calibrate initiated this eviction action in
retaliation 	against 	them 	for 	filing 	complaints 	with 	the 	City 	of 	Des 	Moines' 	code
7 Br. of Appellant at 6-7.
8 Nhye and Jolin also raised their affirmative defenses as grounds for vacation of the judgment
under CR 60(b). 	These issues allege errors of law, which cannot be corrected by a motion to
vacate. The review of a decision on a motion to vacate is limited to the decision on the motion,
not the underlying judgment. 	Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533
(1980). 	The exclusive procedure to attack an allegedly defective judgment is by appealing the
judgment, not the order denying the motion to vacate. 	Biurstrom. 27 Wn. App. at 451.
6

No. 73796-1-1/7
enforcement office. 	In addition, Nhye and Jolin raise issues of insufficient notice and
waiver of right to bring an unlawful detainer action. According to them, the judgment was
improper because Calibrate failed to provide them with written notice of a rent increase,
in violation of the Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW. 	They
also argue that Calibrate waived its right to bring an eviction action by accepting their
payment within the notice period and later returning it.
While the judgment was entered against both Nhye and Jolin, they stand in
different procedural postures with regard to its appeal. 	Nhye attended the show cause
hearing and agreed to the judgment's entry. 	In contrast, the judgment was entered
against Jolin because she failed to attend the hearing or provide evidence that would
support a defense to nonpayment of rent. 	We therefore address each party's argument
separately.
Nhye seeks to appeal an agreed judgment.9 "A judgment by consentor stipulation
of the parties is construed as a contract between them embodying the terms of the
judgment. 	It excuses all prior errors and operates to end all controversy between the
parties, within the scope of the judgment." Wash. Asphalt Co. v. Harold Kaeser Co., 51
Wn.2d 89, 91, 316 P.2d 126 (1957). 	"In the absence of fraud, 	mistake, or want of
jurisdiction, a judgment by consent will not be reviewed on appeal." 	Wash. Asphalt, 51
Wn.2dat91.
9 Calibrate characterizes the judgment as a settlement agreement subjectto the provisions of CR
2A. "CR 2A applies only when (1) the agreementwas made by the parties or attorneys 'in respect
to the proceedings in a cause[,]' and (2) the purport of the agreement is disputed." In re Patterson,
93 Wn. App. 579, 582, 969 P.2d 1106 (1999) (alteration in original) (quoting In re Marriage of
Ferree. 71 Wn. App. 35, 39, 856 P.2d 706 (1993)). 	"The "purport" of an agreement is disputed
only when its existence or material terms are disputed.'" 	Patterson. 93 Wn. App. at 584 (quoting
Ferree, 71 Wn. App. at 40). 	Nhye and Jolin neither dispute that Nhye signed the judgment nor
do they dispute any of its terms. Rather, they argue that it should be vacated or reversed because
of fraud, coercion, and other misconduct.
7

No. 73796-1-1/8
Nhye and Jolin raise no issues regarding jurisdiction or mistake, only that the
judgment was obtained by fraudulent means. 	As discussed earlier, however, Nhye and
Jolin have provided no evidence to substantiate their fraud claims. 	Nor is there evidence
in the record to support their claims of retaliatory eviction or insufficient notice of the
action. 	But even with evidence, these defenses would not provide a basis for review of
an agreed judgment. 	Because he agreed to its entry and cannot show fraud, mistake, or
want of jurisdiction, Nhye cannot appeal the judgment.
Nhye and Jolin also argue that the trial court erred when it entered the judgment
against Jolin. The trial court found that Jolin "did not appear, and, thus, [was] in default."10
In an unlawful detainer action, a default judgment must be entered ifa party against whom
judgment is sought fails to appear and defend the suit against him. 	RCW 59.12.120.
Jolin, however, appeared in the action and answered the complaint. 	Therefore, the trial
court's conclusion that she was in default is incorrect.11
John's failure to appear at the show cause hearing, however, does impact our
review of the 	judgment with regards to 	her. 	Show cause 	hearings are summary
proceedings to determine the issue of possession pending a lawsuit. 	Meadow Park v.
Canlev, 54 Wn. App. 372, 374-75, 773 P.2d 875 (1989). "It is the landlord's burden in an
unlawful detainer action to prove, by a preponderance of the evidence, the right to
possession of the premises." Indigo Real Estate Servs.. Inc. v. Wadsworth, 169Wn.App.
412, 421, 280 P.3d 506 (2012). In this proceeding, "[t]he court shall examine the parties
and witnesses orally to ascertain the merits of the complaint and answer, and if it shall
10 CP at 48.
11 The trial court did not enter a default judgment against Jolin; the finding of default was
interlineated in the recitals portion of the judgment.
8

No. 73796-1-1/9
appear that the plaintiff has the right to be restored to possession of the property, the
court shall enter an order directing the issuance of a writ of restitution." RCW 59.18.380.
While the show cause hearing is not usually the final determination of the rights of
the parties, the court may grant to the landlord any other relief requested in the unlawful
detainer complaint—such as an order and judgment—if there is no substantial issue of
material fact affecting the landlord's right to that relief. 	RCW 59.18.380; Hartson P'ship
v. Goodwin, 99 Wn. App. 227, 231, 991 P.2d 1211 (2000). 	If the court finds "a genuine
issue of a material fact pertaining to a legal or equitable defense or set-off raised in the
defendant's answer, the court shall grant or deny so much of plaintiffs other relief sought
and so much of defendant's defenses or set-off claimed, as may be proper." 	RCW
59.18.380.
Here, by failing to attend the hearing, Jolin waived her opportunity to present
factual evidence to defeat Calibrate's claims and show that she had any legal justification
for not paying rent. 	We find no error in the trial court's entry of judgment of unlawful
detainer and issuing a writ of restitution against her. 	We affirm the judgment and order
denying the motion to vacate but remand for amendment of the judgment to remove the
finding of default against Jolin.
Attorney Fees and Costs
Calibrate asks this court for an award of its attorney fees and costs under RCW
59.18.290(2) and RAP 18.1 for having to defend a frivolous appeal. 	Under RAP 18.1, a
party on appeal is entitled to attorney fees where applicable law authorizes the award.

No. 73796-1-1/10
RCW 59.18.290 provides for an award of attorney fees to the prevailing party. The lease
also provides for attorney fees and costs to Calibrate in the event of a tenant's breach.
As the prevailing party, Calibrate is entitled to an award of attorney fees on appeal subject
to compliance with RAP 18.1.
Affirmed and remanded for amendment.
lrl<K*y 	j r^coWE CONCUR:
10