Suk H. Kim & Emerald City Spa, Inc., Appellants V. Jung Ung Kim, Respondent

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

EMERALD CITY SPA, INC., a

)
Washington corporation, and ) No. 68831-6-I

SUK H. KIM, )
Appellants, ) DIVISION ONE S
) —_
v. ) UNPUBLISHED OPINION =
) _—
JUNG UNG KIM and SANG AE KIM, _ ) “
husband and wife, KWANG BAE KIM _ ) =
dba TEA & TAX MINISTRY, ) wo
) FILED: January 13, 2014 _
Respondents. ) ad

GRossE, J. — When, as here, the record contains no evidence of a prior

adjudication, a claim of res judicata cannot stand. Accordingly, we affirm.
FACTS

Suk H. Kim is an owner and officer of Emerald City Spa, Inc. Emerald City Spa
operates a day spa in Federal Way, Washington called the Palace Spa. Jung Ung Kim
entered into an agreement with Emerald City Spa that permitted Kim’ to operate a food
service inside Palace Spa. By its own terms, the agreement was to expire on
September 30, 2010 unless Kim properly exercised an extension option. Emerald City
Spa claimed that Kim did not properly exercise the extension option and denied Kim
access to the spa after September 30, 2010.

On October 6, 2010, Kim filed a small claims lawsuit in King County District Court

against Emerald City Spa (Claim 1). The claim alleged “unlawful eviction, changed the

‘To avoid confusion, we refer to Jung Ung Kim as “Kim,” and Suk H. Kim and Emerald
City Spa collectively as “Emerald City Spa.”

Z1V1S
LYNOd

IHSVM 30
Vidd¥ 40

4

ga +

No. 68831-6-1/2
lock, claiming plaintiff's gross sales in the amount of $5,000 for the month of October
2010." A trial date was set for November 22, 2010.
On 	November 16, 	2010, 	Kim filed a 	second small claims lawsuit (Claim 2),
alleging the same facts and asserting the same claim as the first lawsuit, but seeking
additional damages for lost sales for the month of November 2010. 	Trial was set for
January 3, 2011. At the hearing on January 3, 2011, the district court awarded to Kim a
judgment of $5,000. 	Emerald City Spa appealed and the King County Superior Court
reversed, concluding that Kim did not properly execute the extension because the lease
was not properly notarized.
On January 24, 2011, Kim filed a third small claims lawsuit (Claim 3), alleging the
same facts and claims as the second case, seeking an additional $5,000 in damages for
lost sales in the month of December 2010. 	Following the appeal of the second case,
the district court apparently dismissed all three cases on the merits.2
On August 23, 2011, Kim filed a fourth small claims lawsuit (Claim 4), alleging
the same grounds for relief as in the third case, i.e., "Defendant suddenly changed the
door lock and evict [sic] Plaintiff," and claiming "plaintiff's equipments and perishable
food and sauces held by defendants." A trial date was set for November 21, 2011.
On December 2, 2011, Kim filed a fifth small claims suit (Claim 5). 	This claim
alleged identical grounds for relief as claimed in Claim 4, i.e., "Defendant suddenly
changed 	the door lock and 	evict [sic] 	Plaintiff. 	Claiming 	plaintiffs equipments and
perishable food and sauces held by defendants." 	A trial date was set for January 30,
2 There are no dismissal orders in the record; Emerald City Spa cites to the transcript of
the hearing on the fifth claim, during which the court acknowledged that it dismissed the
prior claims based on breach of the lease after Emerald City Spa prevailed on its appeal
to the superior court.
2

No. 68831-6-1/3
2012.
Meanwhile, 	on 	January 26, 	2012, 	Emerald 	City Spa sought an 	injunction 	in
superior court prohibiting 	Kim from 	filing further small claims suits in district court,
asserting that the claims were barred by res judicata.
On January 30, 2012, Claim 5 came on for a hearing in the district court. The
district court awarded judgment of $5,000 to Kim. The court found:
Plaintiffs claim was for equipment and perishable foods that were in the
custody of the 	Defendant and 	not 	returned 	to 	Plaintiff at 	the end 	of
Plaintiffs lease. Plaintiff also claims $3,000 deposit owed to him. 	Plaintiff
offered sufficient proof to establish his claim by a preponderance of the
evidence.
Emerald City Spa appealed to the superior court, contending that the claim was barred
by res judicata, asserting that the other four claims that asserted identical grounds for
relief were dismissed.
On February 27, 2012, Emerald City Spa brought a motion for a default judgment
on the injunction matter because Kim failed to answer the complaint. 	Kim did not
appear at the hearing and the superior court entered a default order based on Kim's
failure to respond. 	The court then entered judgment for Emerald City Spa on the
injunction, ordering that Kim was permanently enjoined "from filing further small claims
lawsuits arising out of the same facts as alleged in King County District Court cause
numbers: 104-2772 [Claim 1], 104-3142 [Claim 2], 114-1738 [Claim 3], 114-3427 [Claim
4] and 114-4180 [Claim 5]."
On May 1, 2012, the superior court ruled on Emerald City Spa's appeal of Claim
5. The superior court modified the district court's judgment as follows:
1. 	The lease at issue essentially expired 9-30-10.
2. The current claim 	by Respondent for return of equipment and for

No. 68831-6-1/4
reimbursement for lost food differs from prior claims for loss of gross
sales. This current claim is therefore not barred.
3. 	For 	the 	record, 	the 	retained 	equipment 	value 	is 	$2,510.00 	and
judgment therefore is for Respondent. Judgment for non-perishable
foodstuffs @ $2,752 is properly awarded as the first claim specifying
food was approx. 1 year after the lease expired.
Emerald 	City 	Spa 	moved 	for 	discretionary 	review 	of 	this 	decision. 	A
commissioner ordered that the motion for discretionary review be treated as a notice of
appeal in this court, as appeals of small claims are a trial de novo in superior court and
are therefore appealable as of right.
ANALYSIS
Emerald City Spa contends that Claim 5 was barred by res judicata because it
alleged identical grounds for relief and claimed identical damages as Claim 4, which
was dismissed for Kim's failure to appear. 	Kim has not filed a response to Emerald City
Spa's appeal.
If the facts were such as Emerald City Spa asserts, res judicata would operate to
bar Claim 5.3 	But while Emerald City Spa asserts that Claim 4 was in fact dismissed,
the record does not contain a dismissal order or any evidence of an adjudication of that
claim.4 	The record simply indicates that the claim was filed and a trial date was set for
November 21, 2011. 	Thus, we have no way of knowing whether there was a final
judgment on the merits on Claim 4 that had res judicata effect. Accordingly, without any
record of the dismissal, there is no support for the res judicata claim.
3 Hilltop Terrace Homeowner's Ass'n v. Island County. 126 Wn.2d 22, 31, 891 P.2d 29
(1995) ("Resurrecting the same claim in a subsequent action is barred by res judicata.").
4 Emerald City Spa simply cites to its brief in its appeal to the superior court and its
motion in support of the injunction.
4

No. 68831-6-1 /5

We affirm.

WE CONCUR: