FILED JULY 23, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DAVID R. BILISKE, ) No. 39666-5-III Landlord/Landowner, ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MARC A. ANDERSON; CHEYENNA M. ) ANDERSON; and any other occupants, ) ) Respondents. )
PENNELL, J. — Marc and Cheyenna Anderson appeal from orders directing
issuance of a writ of restitution and denying their request for a stay. We affirm.
BACKGROUND
Marc and Cheyenna Anderson rented a residential property from David Biliske
on a month-to-month basis. 1 In November 2022, Mr. Biliske served the Andersons with
a 120-day notice of termination of their tenancy, “due to . . . impending substantial
rehabilitation of the premises” pursuant to RCW 59.18.200(2)(c)(i). Clerk’s Papers (CP)
at 28. Mr. Biliske’s notice did not provide any details about his planned rehabilitation.
1 The Andersons assert that the property was also used as a farm. However, they cite to no authority indicating that this changes the legal analysis. No. 39666-5-III Biliske v. Anderson
The Andersons failed to vacate the premises within 120 days and in March 2023
Mr. Biliske initiated an action in superior court for eviction, citing RCW 59.18.200(2)(c).
The verified complaint listed the various renovations Mr. Biliske had planned for the
property, including replacing the front porch rail and spindles, replacing the kitchen floor,
replacing the well casing, and making repairs to the well pump and water lines. CP at 8.
Mr. Biliske requested a writ of restitution restoring him to possession of the property,
recovery for any damages sustained to the property during the holdover tenancy, and an
award of attorney fees and costs.
Mr. Biliske also moved for order to show cause as to why a writ of restitution
should not be immediately issued. A show cause hearing was scheduled for April 18,
2023.
In the week leading up to the show cause hearing, the Andersons answered the
complaint and asserted affirmative defenses, counterclaims, and setoffs. The Andersons
claimed the 120-day notice of termination of tenancy was defective and that repairs to the
premises had either already taken place or did not require displacement. The Andersons
also averred that they had expended their own funds to repair the hot water heater and
flooring, and to mitigate a rodent infestation. Id. at 61-62. No mention was made to the
kitchen flooring, well casing, or water lines issues.
2 No. 39666-5-III Biliske v. Anderson
The show cause hearing took place as scheduled. Both parties appeared with
counsel. During the hearing, Mr. Biliske’s attorney provided the court with a building
permit dated December 15, 2022. Attached to the permit was a project plan that described
work to be performed in the kitchen, including replacing rotten floor joists and floor
underlayment. Id. at 83. During the hearing, Mr. Biliske’s attorney represented that,
despite what was stated in the complaint, his client was “not asking . . . for an affirmative
money judgment.” Rep. of Proc. (RP) (Apr. 18, 2023) at 5.
Counsel for the Andersons argued Mr. Biliske was not entitled to a writ of
restitution for several reasons. Relevant to this appeal, the Andersons claimed the 120-day
notice was defective. In addition, the Andersons argued that the repairs identified in the
complaint had “been ameliorated” and did not require “displacement.” Id. at 12-13.
Counsel for the Andersons did not offer any evidence in support of their position and
did not ask the court to consider any testimony.
The trial court granted Mr. Biliske’s motion for a writ of restitution. The court’s
written order explained the Andersons’ answer “did not raise issues assertible in an
Unlawful Detainer Action sufficient to justify delay [in] entry of a Writ of Restitution.”
CP at 74. The court determined the Andersons were in unlawful detainer and ordered a
writ of restitution, authorizing the sheriff to restore Mr. Biliske to possession of the
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property. The writ of restitution and notice from the sheriff’s office were delivered to
the Andersons that evening. Id. at 98.
On April 24, 2023, the Andersons filed an ex parte motion for a stay pending
reconsideration. Each of the Andersons submitted a declaration in support of the motion.
They declared they were willing to post a bond pending trial. They also asserted Mr.
Biliske’s purported reasons for terminating the tenancy were pretextual, as he really
wanted “to rent the property for more money or to sell it.” Id. at 98, 123. They added that
the repair estimate attached to Mr. Biliske’s December 2022 work permit was from a
nonexistent contracting company. See id. at 99, 124.
At the time the Andersons moved for reconsideration, the presiding judge was
away at a judicial conference. As a result, no immediate action was taken on the motion.
The writ of restitution was then executed on the morning of April 27, 2023. See id. at 158.
The court held a hearing on the motion for reconsideration several hours after
execution of the writ of restitution. See id. at 161. During the hearing, the court noted that
it’s the landlord’s “call”—not the tenants’—to determine whether a property is in need
of rehabilitation. RP (Apr. 27, 2023) at 50. The court reasoned the fact that the tenant
disagrees as to the necessity of any repairs “is not a genuine issue of material fact.” Id.
The court subsequently issued an order denying the request for a stay. The court
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explained that “[a]t entry of the Order for Writ and issuance of the Writ on April 18,
2023, this Court found no genuine issue of material fact to exist.” CP at 169. The court
wrote that “[e]ntry of the Order for Writ and issuance of the Writ terminated proceedings
and therefore there were no issues to be decided at a trial.” Id. The court then ruled that
the order for writ of restitution and writ of restitution were final orders for purposes of
RAP 2.2.
The Andersons filed notices of appeal.
THE UNLAWFUL DETAINER PROCESS
An unlawful detainer action is a statutory proceeding that provides landlords an
expedited process for resolving disputes over possession of leased property and related
issues such as restitution and rent. 4105 1st Ave. S. Invs., LLC v. Green Depot Wash.
Pac. Coast, LLC, 179 Wn. App. 777, 785, 321 P.3d 254 (2014). Washington’s unlawful
detainer process is set forth in chapter 59.12 RCW and the Residential Landlord-Tenant
Act of 1973 (RLTA), chapter 59.18 RCW. Because chapter 59.12 RCW and the RLTA
“are statutes in derogation of the common law,” they are “strictly construed in favor of
the tenant.” Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 156, 437 P.3d
677 (2019).
5 No. 39666-5-III Biliske v. Anderson
Before initiating an unlawful detainer action, a residential landlord must first
issue a notice to terminate the tenancy. See RCW 59.18.650(6)(a). Permissible grounds
for termination of a residential tenancy are set forth in RCW 59.18.650(2). Relevant
here, one such ground is when “[t]he tenant continues in possession of the premises
after the landlord serves the tenant with advance written notice pursuant to
RCW 59.18.200(2)(c).” RCW 59.18.650(2)(f). Under RCW 59.18.200(2)(c)(i), a
landlord must provide a 120-day notice of termination of tenancy “[w]henever a
landlord plans to demolish or substantially rehabilitate [the] premises.” “‘Substantially
rehabilitate’ means extensive structural repair or extensive remodeling of premises that
requires a permit such as a building, electrical, plumbing, or mechanical permit, and that
results in the displacement of an existing tenant.” RCW 59.18.200(2)(c)(ii)(D).
If a tenant remains in possession of the premises in violation of the terms of the
landlord’s notice, the landlord may initiate the unlawful detainer action. See Randy
Reynolds, 193 Wn.2d at 156. To physically 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.”
Id. at 157. A writ of restitution may be issued by the trial court after a preliminary show
cause hearing. See RCW 59.18.370, .380.
6 No. 39666-5-III Biliske v. Anderson
A trial court’s decision to issue a writ of restitution at the conclusion of a show
cause hearing does not constitute a final adjudication of the parties’ case. Kiemle &
Hagood Co. v. Daniels, 26 Wn. App. 2d 199, 211-12, 528 P.3d 834 (2023). Trial may still
be required. See Webster v. Litz, 18 Wn. App. 2d 248, 256, 491 P.3d 171 (2021).
But similar to a summary judgment proceeding, a court conducting a show cause hearing
may issue a final judgment in lieu of trial if “there is no substantial issue of material fact.”
RCW 59.18.380.
ANALYSIS
The Andersons challenge the trial court’s rulings, arguing: (1) the 120-day notice
to vacate was defective, (2) the trial court mishandled the show cause hearing, (3) the
matter should have been set for trial, and (4) the trial court erroneously refused to issue
an order staying the writ of restitution. Each argument is addressed in turn.
1. Sufficiency of the 120-day notice
The Andersons contend Mr. Biliske’s 120-day notice was deficient because it
failed to describe what type of rehabilitation was planned for the property. A challenge
to the adequacy of notice presents a mixed question of law and fact, reviewed de novo.
Daniels, 26 Wn. App. 2d at 215.
7 No. 39666-5-III Biliske v. Anderson
“Washington courts require landlords to strictly comply with timing and manner
requirements of notice. . . . But when it comes to form and content, substantial
compliance is sufficient.” Id. at 215 (internal citation omitted). In terms of substance,
RCW 59.18.650(6)(b) requires that a notice to vacate “[i]dentify the facts and
circumstances known and available to the landlord at the time of the issuance of the
notice that support the cause or causes with enough specificity so as to enable the tenant
to respond and prepare a defense to any incidents alleged.” This provision “requires
landlords to provide sufficient facts to provide the tenant a meaningful opportunity”
to respond to the landlord’s case for eviction, “but not more.” Garrand v. Cornett,
__ Wn. App. 2d __, 550 P.3d 64, 70-71 (2024).
The notice here stated Mr. Biliske sought to terminate the Andersons’ tenancy
because he planned “substantial[] rehabilitat[ion] [of the] premises” pursuant to
RCW 59.18.200(2)(c)(i). The Andersons claim this notice was deficient because it did not
supply details that would have allowed them to “seek to rehabilitate the conditions on
[their] own at [their] own expense.” Appellants’ Opening Br. at 16. They also argue that
details were necessary to allow them to show that “rehabilitation was no longer needed.”
Id. at 16-17.
The Andersons’ criticisms fail because they are based on a misunderstanding of
8 No. 39666-5-III Biliske v. Anderson
the applicable statue. Under RCW 59.18.200(2)(c) it is the “landlord” that has the right
to make “plans” to rehabilitate their property. Nothing in the statute allows a tenant to
thwart the landlord’s plans by conducting repairs themselves. Furthermore, there is no
requirement under RCW 59.18.200(2)(c) that a landlord’s planned renovations must
be necessary. The reasons for the rehabilitation are the prerogative of the landlord as
the property owner and it is no defense to termination of the tenancy that the planned
rehabilitation is not “needed.” Appellants’ Opening Br. at 16-17.
The Andersons are not entitled to relief based on insufficiency of notice.
2. The show cause hearing
The Andersons argue the trial court violated the requirements of a show cause
hearing set forth in RCW 59.18.380 when it issued a writ of restitution without first
taking any testimony or requiring evidence to support the grounds for eviction. Because
the show cause process is governed by statute, this is a legal argument reviewed de novo.
See Country Manor MHC, LLC v. Doe, 176 Wn. App. 601, 608, 308 P.3d 818 (2013).
At a show cause hearing, the court may grant a landlord a writ of restitution “if
it shall appear” that they have “the right to be restored to possession of the property.”
RCW 59.18.380. A trial court has considerable leeway in conducting a show cause
hearing. See Country Manor, 176 Wn. App. at 612. But there are some fundamental
9 No. 39666-5-III Biliske v. Anderson
ground rules. The court must require the landlord to produce evidence justifying its stated
basis for eviction. See Hernandez v. France, 29 Wn. App. 2d 777, 784-85, 544 P.3d 518
(2024). And, when it comes to assessing a tenant’s defenses, the trial court must engage
in a two-step process:
(1) the trial court must ascertain whether either the defendant’s written or oral presentations potentially establish a viable legal or equitable defense to the entry of a writ of restitution; and (2) the trial court must then consider sufficient admissible evidence (including testimonial evidence) from parties and witnesses to determine the merits of any viable asserted defenses.
Leda v. Whisnand, 150 Wn. App. 69, 83, 207 P.3d 468 (2009).
Here, during the parties’ show cause hearing, Mr. Biliske presented evidence
justifying the stated basis for terminating the tenancy. Through the verified complaint
and supporting documents, Mr. Biliske demonstrated that he owned the property; the
Andersons were month-to-month-tenants; the Andersons had been served with a
120-day notice; and there were plans to substantially renovate the property. In his
verified complaint, Mr. Biliske explained that the property’s well casing needed to
be replaced and the water lines repaired. Mr. Biliske’s building permit documentation
indicated he planned to repair rotting floor joists and floor underlayment. The trial court
observed that these are the types of repairs that can justify tenant displacement under
RCW 59.18.200(2)(c).
10 No. 39666-5-III Biliske v. Anderson
The Andersons argue that Mr. Biliske’s evidence should have been introduced
through testimony. We are unpersuaded. At the time of the show cause hearing, the
Andersons, who were represented by counsel, did not object to Mr. Biliske’s evidence. 2
Any objection to the evidence was therefore waived. See RAP 2.5(a); see also Hernandez,
29 Wn. App. 2d at 786-87 (declining to review unpreserved objection to evidence
proffered at a show cause hearing).
The Andersons complain that the trial court never elicited testimony from them
regarding defenses to eviction. But during the show cause hearing, the Andersons never
requested an opportunity to present any testimony. And more importantly, they failed to
articulate a potentially viable defense to Mr. Biliske’s unlawful detainer complaint. In
their answer to the complaint, the Andersons alleged they were entitled to reimbursement
for self-help repairs. 3 But this argument did not pertain to the question of who was
entitled to possession of the premises. It therefore fell outside the realm of an unlawful
detainer action and could not constitute a viable defense. See Young v. Riley, 59 Wn.2d
2 The Andersons cite to a passing concern about the nature of Mr. Biliske’s evidence that their counsel belatedly expressed at the hearing on their motion for a stay pending reconsideration. See RP (Apr. 27, 2023) at 48-49. This was insufficient to preserve an objection. 3 As previously noted, Mr. Biliske outlined planned rehabilitation work distinct from the Andersons’ purported self-help repairs.
11 No. 39666-5-III Biliske v. Anderson
50, 52, 365 P.2d 769 (1961); Munden v. Hazelrigg, 105 Wn.2d 39, 45, 711 P.2d 295
(1985). 4 Because the Andersons failed to raise a viable defense in their answer to
Mr. Biliske’s unlawful detainer complaint, the trial court was not required to take
any additional evidentiary steps. See Leda, 150 Wn. App. at 83.
The trial court’s show cause hearing met the fundamental requirements of
RCW 59.18.380. The Andersons therefore are not entitled to relief based on an
inadequate show cause hearing.
3. Necessity of trial
The Andersons argue that even if Mr. Biliske was entitled to a writ of restitution at
the close of the show cause hearing, the matter still should have been set for trial. There is
a distinction between a trial court’s grant of immediate possession pending trial and the
ultimate right to possession. Daniels, 26 Wn. App. 2d at 212. Just because a landlord
succeeds in securing a writ of restitution at a show cause hearing does not necessarily
mean the matter is final or that the tenant is not entitled to a trial. See Randy Reynolds,
193 Wn.2d at 157. Rather, the availability of trial turns on whether there is “a genuine
issue of material fact” pertaining to a landlord’s right to possession or a tenant’s defense.
4 During the trial court process, the Andersons also made mention of an oral contract to sell the premises and a claim of retaliatory eviction. However, those issues are not mentioned on appeal and therefore do not merit discussion by our court.
12 No. 39666-5-III Biliske v. Anderson
RCW 59.18.380. This is akin to the summary judgment standard. See Faciszewski v.
Brown, 187 Wn.2d 308, 315 n.4, 386 P.3d 711 (2016). Our review is therefore de novo.
Daniels, 26 Wn. App. 2d at 218-19. 5
Here, the facts presented to the trial court at the time of the show cause hearing
failed to demonstrate a material issue of fact for trial. As previously noted, Mr. Biliske
presented uncontested evidence that he owned the property, that the Andersons were
month-to-month tenants, that he served them with a 120-day notice, and that he had plans
to substantially rehabilitate the property. Although there was a request for damages
and attorney fees in Mr. Biliske’s unlawful detainer complaint, his attorney disclaimed
a request for a money judgment at the time of the show cause hearing.
The Andersons challenge the sufficiency of the foregoing facts, arguing
Mr. Biliske failed to show his planned renovations met the criteria for a substantial
rehabilitation under RCW 59.18.200(2)(c). We are unpersuaded. The governing statute
defines substantial rehabilitation as an “extensive structural repair or extensive
5 Division Two of this court has stated we review a trial court’s decision on whether to order a trial in this context for abuse of discretion. See Tedford v. Guy, 13 Wn. App. 2d 1, 16, 462 P.3d 869 (2020). This determination is not binding on us. See In re Pers. Restraint of Arnold, 190 Wn.2d 136, 154, 410 P.3d 1133 (2018). Our court has previously determined that, given the language set forth in RCW 59.18.380, “something close to de novo review should apply.” Daniels, 26 Wn. App. 2d at 218-19.
13 No. 39666-5-III Biliske v. Anderson
remodeling” that would require a “permit” and result in “displacement of an existing
tenant.” RCW 59.18.200(2)(c)(ii)(D). Mr. Biliske’s evidence met these criteria.
According to the evidence, Mr. Biliske planned to replace floor structures and plumbing.
It is self-evident that this type of work is extensive. In addition, it is the type of work that
would reasonably displace a tenant given that it implicates a landlord’s duty to provide
habitable premises. See RCW 59.18.060(2) (requiring usable floors); RCW 59.18.060(8)
(requiring working plumbing); RCW 59.18.060(11) (requiring adequate water and hot
water). Mr. Biliske produced a “residential remodel permit” in support of his planned
renovation. See CP at 81. Given all these circumstances, the statutory criteria for
termination of tenancy based on substantial rehabilitation were met. While the
Andersons might have been willing to occupy the premises during Mr. Biliske’s
repairs, their subjective willingness is irrelevant to a termination of tenancy under
RCW 59.18.200(2)(c). See RCW 59.18.200(2)(c)(i), (ii) (allowing a landlord to notify
tenants of the need to vacate if the “landlord plans” to engage in renovations which
require the tenant’s “displacement”).
The evidence produced at the show cause hearing demonstrated that there were no
outstanding issues of material fact; thus, the court was not required to set the matter for
trial. See Tedford v. Guy, 13 Wn. App. 2d 1, 16-17, 462 P.3d 869 (2020). Technically
14 No. 39666-5-III Biliske v. Anderson
speaking, the trial court should have formally issued a final judgment in addition to the
writ of restitution. See Hernandez, 29 Wn. App. 2d at 784. Doing so would have left
no doubt that the Andersons’ appeal was as a matter of right. See id. But the trial court
did expressly state its intent that the writ of restitution be considered a final ruling. See
CP at 169. We will treat a writ of restitution as a final judgment if issuance of the writ
has the effect of discontinuing the parties’ dispute. See Hernandez, 29 Wn. App. 2d at
784 (citing RAP 2.2(a)(3)). Thus, we find no error in the trial court’s decision not to set
this matter for trial.
4. Denial of stay
The Andersons argue the trial court erred when it failed to stay the writ of
restitution. According to the trial court, it lacked authority to grant relief because the writ
had already been executed. This ruling was likely erroneous. See RCW 59.12.220
(allowing displaced tenants to post an appellate bond restoring them to “possession of the
premises” during the pendency of appeal). Nevertheless, because the Andersons have not
prevailed in their other arguments on appeal, this issue is moot and requires no further
discussion. See In re Marriage of Laidlaw, 2 Wn. App. 2d 381, 393-94, 409 P.3d 1184
(2018).
15 No. 39666-5-III Biliske v. Anderson
ATTORNEY FEES
Both parties request an award of reasonable attorney fees and costs on appeal
under RCW 59.18.290. Under this statute, a court “may” award attorney fees to the
“prevailing party” in an unlawful detainer action. RCW 59.18.290(1), (2). Here,
the Andersons have not prevailed and therefore are not entitled to fees. Mr. Biliske
is the prevailing party. Because the Andersons have not raised any viable defenses to
Mr. Biliske’s unlawful detainer action, we exercise our discretion to grant his request
for reasonable attorney fees and costs, subject to timely compliance with RAP 18.1(d).
CONCLUSION
The trial court’s disposition is affirmed. Mr. Biliske’s request for reasonable
attorney fees is granted.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Pennell, J.
I CONCUR: I CONCUR AS TO RESULT ONLY:
______________________________ _________________________________ Lawrence-Berrey, C.J. Fearing, J.