613 FAIRVIEW AVE., L.L.C., a Washington Limited Liability Company, Respondent v. PONGS CORPORATION, INC., a Washington corporation, Appellant.

No. 46109-5-I.The Court of Appeals of Washington, Division One.
Filed: April 23, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County, No. 99-2-24204-1, Hon. Suzanne M. Barnett, February 10, 2000, Judgment or order under review.

Counsel for Appellant(s), Dan R. Young, Law Offices of Dan R. Young, 1000 2nd Ave Ste 3310, Seattle, WA 98104.

Counsel for Respondent(s), Paul E. Brain, Tousley Brain, 2722 E Main St, Puyallup, WA 98372.

Michael J. Layton, Short Cressman Burgess, 999 3rd Ave Ste 3000, Seattle, WA 98104-4088.

PER CURIAM.

This is an appeal of an attorney fee award in an action between landlord Pongs Corporation (Pongs) and tenant 613 Fairview Avenue (Fairview). The trial court found that Fairview was the prevailing party and awarded it the full amount of attorney fees it requested. We reject Pongs’ argument that it was entitled to offset attorney fees it expended in defending Fairview’s forcible detainer claim. Fairview concedes that awarding it $1,595.39 in costs was improper. We affirm the award of attorney fees except to the extent it includes an award of costs and remand for entry of an amended attorney fee award.

Facts[1]
Pongs owns a commercial building in Seattle. Fairview and Pongs entered into a ten year lease for the premises with five year options to extend the lease. Fairview began paying rent on July 15, 1998 and continued to pay rent or attempt to pay rent through trial. Fairview initiated the process of making improvements to the property. In August 1999, Pongs chained one of the entrances to the parking lot and boarded an entrance to the premises. At the same time, Pongs informed Fairview that the lease agreement was a month-to-month lease because neither party had acknowledged their signatures on the final version of the lease and informed Fairview it was not to make any improvements to the premises. In October 1999, Pongs served Fairview with a 30-day notice to terminate the tenancy.

Fairview demanded possession of the premises. When more than five days passed, Fairview filed a forcible detainer action against Pongs. Fairview sought restitution of the premises, judgment for forcible detainer, and damages.

Pongs answered, responding that the lease was invalid and that Fairview was a month-to-month tenant. Pongs also counterclaimed for unlawful detainer, seeking return of the premises, judgment for unlawful detainer, and damages.

The trial court found that although the parties’ signatures on the final version of the lease were not acknowledged, the lease was valid and enforceable based on sufficient performance. As a result, Pongs’ termination of the lease was ineffective. The court dismissed Pongs’ unlawful detainer claim. The court also found that Fairview had failed to prove forcible detainer because access to the premises was not denied or prohibited.[2] The court dismissed Fairview’s forcible detainer claim. The court found that the `seminal issue’ was whether there was a valid and enforceable lease between the parties and entered a declaratory judgment for Fairview. Fairview sought attorney fees and costs as the prevailing party. Pongs also sought attorney fees, arguing it was entitled to offset its fees against Fairview’s fees, or alternatively that neither party was entitled to attorney fees because each party prevailed on a major issue. The court concluded that Fairview was the prevailing party `on the declaratory issue of the existence of a written lease’ and entitled to attorney fees. The court awarded Fairview all its attorney fees, totaling $29,147.39. Pongs appeals the attorney fee award. Attorney Fees for Trial

At issue in this case is whether the trial court erred in determining that Fairview was the prevailing party and as such entitled to all its attorney fees. Pongs contends that its counterclaim for unlawful detainer was distinct and severable from Fairview’s claim for forcible detainer and that under Marassi v. Lau, 71 Wn. App. 912, 859 P.2d 605 (1993), Pongs is entitled to offset its fees expended in successfully defending Fairview’s forcible detainer claim against Fairview’s fees expended in successfully defending Pongs’ unlawful detainer counterclaim. Pongs also contends that under Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632 (1998), Fairview was not entitled to attorney fees expended in pursuing its unsuccessful claim for forcible detainer. Fairview responds that as the substantially prevailing party, it was entitled to all its attorney fees.

The rules in Washington regarding an award of attorney fees are well established, but their application is not always straightforward. Under RCW 4.84.330, a prevailing party in a contract action is entitled to attorney fees and costs when the contract authorizes such an award. In general, a prevailing party is one who obtains a judgment in his or her favor. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997); Eagle Point Condominium Owners Assoc. v. Coy, 102 Wn. App. 697, 706, 9 P.3d 898 (2000). If neither party wholly prevails, then the party who substantially prevails is the prevailing party, a determination that turns on the extent of relief afforded the parties. Riss, 131 Wn.2d at 633-34. If both parties prevail on major issues, an attorney fee award is not appropriate. American Nursery Prods. v. Indian Wells Orchards, 115 Wn.2d 217, 235, 797 P.2d 477 (1990).

In instances where each party has prevailed on distinct claims, the plaintiff should be awarded attorney fees for the claims it prevails on and the defendant should be awarded attorney fees for the claims it successfully defends, and the awards should then be offset. Marassi, 71 Wn. App. at 918; Mike’s Painting, Inc. v. Carter Welsh, Inc., 95 Wn. App. 64, 69, 975 P.2d 532 (1999). This `proportionality approach is appropriate in all contract and lease cases where multiple distinct and severable claims are at issue.’ Int’l Raceway, Inc. v. JDFJ Corp., 97 Wn. App. 1, 9, 970 P.2d 343 (1999).

The issue in this case, then, turns on the relationship between Fairview’s forcible detainer claim and Pongs’ unlawful detainer counterclaim. The key issue in Fairview’s forcible detainer claim was whether it had been forcibly removed from the property by Pongs. Lees v. Wardall, 16 Wn. App. 233, 236, 554 P.2d 1076 (1976). The trial court resolved this question against Fairview. The key issue in Pongs’ counterclaim for unlawful detainer was the right to possession, which turned on enforceability of the lease. Puget Sound Inv. Group, 92 Wn. App. 523, 526, 963 P.2d 944 (1998).

The court resolved this question against Pongs. Generally, determination of which party prevailed is reviewed closely on appeal and involves a mixed question of law and fact. See Eagle Point Condominium Owners, 102 Wn. App. at 706. Theoretically an unlawful detainer claim may be distinct and severable from a forcible detainer claim, but in this case the trial court concluded that as tried, the claims were not distinct and severable. Pongs has not assigned error to the trial court’s conclusion that the seminal issue at trial was the existence of a valid and enforceable lease between the parties. The trial court was in a better position to evaluate whether the claims were distinct and severable.

This is particularly true here, where Pongs did not provide this court with a verbatim transcript of trial. As the substantially prevailing party, Fairview was entitled to an award of its attorney fees. Riss, 131 Wn.2d at 633-34. Findings of fact and conclusions of law in support of an award of attorney fees are required. Mahler, 135 Wn.2d at 435; Int’l Raceway, 97 Wn. App. at 9. The trial court must provide an adequate record on which to review a fee award. Mahler, 135 Wn.2d at 435; Estrada, 98 Wn. App. 717, 723, 988 P.2d 492 (1999). In some instances we have been required to remand for entry of findings and conclusions in support of an attorney fee award. Mahler, 135 Wn.2d at 433; Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 150, 859 P.2d 1210 (1993). Because Pongs did not challenge the reasonableness of the attorney fees at trial or on appeal, remand is unnecessary.

Trial Costs Pongs contends that the trial court improperly included $1,595.39 costs in the award of attorney fees to Fairview. Under RCW 4.84.010, an award of costs is limited to a narrow range of expenses. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 743, 733 P.2d 208 (1987). Fairview concedes that the judgment should be reduced by $1,595.39. Attorney Fees on Appeal As the substantially prevailing party on appeal, Fairview is entitled to an award of reasonable attorney fees for the appeal. Marassi, 71 Wn. App. at 919.

We affirm the award of attorney fees except to the extent it includes an award of costs and remand for entry of an amended attorney fee award.

[1] Neither party challenges the trial court’s findings of fact.
[2] The court found that Fairview continued to have access through a door off the adjacent alley.