       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                             (Ac,
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CHRISTINE A. TOLMAN,                                                           2:p6
                                               No. 75141-7-1
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KEITH S. JOHNSON; COLONIAL PARK,                                                         •••••"`
LLC, a Washington corporation,

                           Respondents,        UNPUBLISHED OPINION

             and                               FILED: May 22, 2017

UNKNOWN JOHN DOES,

                           Defendants.


      BECKER, J;— Christine Tolman appeals from an order denying her request

for attorney fees under the Mobile Home Landlord-Tenant Act and a prevailing

party provision in her rental agreement. We accept respondents' concession that

the trial court erred. The order is reversed and remanded to award attorney fees

as further discussed herein.

      The facts are undisputed. Beginning in January 2010, Tolman rented a lot

in Colonial Park, a mobile home park. Her lot included a deck built 16 years

earlier by a previous tenant. Tolman was walking across the deck one day when

her foot broke through rotted boards. Her ankle was injured.
No. 75141-7-1/2

       In July 2012, Tolman sued respondent Colonial Park LLC and owner Keith

Johnson. She alleged that the defendants failed to properly maintain the deck.

The causes of action she pleaded included negligence and statutory violations of

the Manufactured/Mobile Home Landlord-Tenant Act, chapter 59.20 RCW

(hereafter Mobile Home Landlord-Tenant Act), and the Consumer Protection Act,

chapter 19.86 RCW. The defendants filed a joint answer denying liability and

raising affirmative defenses.

       In September 2015, Tolman moved for partial summary judgment on the

defendants' breach of duty under the Mobile Home Landlord-Tenant Act. The act

prohibits mobile home park owners from "transferring responsibility for the

maintenance or care of permanent structures within the mobile home park to the

tenants of the park." RCW 59.20.135(2). A provision within a rental agreement

transferring responsibility for the maintenance or care of permanent structures to

park tenants is void. RCW 59.20.135(2). A paragraph in Tolman's rental

agreement purported to make her responsible for maintenance of "existing

facilities and any new structures."

       Initially, the defendants opposed the motion and argued that the deck was

not a permanent structure. They changed their position at the hearing on

summary judgment and stipulated to liability. Our record does not include a

transcript of the hearing in which this occurred. According to the clerk's minutes,

counsel for the defendants stated they "would prefer to try the case on damages

only, and therefore stipulate to liability, and no contributory fault and no

affirmative defenses."


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No. 75141-7-1/3

      The order granting the motion for partial summary judgment sets forth the

issues established on summary judgment:

      1. Plaintiffs motion is granted;
      2. Defendants owed plaintiff a non-delegable duty to maintain the
         deck and other permanent structures pursuant to the Mobile
         Home Landlord Tenant Act(MHLTA); and
      3. Defendants' rental contract is void, unenforceable, unlawful and
         in violation of the MHLTA in that it unlawfully shifts their non-
         delegable duty to maintain the deck and other existing
         permanent structures on the mobile home lot to tenant plaintiff.

       Tolman moved for a pretrial award of attorney fees and costs under the

Mobile Home Landlord-Tenant Act and Tolman's rental agreement. The court

reserved ruling on attorney fees until after trial. The court presided over a six-

day jury trial in November 2015.

       At trial, the court instructed the jury that the defendants' negligence had

already been established. "You are to decide what injuries and damages to

plaintiff were proximately caused by the defendants' negligence and what

amount plaintiff should recover." Defendants stipulated that Tolman had past

economic damages of $39,242.51 for medical bills and past economic damages

of $19,438.75 for wage loss. The jury was instructed that these damages "have

already been established" as damages "proximately caused by the negligence of

the defendants."

       The jury returned a verdict awarding Tolman $109,681.26 in damages for

her "Personal Injury Claim." In addition to the amounts already established for

past economic damages, the jury awarded $46,000 for past noneconomic

damages and $5,000 for future noneconomic damages. The jury awarded

nothing for future economic damages.

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No. 75141-7-1/4

       On the claim of violation of the Consumer Protection Act, the court

instructed the jury that it had already been established that defendants engaged

in an unfair or deceptive act or practice in the conduct of trade or commerce

affecting the public interest. The plaintiff had the burden of proving that the unfair

or deceptive act or practice was a proximate cause of injury to Tolman's property.

Such injury could be "the reasonable value of her lost use of the deck, if any,"

and the costs, if any, of investigating the claim.

       The jury rejected the consumer protection claim. They answered "No" to

the question "Did one or more of defendants' unfair or deceptive acts or practices

proximately cause injury or damages to plaintiff?"

       In a posttrial motion, Tolman renewed her request for attorney fees and

costs under the lease agreement and the Mobile Home Landlord-Tenant Act. In

another motion, she moved for judgment as a matter of law on the consumer

protection claim. In a third motion, she requested additur or a new trial on the

ground that the damages awarded were too low. The court denied all three

motions in a decision issued on March 30, 2016. The court explained that

attorney fees were denied because "this suit was essentially a premises liability

suit for personal injuries. The jury decision that no injury was caused by the

violation of the [Mobile Home Landlord-Tenant Act]from loss of use or the

investigation precludes recovery for attorney fees and costs, except statutory

fees and costs, under the [Mobile Home Landlord-Tenant Act] and [Consumer

Protection Act]." The court's decision did not address the rental agreement as a

basis for fees.


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No. 75141-7-1/5

       Tolman appeals only the decision denying attorney fees. The scope of

this opinion is limited accordingly.

       The defendants, who are respondents on appeal, filed an appellate brief

arguing that neither the Mobile Home Landlord-Tenant Act nor the rental

agreement authorizes an award of fees. At oral argument before this court,

counsel for respondents announced a significant change in their position. They

conceded that the trial court erred by refusing to award fees and costs to Tolman

for prevailing on her claim of a violation of the Mobile Home Landlord-Tenant Act.

They further conceded that Tolman is entitled to fees under at least one provision

of the rental agreement.

       As a result of these concessions, which we accept, the case must be

remanded to the trial court to award Tolman her reasonable attorney fees and

costs incurred in the trial court. We now outline the arguments that respondents

have abandoned, to provide guidance to the trial court and to ensure that the

respondents are not permitted to renew the same arguments as a basis for

reducing the fee award.

The action arises out of the Mobile Home Landlord-Tenant Act

      "In any action arising out of this chapter, the prevailing party shall be

entitled to reasonable attorney's fees and costs." RCW 59.20.110. Defendants

argued that Tolman's suit did not arise out of the Mobile Home Landlord-Tenant

Act because it was essentially a premises liability suit for personal injuries.

       The record presented for appeal does not support the argument that

Tolman pursued liability exclusively under a common law theory. To the


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No. 75141-7-1/6

contrary, even to the extent Tolman explored common law theories, such

theories were related to defeating the defense contention that Tolman was

responsible for the condition of the deck. Tolman sought partial summary

judgment to establish the defendants' liability for breaching a statutory duty under

the Mobile Home Landlord-Tenant Act. The jury was not instructed on common

law theories of premises liability. The verdict form did not refer to premises

liability. The jury was instructed that negligence had already been established.

Because the only order establishing negligence was the order granting summary

judgment of liability for violating the Mobile Home Landlord-Tenant Act, the

breach of duty under the Mobile Home Landlord-Tenant Act is the only

negligence claim on which the award of damages could have been based. The

duty respondents breached that made them negligent as a matter of law and

accountable for personal injury damages was established on summary judgment

as "a non-delegable duty to maintain the deck and other permanent structures

pursuant to the Mobile Home Landlord Tenant Act."

       "Arising out of" has a broader meaning than "caused by" or "resulted

from." Toll Bridge Auth. v. Aetna Ins. Co., 54 Wn. App. 400,404, 773 P.2d 906

(1989), quoting State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14 Wn.

App. 541, 543, 543 P.2d 645 (1975). Courts have defined it to mean "originating

from,""having its origin in,""growing out of," or "flowing from." Toll Bridge

Auth., 54 Wn. App. at 404, quoting Avemco Ins. Co. v. Mock,44 Wn. App. 327,

329, 721 P.2d 34(1986). Respondents properly concede that Tolman's action




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No. 75141-7-1/7

arose out of the Mobile Home Landlord-Tenant Act and that she is entitled to

fees under the act.

Attorney fees are not precluded by defense verdict on consumer protection claim
       The void and illegal provision in Tolman's rental agreement purporting to

make her responsible for maintenance of the deck was the unfair and deceptive

act that gave rise to Tolman's consumer protection claim. Because the jury

found no injury to property caused by the void provision, Tolman did not prevail

on her consumer protection claim.

       The trial court concluded that an award of attorney fees under the Mobile

Home Landlord-Tenant Act was precluded by the jury finding of no injury. This

reasoning was erroneous. The instructions and verdict form called upon the jury

to make two separate determinations of damages: first for the personal injury

claim and second for the consumer protection claim. The defense verdict on the

consumer protection claim meant only that the jury found that the void provision

in the rental agreement did not cause injury to Tolman's "property" either through

loss of use of the deck or investigative costs. See Hangman Ridge Training

Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)

(elements of claim). It did not erase the jury's separate finding that the

defendants' breach of a duty imposed by the Mobile Home Landlord-Tenant Act

proximately caused Tolman a total of $109,681.26 in personal injury damages.

Personal injury damages are not recoverable in a consumer protection claim.

Ambach v. French, 167 Wn.2d 167, 173, 216 P.3d 405(2009). But they are, of

course, recoverable in a personal injury action.



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No. 75141-7-1/8

Tolman is a prevailing party

       Respondents argued that Tolman was not entitled to attorney fees

because, having lost on her consumer protection act claim, she is not a

prevailing party. Having now agreed that she is entitled to fees, they have

necessarily abandoned this argument.

      A prevailing party has been defined as one who obtains judgment in her

favor, Seashore Villa Ass'n v. HugqIund Family Ltd. P'ship, 163 Wn. App. 531,

547, 260 P.3d 906(2011), review denied, 173 Wn.2d 1036(2012), and also as

one against whom no affirmative judgment is entered, Eagle Point Condominum

Owners Ass'n v. Coy, 102 Wn. App. 697, 706, 9 P.3d 898(2000). The brief of

respondent portrays this case as one in which there is no prevailing party for the

purpose of awarding attorney fees because both parties prevailed on major

issues, and also as one in which a plaintiff does not prevail because the

judgment obtained at trial does not exceed settlement offers. This case does not

fall into either category. See generally Eagle Point Condo. Owners Ass'n, 102

Wn. App. at 706-14. Tolman prevailed when the court rendered a judgment in

her favor and gave no affirmative relief to the defendants.

The rental agreement requires an award of fees

      Tolman asserts she is entitled to attorney fees under the rental

agreement.

      27. ATTORNEY'S FEES AND COSTS. Tenants shall pay for all
      attorney's fees and costs incurred by Landlord to enforce this
      Agreement. If any legal action arising out of this Agreement,
      including eviction, the prevailing party shall be entitled to
      reasonable attorney's fees and costs.


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No. 75141-7-1/9

       If by reason of any breach or default on the part of either party
       hereto it becomes necessary for the other party hereto to employ
       an attorney, then the non-breaching party shall have and recover
       against the other party in addition to costs allowed by law,
       reasonable attorneys' fees and litigation-related expenses including
       any such costs and attorneys'fees incurred for appeal or in
       bankruptcy. The non-breaching party shall be entitled to recover
       reasonable attorneys' fees and costs and expenses, as provided
       above, regardless of whether litigation is actually commenced.

       The first paragraph authorizes an award of reasonable fees and costs to

the prevailing party in "any legal action arising out of" the agreement.

Respondents' brief argued that Tolman's action did not arise out of the rental

agreement; rather, it arose out of the park's breach of its common law duty to

properly maintain the deck for invitees. Respondents have now conceded that

Tolman's action arose out of the rental agreement. As the prevailing party, she is

entitled to reasonable attorney fees and costs.

       The second paragraph authorizes an award of attorney fees if, "by reason

of any breach or default" of the other party, it becomes necessary to employ an

attorney.

       Counsel for respondents was asked at oral argument whether

respondents were standing by any part of their appellate brief. Counsel stated

they stand by their argument that the second paragraph of the attorney fee

section in the rental agreement does not apply because Tolman did not allege

that Colonial Park breached the agreement, and Colonial Park did not in fact

enforce the invalid clause. They contend that the invalid language purporting to

transfer to Tolman the duty of maintaining the deck was "inconsequential"




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No. 75141-7-1/10

because it was never enforced and Tolman admitted she was unaware of it until

litigation began.

       Chapter 59.20 RCW controls the legal rights, remedies, and obligations

arising from a rental agreement between a landlord and tenant regarding a

mobile home lot. RCW 59.20.040; Western Plaza, LLC v. Tison, 184 Wn.2d 702,

707, 364 P.3d 76(2015). A statute that affects the subject matter of a contract

"is incorporated into and becomes a part thereof." Dopps v. Alderman, 12 Wn.2d

268, 273, 121 P.2d 388 (1942). Thus, incorporated into Tolman's rental

agreement was the section of the act that prohibits mobile home park owners

from "transferring responsibility for the maintenance or care of permanent

structures within the mobile home park to the tenants of the park."

RCW 59.20.135(2). That statutory provision was central to every aspect of

Tolman's action against the defendants. Respondents violated the statute by

executing a rental agreement that transferred the duty of maintenance to Tolman.

By reason of this breach, it became necessary for Tolman to employ an attorney

to seek compensation for Tolman's injury. Respondents resisted for quite some

time by asserting that it was Tolman's responsibility to maintain the deck. As the

nonbreaching party, Tolman is entitled under the second paragraph to attorney

fees and litigation-related expenses.

       The respondents stand by one other argument in their brief: that Tolman

is entitled to only those fees she incurred through October 16, 2015, the date

when they admitted liability and withdrew their affirmative defenses, resulting in

the grant of partial summary judgment in Tolman's favor. Respondents suggest


                                            10
No. 75141-7-1/11

that Tolman accomplished nothing more by litigating after that date than if she

stopped litigating on that date. Indeed, they argue that it was unfair that Tolman

took three years to prepare the motion for partial summary judgment. We reject

their arguments. Respondents' view of the record is inaccurate. When the

respondents stipulated to "liability," they did not settle the case. A full trial was

necessary because they did not stipulate to causation or damages.

       Also, the respondents did not stipulate that a judgment in Tolman's favor

would entitle her to an award of attorney fees. Tolman's right to attorney fees

under the Mobile Home Landlord-Tenant Act and the rental agreement is a

valuable right. The fee-shifting provisions increased the likelihood that Tolman

would obtain legal representation despite the difficulty of proving damages

sufficient to make a contingent fee arrangement worthwhile. Respondents took

the position that Tolman had no right to an award of attorney fees because the

action was one for personal injury, they persuaded the trial court of the merits of

that position, and they did not abandon that position until the day they appeared

before this court for oral argument. Tolman's need to employ an attorney to

vindicate her rights under the rental agreement has continued throughout this

appeal and will continue until the trial court enters a judgment for an adequate

award of attorney fees and payment is made. Her right to attorney fees for

prevailing in "any action" arising out of chapter 59.20 RCW likewise continues.

       This is not to say that the trial court is bound to award fees for every hour

of time Tolman's attorneys have devoted to this lawsuit. A trial court must take

an active role in assessing the reasonableness of fee awards, including the entry
No. 75141-7-1/12

of findings and conclusions to document the court's application of the lodestar

methodology. Mahler v. Szucs, 135 Wn.2d 398, 433-35, 957 P.2d 632, 966 P.2d

305(1998). In calculating the lodestar, a court multiplies the number of hours

reasonably expended by the reasonable hourly rate. The hours reasonably

expended must be spent on claims having a common core of facts and related

legal theories. The court should discount hours spent on unsuccessful claims,

duplicated or wasted effort, or otherwise unproductive time. Chuong Van Pham

v. Seattle City Licrht, 159 Wn.2d 527, 538, 151 P.3d 976 (2007).

       Tolman contends the unsuccessful consumer protection claim arose out of

the same core of facts as the rest of the lawsuit such that it is difficult to

disentangle the work done on one from work done on the other. It will be up to

the trial court to determine whether and to what extent the two statutory causes

of action were so intertwined that the time cannot be reasonably segregated.

See e.q., Miller v. Kenny, 180 Wn. App. 772, 824, 325 P.3d 278(2014).

       In evaluating the reasonableness of Tolman's fee request, the trial court

must construe RCW 59.20.110 in light of the stated purpose of the Mobile Home

Landlord-Tenant Act. See Faciszewski v. Brown, 187 Wn.2d 308, 320, 386 P.3d

711 (2016). The prohibition against transferring the responsibility of maintenance

to tenants was enacted with a very specific declaration of public interest:

       The legislature finds that some mobile home park owners transfer
       the responsibility for the upkeep of permanent structures within the
       mobile home park to the park tenants. This transfer sometimes
       occurs after the permanent structures have been allowed to




                                               12
No. 75141-7-1/13

       deteriorate. Many mobile home parks consist entirely of senior
       citizens who do not have the financial resources or physical
       capability to make the necessary repairs to these structures once
       they have fallen into disrepair. The inability of the tenants to
       maintain permanent structures can lead to significant safety
       hazards to the tenants as well as to visitors to the mobile home
       park. The legislature therefore finds and declares that it is in the
       public interest and necessary for the public health and safety to
       prohibit mobile home park owners from transferring the duty to
       maintain permanent structures in mobile home parks to the tenants.

RCW 59.20.135.

       The defendants did not concede below that Tolman's action arose out of

the Mobile Home Landlord-Tenant Act or out of the rental agreement. Such an

admission would have conceded Tolman's entitlement to an award of attorney

fees, an issue the defendants forced Tolman to litigate until their concession at

oral argument. The general rule is that time spent on establishing entitlement to,

and amount of, a court awarded attorney fee is compensable where the fee shifts

to the opponent under a fee shifting statute. Fisher Props., Inc. v. Arden-Mayfair,

Inc., 115 Wn.2d 364, 378, 798 P.2d 799 (1990).

       Tolman requests attorney fees and costs on appeal pursuant to RAP 18.1.

Both RCW 59.20.110 and the rental agreement authorize an award of fees to

Tolman. As the prevailing party on appeal, she is entitled to an award of attorney

fees and costs for this appeal, subject to compliance with RAP 18.1.




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No. 75141-7-1/14

       The order denying fees is reversed. We remand for further proceedings

consistent with this opinion.




WE CONCUR:




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