 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CCT CONSTRUCTION, INC., a
 Washington corporation,                                   DIVISION ONE

                          Respondent,                      No. 80638-6-I

                 v.                                        UNPUBLISHED OPINION

 4EVER HEALING, LLC, a Washington
 limited liability company, d/b/a
 FORBIDDEN CANNABIS CLUB; and
 SARANJIT BASSI, individually,

                          Appellants.


 SURANJIT BASSI,

                 Third Party Appellant,

                  v.

 CRAIG SHIPMAN,

                Third Party Respondent.


        DWYER, J. — This is a commercial landlord-tenant dispute. CCT

Construction, Inc. (CCT), the landlord, brought this action for breach of a lease

against 4Ever Healing, LLC (4Ever), the tenant. The trial court ruled in CCT’s

favor and awarded damages to CCT. 4Ever appeals from the judgment, arguing



Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80638-6-I/2


that an earlier breach by CCT as well as a constructive eviction excused its

performance under the lease, that certain items it installed on the leased

premises were not intended to become permanent improvements, that CCT had

a duty to mitigate its damages resulting from the breach, and that 4Ever was

entitled to an award of attorney fees. We reverse the trial court’s decision

regarding fixtures but affirm in all other respects.

                                           I

       CCT agreed to lease real property and structures in the City of Bonney

Lake (the City) to 4Ever for a five-year term commencing June 1, 2016, and

continuing to May 31, 2021. The lease provided that the property would be used

for a cannabis retail store and that CCT’s written consent would be required

before any other business or purpose would be allowed.

       4Ever, as lessee, agreed to monthly base rental payments of $8,500, due

on the first day of each calendar month. CCT and 4Ever orally contracted to

defer payment of $2,500 of the rent each month until the store was open for

business. Saranjit Bassi, managing member of 4Ever, signed the lease on

4Ever’s behalf on June 7, 2016. Craig Shipman, manager of CCT, signed the

lease on CCT’s behalf. Bassi, acting in his individual capacity, also guaranteed

the payment and performance of 4Ever’s obligations pursuant to the lease by

way of a guaranty signed June 7, 2016.

       The property was composed of two parcels, referred to in the lease as

“Unit A,” containing a residence, and “Unit B,” which contained a garage. The

lease provided for CCT to continue using Unit A for a 60-day period after the




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No. 80638-6-I/3


lease’s commencement. It also provided that CCT would share on-site parking

with 4Ever for the lease’s duration. 4Ever agreed to pay CCT an additional

$15,000 to cover CCT’s expenses incurred in moving out of Unit A within the 60-

day period. Although this amount was paid, CCT never vacated Unit A. 4Ever’s

attempt to rent out Unit A failed when its would-be subtenants arrived on August

1 to find CCT still occupying the unit. At trial, both parties testified to an oral

agreement that accounted for CCT’s continued presence, although the testimony

of the parties varied considerably as to the agreement’s substance.

       However, 4Ever was unable to obtain approval from the City to open a

retail cannabis store. At all times relevant to this litigation, the City maintained a

moratorium on such stores within its limits. Although 4Ever and CCT had both

been aware of the moratorium at the time of the lease’s execution, 4Ever had

agreed to pay any fines or penalties incurred in violation thereof. The City did not

wait to enforce its ordinance until after the store had opened and, instead, posted

a “stop work” order on the site in late August.

       4Ever did not pay rent for the month of September, but continued

occupying Unit B until September 17, when CCT mailed a 3-day notice to vacate

to 4Ever’s attorney and posted the 3-day notice on the front door of Unit B. In

response, 4Ever immediately began removing items from Unit B, including glass

display cabinets that had been bolted down and television monitors that had

been affixed to the walls. While CCT did not prevent 4Ever from removing these

items, arguments between Shipman and Bassi over whether such items were

fixtures that had to remain on the property led to both men telephoning the




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No. 80638-6-I/4


police, who arrived and informed the parties that removal of personalty was “a

civil matter.”

       By the next day, all of 4Ever’s personal property had been removed by

Bassi except for a large outdoor air conditioning unit. When Bassi arrived on site

with the intent of removing the air conditioning unit, he found that Shipman had

parked several vehicles on the property in a manner that obstructed access to

the air conditioner. Shipman maintained that the air conditioning unit was a

permanent fixture and refused to allow Bassi to remove it. However, Bassi was

not otherwise obstructed from entering and exiting the site.

       Once he had vacated, Bassi obtained a new lease elsewhere in Bonney

Lake and continued his efforts to gain approval for a cannabis retail business.

On November 16, 2016, CCT commenced the present action in superior court,

alleging that 4Ever breached the parties’ contract and that Bassi, as guarantor,

was personally liable for the breach. 4Ever then counterclaimed for breach of

contract, conversion, forcible entry, and tortious interference with 4Ever’s

business expectancy, and also asserted claims against Shipman personally.

       The parties proceeded to a bench trial that featured often contradictory

testimony from Shipman and Bassi. Shipman introduced evidence of the re-

rental value of both Units A and B based on his own research. Neither party

introduced any evidence as to the costs associated with re-letting the property.

The court ultimately found that 4Ever and Bassi were liable for breaching the

parties’ lease. It computed damages as follows:

              3. The Lease required that 4Ever Healing pay rent at the rate
       of $6,000.00 per month until the business opened. The business



                                         4
No. 80638-6-I/5


      never opened, therefore, the rent due under the Lease for the
      Lease term of sixty (60) months is $6,000.00 per month for a total
      amount of rent due under the Lease of $360,000.00.
              4. 4Ever Healing paid rent for three (3) months out of the
      sixty (60) month term of the Lease. 4Ever Healing paid $15,000.00
      to the Plaintiff for a relocation fee. These payments totaling
      $33,000.00 shall be credited towards the total rent owed by 4Ever
      Healing under the Lease.
              5. The re-rental value of the shop, Unit B, is $2,200.00 per
      month. The rental value of Unit B during the balance of the Lease
      term of fifty-six (56) months totals $123,200. This amount shall be
      credited towards the total rent owed by 4Ever Healing under the
      Lease.
              6. The re-rental value of the residence, Unit A, is $2,700.00
      per month, which totals $151,200.00 for the remaining fifty-six (56)
      months of the Lease term. This amount shall be credited towards
      the total rent owed by 4Ever Healing under the Lease.
              7. 4Ever Healing is entitled to a credit of $6,800.00 against
      rent due under the lease for lost rent from Unit A due to CCT’s
      failure to vacate Unit A on August 1, 2016.
              8. Total damages to CCT from 4Ever Healing’s failure to pay
      rent in breach of the Lease is $45,800.00 based on the following
      calculation: $360,000.00 total amount due under the Lease -
      $33,000.00 rent and relocation fee paid by 4Ever Healing -
      $123,200.00 rental value of Unit B during the balance of the Lease
      term - $151,200.00 rental value of Unit A during the balance of the
      Lease term - $6,800.00 lost rent to 4Ever Healing = $45,800.00.

      To this number the court added $6,700 for the value of cabinets and

television monitors that 4Ever had removed and $8,000 for property taxes for the

duration of the lease, but credited to 4Ever the $4,000 balance of a personal loan

Bassi had made to Shipman. Thus, the court awarded to CCT damages of

$56,500. It also awarded attorney fees to CCT in the amount of $15,325. 4Ever

appeals.

                                        II

      4Ever’s first contention is that its performance on the lease was excused

when CCT failed to vacate Unit A within 60 days of June 1, 2016. While the trial




                                        5
No. 80638-6-I/6


court identified this as a breach of the lease and awarded damages to 4Ever

stemming from the breach, it did not hold that 4Ever was excused from

performance. This decision was supported by the court’s unchallenged findings

of fact.

                                          A

       When evaluating evidence in a bench trial, our review is limited to

determining whether the trial court’s factual findings are supported by substantial

evidence and whether those findings support the trial court’s conclusions of law.

Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 242-43, 23 P.3d

520 (2001). Substantial evidence is the “quantum of evidence sufficient to

persuade a rational fair-minded person the premise is true.” Sunnyside Valley

Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). On review, the

evidence and all reasonable inferences therefrom must be viewed in the light

most favorable to the prevailing party. Korst v. McMahon, 136 Wn. App. 202,

206, 148 P.3d 1081 (2006).

       Although the trier of fact is free to believe or disbelieve any evidence

presented at trial, “[a]ppellate courts do not hear or weigh evidence, find facts, or

substitute their opinions for those of the trier-of-fact.” Quinn v. Cherry Lane Auto

Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009) (citing Thorndike v.

Hesperian Orchards, Inc., 54 Wn.2d 570, 572, 343 P.2d 183 (1959)). We review

questions of law de novo. Sunnyside Valley, 149 Wn.2d at 880. When the trial

court has mislabeled a conclusion of law as a finding of fact, the conclusion is




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No. 80638-6-I/7


also reviewed de novo. Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P.3d

743 (2012).

       As to the proper interpretation of the parties’ lease agreement, we have

stated:

               In construing a lease, the court’s function is to ascertain and
       give effect to the intention of the parties as expressed in their
       agreement. Murray v. Odman, 1 Wn.2d 481, 96 P.3d 489 (1939);
       Wilsonian Inv. Co. v. Swope, 180 Wash. 35, 38 P.2d 399 (1934).
       The agreement must be read and considered as a whole, and if,
       when so considered, its terms are plain and unambiguous, the
       intention of the parties will be deduced from the language used.
       Dennis v. Southworth, 2 Wn. App. 115, 467 P.2d 330 (1970).
       “Technical terms and words of art are given their technical meaning
       unless the context or a usage which is applicable indicates a
       different meaning.” RESTATEMENT OF CONTRACTS § 235(b) (1932);
       see also Amick v. Baugh, 66 Wn.2d 298, 402 P.2d 342 (1965). But
       if the provisions of a lease are doubtful in that they are reasonably
       capable of more than one interpretation, the court will adopt that
       interpretation which is more favorable to the lessee, particularly
       when, as here, the lease was drafted by the lessor. White v.
       Coates, 17 Wn.2d 686, 137 P.2d 113 (1943); Murray v. Odman,
       supra; Gates v. W.B. Hutchinson Inv. Co., 88 Wash. 522, 153 P.
       322 (1915).

Allied Stores Corp. v. N. W. Bank, 2 Wn. App. 778, 783-84, 469 P.2d 993

(1970).

                                      B

       The parties do not dispute that CCT and 4Ever agreed that Unit A would

be vacated within 60 days of June 1, 2016. Nor do they dispute that CCT failed

to vacate Unit A by this date. 4Ever Healing did not intend to use Unit A for its

cannabis retail business but, rather, sought to rent out Unit A as a residence to

defray the costs of setting up a store. It was prevented from doing so when CCT

failed to move out.




                                          7
No. 80638-6-I/8


       The trial court did not conclude that CCT’s failure to vacate Unit A was a

material breach that excused any future performance by 4Ever. In its

memorandum decision, the court noted:

       This case is complicated by the fact that both parties breached the
       lease . . . . The Plaintiff breached the lease when Mr. Shipman did
       not move out of the house by August 1, 2016. Mr. Bassi never
       gave notice to the Plaintiff of the breach. 4Ever Healing breached
       the lease for September, 2016, by failing to pay rent for September.

       The parties’ contract did not, however, require Bassi or 4Ever to give

notice to CCT of the breach. Nor do the trial court’s findings of fact and

conclusions of law mention any failure to give notice. To the extent that CCT

argues that 4Ever was required to give notice of the breach, it is wrong.

       The evidence adduced at trial shows that CCT did have actual notice of

the breach, as Bassi confronted Shipman about his failure to move out.

However, the evidence also shows that 4Ever, rather than ceasing to perform

under the parties’ contract, sought an arrangement to reduce its rent in return for

accommodating Shipman’s continued presence, continued occupying and

making improvements to Unit B, and continued seeking approval from the City to

open a cannabis retail store. These facts all support a finding that Bassi agreed

to an oral modification of the parties’ written contract, a modification supported by

consideration in the form of reduced rent. Furthermore, the trial court ultimately

credited to Bassi the rental income that he lost when he was unable to sublet

Unit A to other renters, notwithstanding that he had no written agreements with

his would-be subtenants.




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No. 80638-6-I/9


        We will not reweigh this evidence. CCT’s breach did not excuse 4Ever

from performing in accordance with the lease.1

                                                 III

        We now turn to 4Ever’s contention that the trial court erred in ruling that

glass cabinets, television monitors, and an outdoor air conditioning unit it

installed in Unit B were fixtures that became part of the property. Because this is

so, 4Ever contends, both the award of damages to CCT for the value of the

cabinets and monitors, which 4Ever successfully removed, was erroneous and

4Ever should have received an award of damages for the value of the air

conditioner that it was unable to remove. These contentions have merit.




        1
           4Ever also claims that the posting of a 3-day notice on the premises, along with CCT’s
obstructive placement of vehicles on the property the next day, amounted to a constructive
eviction. This contention is without merit.
         RCW 59.12.040 sets specific requirements for how notice is to be served. There is no
dispute that CCT did not comply with the notice requirements of the contract or this statute.
There is also nothing in the record supporting 4Ever’s bold assertion that posting the notice, in
and of itself, constituted a “constructive eviction.” Constructive eviction involves an intentional or
injurious interference with a leased premises by a landlord or its agents that materially impairs the
tenant’s power to enjoy the premises. Old City Hall LLC v. Pierce County AIDS Found., 181 Wn.
App. 1, 8, 329 P.3d 83 (2014). In the context of a commercial lease, a landlord constructively
evicts a tenant by “‘seriously interfer[ing] with the tenant’s conduct of business on the premises.’”
Old City Hall, 181 Wn. App. at 8-9 (quoting 17 W ILLIAM B. STOEBUCK & JOHN W. W EAVER,
W ASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 6.32, at 352 (2d ed. 2004)). Such
interference occurs when the landlord commits any wrongful act or omission “whereby the
premises are rendered unsafe, unfit, or unsuitable for occupancy for the purpose for which they
were leased.” Erickson v. Elliott, 177 Wash. 229, 232, 31 P.2d 506 (1934).
         The mere posting of a 3-day notice to pay rent or vacate cannot sustain a finding that the
premises were rendered unsafe, unfit, or unsuitable for occupancy, particularly when 4Ever did
not attempt to remain on the property after the notice was posted. A constructive eviction cannot
obtain in such a scenario. See Erickson, 177 Wash. at 233 (“In this case, the premises were
vacated without giving the respondents an opportunity to correct the condition. The appellants
have not brought themselves within the law justifying the vacation of the premises on the ground
of constructive eviction.”).
         Nor did CCT’s placement of vehicles around the premises, for the express purpose of
blocking 4Ever’s access to an air conditioner, effect a constructive eviction, particularly when
4Ever had already otherwise vacated the property.



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No. 80638-6-I/10


       “It is well recognized that determining what constitutes a fixture as

opposed to personal property is a difficult task, that depends on the particular

facts of each case.” Union Elevator & Warehouse Co., v. Dep’t of Transp., 144

Wn. App. 593, 603, 183 P.3d 1097 (2008). Washington courts apply the

common law test of fixtures to determine whether a particular item is personal

property or real property. Glen Park Assocs., LLC v. Dep’t of Revenue, 119 Wn.

App. 481, 486, 82 P.3d 664 (2003). “When, however, a landlord and tenant

make a lease agreement in which there are stipulations relative to the ownership

of chattels which may be placed upon the leased premises by the tenant, the

agreement will be enforced regardless of what might be the rights of the parties

at common law.” Forman v. Columbia Theater Co., 20 Wn.2d 685, 691, 148

P.2d 951 (1944).

       As we have stated:

       Although in a general sense it can be said that all “fixtures” (as
       distinguished from “trade fixtures”) become, at least temporarily,
       part of the real property and therefore “improvements,” the
       converse is not true. Not all “improvements” are fixtures. Siegloch
       v. Iroquois Mining Co., 106 Wash. 632, 181 P. 51 (1919); see also
       Olympia Lodge No. 1, F. & A. M. v. Keller, 142 Wash. 93, 252 P.
       121 (1927).
               A “fixture” is a chattel which has been annexed to and has
       become a part of realty but which retains its separate identity and
       may be removed and become personalty again. See Frost v.
       Schinkel, 121 Neb. 784, 238 N.W. 659, 77 A.L.R. 1381 (1931); 1 G.
       Thompson, Real Property § 55 (1964). On the other hand, building
       materials, although chattels which may be affixed to the land,
       cannot be removed and regain their prior identity. When combined
       with labor, building materials become “improvements” to real
       property, irretrievably losing their separate identity. See Rogers v.
       Gilinger, 30 Pa. 185, 72 Am. Dec. 694 (1858).




                                         10
No. 80638-6-I/11


Allied Stores Corp., 2 Wn. App. at 782-83. Also relevant to our inquiry is

whether the articles annexed to a property are “trade fixtures.”

       A tenant may remove things annexed if a court deems them to be
       so-called “tenant’s trade fixtures,” a phrase or label that needs to be
       explained. The word “fixture” usually means something a
       possessor of land has added that cannot be removed, in other
       words, a thing that has become part of the land by accession. But
       “tenant’s trade fixture” has the opposite meaning; a tenant may
       remove it. . . . Because of the limited duration of his estate, a
       leasehold tenant, particularly if the term is short, is more likely than
       an owner to have a presumed intent that things should be
       removable at the end of his estate. Therefore, Washington has
       allowed tenants to remove some improvements and additions that
       are quite firmly annexed to the land if they were installed to aid the
       tenant in conducting a business.

17 STOEBUCK & W EAVER, SUPRA, § 6.41.

       In Forman, tenant Columbia Theater Company leased real property to

operate a motion picture theater. The original landlord sold several fixtures in the

building to Columbia, including seats, an organ, the screen and projectors, and

curtains. Forman, 20 Wn.2d at 688. The parties’ lease provided:

       “That on termination of this lease by expiration of the term thereof
       or otherwise, [Columbia] will immediately without notice quit and
       surrender said premises to the lessors in as good order and
       condition and repair as reasonable use and wear of same will
       permit, and will promptly remove their theater equipment and
       personal property, and will leave on said premises all permanent
       improvements and repairs made during the term; and that in case
       they shall hold over after the expiration of the term with the consent
       of the lessors, express or implied, such holding shall be construed
       to be a tenancy from month to month at the monthly rent
       hereinbefore specified.”

Forman, 20 Wn.2d at 688-89.

       After the original landlord sold the property, Columbia began vacating and

removing its fixtures. Forman, 20 Wn.2d at 689. However, it also claimed that




                                         11
No. 80638-6-I/12


fire doors, automatic fire shutters, wiring, conduits, soundproofing material on the

building’s walls, the theater’s sign and marquee, and illuminated advertising

boards that it had installed during its tenancy were not permanent improvements,

but were trade fixtures that it was entitled to remove. Forman, 20 Wn.2d at 689-

91. The court distinguished these items as “additions and improvements,” as

opposed to fixtures:

       The theater building owned by respondents was rented for one
       purpose—the operation of a motion picture theater. The
       improvements and additions were made for the sole purpose of
       improving the building for that purpose. The new wiring, the Ozite
       soundproofing on the walls were merely for the purpose of making
       the building suitable for the showing of sound pictures. The portion
       of the wiring which is not imbedded in the walls and floors is
       attached to the walls by straps which are nailed to the walls. The
       Ozite is glued to the wall, and the urinal is cemented into the wall
       and floor. These items definitely “savor of the realty” . . . .

       This applies to the electric sign, the false ceiling on the marquee
       and the reader boards attached thereto. All are physically attached
       to the building, and the ease or hardship incident to removing them
       is immaterial.

Forman, 20 Wn.2d at 694. Thus, Columbia contracted away its right to remove

improvements, but not trade fixtures.

       The evidence herein does not support the proposition that 4Ever’s glass

cabinets, television monitors, and air conditioning unit were improvements that

became part of the property upon annexation, as opposed to trade fixtures that

4Ever was entitled to remove. The relevant provision of the parties’ lease stated:

              16. Lessee shall not make any alterations, additions or
       improvements to said Premises without the consent of Lessor in
       writing first had and obtained, and all alterations, additions and
       improvements which shall be made at the sole cost and expense of
       Lessee, and shall become the Premises of the Lessor, and shall
       remain in and be surrendered with the Premises as a part thereof at



                                        12
No. 80638-6-I/13


       the termination of this Lease, without disturbance, molestation or
       injury.

(Emphasis added.) Notably absent from this paragraph is any reference to

“fixtures,” as opposed to “alterations, additions or improvements” to the premises.

Bassi testified that 4Ever did make structural additions to the premises that were

left in place, including drywall and ceiling vents, as well as a smaller air

conditioning unit. These items were additions and improvements that could not

be removed without causing damage to the premises—thus “irretrievably losing

their separate identity” and becoming part of the premises. Allied Stores Corp., 2

Wn. App. at 783. In executing the lease herein, 4Ever agreed to leave these

items in place.

       By contrast, the cabinets, monitors and outdoor air conditioning unit were

all removable with a minimum of physical disruption. All of these items were

installed for the purpose of enhancing 4Ever’s planned cannabis retail store:

glass cabinets would display items available for purchase; the monitors were

installed to display a “menu” of available products for customers. The outdoor air

conditioning unit had not yet been fully connected to the building, in contrast with

the indoor air conditioning unit that 4Ever had installed and which it left in place.

The cabinets, monitors, and outdoor air conditioning unit were trade fixtures, and

as such were not within the scope of the applicable lease provision. 4Ever was

entitled to remove all of them and is entitled to damages for the value of the

outdoor air conditioner that it could not remove. Likewise, CCT was not entitled

to damages for any of these items’ removal. The judgment must be amended

accordingly.



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No. 80638-6-I/14


                                          IV

       Next, we address 4Ever’s challenge to the trial court’s award of damages

based on unaccrued rent. 4Ever asserts that CCT had a duty to mitigate its

losses caused by the breach of the parties’ lease by reletting the property.

Because CCT did not do so, 4Ever avers, CCT was not entitled to damages

based on unaccrued rent or on property taxes. Because the trial court, in fact,

reduced CCT’s award of damages based on the property’s re-rental value, this

claim is without merit.

       “A trier of fact has discretion to award damages which are within the range

of relevant evidence.” Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 850, 792 P.2d

142 (1990). In considering a fact finder’s award of damages, we will only disturb

such an award where it is “outside the range of substantial evidence in the

record, or shocks the conscience, or appears to have been arrived at as the

result of passion or prejudice.” Mason, 114 Wn.2d at 850. “‘Evidence of damage

is sufficient if it is the best evidence available and affords a reasonable basis for

estimating the loss.’” Spradlin Rock Prods., Inc. v. Pub. Util. Dist. No. 1 of Grays

Harbor County, 164 Wn. App. 641, 663, 266 P.3d 229 (2011) (internal quotation

marks omitted) (quoting Kwik-Lok Corp. v. Pulse, 41 Wn. App. 142, 150, 702

P.2d 1226 (1985)). A claimant need not prove damages with mathematical

certainty. Harmony at Madrona Park Owners Ass’n v. Madison Harmony Dev.,

Inc., 160 Wn. App. 728, 737, 253 P.3d 101 (2011).

       The requirements for what, if any, action a landlord must take upon a

tenant’s voluntary abandonment of leased real property differ by jurisdiction.




                                          14
No. 80638-6-I/15


               The rule that the landlord may recover rent from an
        abandoning tenant without attempting to relet the premises is the
        apparent majority rule. The principle of stare decisis has
        sometimes been called upon to sustain it. However, a substantial
        number of American jurisdictions have rejected this rule, and the
        trend is to require a landlord to attempt to relet the premises if the
        landlord wishes to hold an abandoning tenant liable for rent.

5 THOMPSON        ON   REAL PROPERTY § 40.11(C)(1) (3d Thomas ed. 2019) (footnotes

omitted).

        Washington has rejected the majority rule and, instead, generally requires

a landlord to mitigate the damages incurred by a tenant’s abandonment by

reletting the property for the landlord’s own account or for the tenant’s account.

Pague v. Petroleum Prods., Inc., 77 Wn.2d 219, 223, 461 P.2d 317 (1969).

        Thus, in Washington, a tenant’s liability for unaccrued rent ordinarily ends

when a lease is surrendered or terminated. Heuss v. Olson, 43 Wn.2d 901, 905,

264 P.2d 875 (1953). Exceptions to this rule exist. “‘[W]hen the forfeiture or

surrender is qualified, as in the case of a lease which expressly saves the

lessor’s right to also recover damages based on unaccrued rent . . . the lessee is

not released from liability therefor.’” Hargis v. Mel-Mad Corp., 46 Wn. App. 146,

151, 730 P.2d 76 (1986) (quoting Heuss, 43 Wn.2d at 905).2

        Here, the trial court did, in fact, reduce CCT’s damages by the

considerable amount of $274,400 based on an evidentiary estimate of what

amount CCT would earn from reletting both Unit A and Unit B. This amount was

informed in part by Shipman’s own testimony:




        2
            CCT argues that the lease provides it with such a right. We need not decide that
question.


                                                 15
No. 80638-6-I/16


        [COUNSEL]: Have you done any research yourself regarding the
        value of rentals in Bonney Lake?
        [SHIPMAN]: Yes.
        [COUNSEL]: What was the source of your research?
        [SHIPMAN]: I did Zillow.
        [COUNSEL]: That’s the online Zillow website?
        [SHIPMAN]: That’s correct.
        [COUNSEL]: How did you use Zillow; how can a person go on
        Zillow and use it?
        [SHIPMAN]: Well, you can type in an address and it will give
        you . . . . a rental—what they think fair market rental rate is.
        [COUNSEL]: Did you do any research regarding the property that’s
        at issue here with the lease?
        [SHIPMAN]: Yes, I did.
        ....
        [COUNSEL]: With regard to your most current research, what do
        you believe is—do you have an opinion about the fair rental value
        of your property?
        [SHIPMAN]: Of the house itself, it would be $1,800 to $2,000.
        ....
        [COUNSEL]: With regard to the garage, is that—would that be a
        separate value, the shop?
        ....
        [SHIPMAN: Yeah. It would be roughly about $2,000.

        The only other evidence in the record of the property’s re-rental value was

the text of the parties’ lease, which provided a monthly base rent of $8,500 for

the entire property. The trial court found the re-rental values for the garage and

the house to be $2,200 per month and $2,700 per month, respectively—less than

the rate set forth in the lease, but greater than the re-rental values to which

Shipman attested.

        The relief sought by 4Ever was effectively granted by the trial court when it

determined the property’s re-rental value, applied that to the duration of 4Ever’s

lease agreement, and credited that amount to 4Ever.3 A second credit based on



        3
         Significantly, there was no testimony as to the costs of mitigation. Thus, the trial court
adopted the best measure of loss, consistent with the evidence presented.


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a finding that CCT failed to mitigate its damages would have effected a double

recovery for 4Ever. “It is a basic principle of damages, both tort and contract,

that there shall be no double recovery for the same injury.” Eagle Point Condo.

Owners Ass’n v. Coy, 102 Wn. App. 697, 702, 9 P.3d 898 (2000). The amounts

credited to 4Ever were well within the range of the evidence. Mason, 114 Wn.2d

at 850. The trial court’s ruling is affirmed.

                                                   V

        CCT and 4Ever both seek attorney fees on appeal under RAP 18.1. RAP

18.1(a) permits an award of attorney fees on appeal if authorized by applicable

law. When a contract allows for attorney fee awards in the trial court, the

prevailing party before this court may seek reasonable attorney fees incurred on

appeal. Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 717-18,

334 P.3d 116 (2014). Here, the parties’ lease authorized attorney fees for CCT,

but not 4Ever. Pursuant to RCW 4.84.330, all unilateral fee provisions are

deemed bilateral.

        Here, both 4Ever and CCT have prevailed on major issues. Thus, both

should bear their own costs and fees. Marassi v. Lau, 71 Wn. App. 912, 916,

859 P.2d 605 (1993), abrogated on other grounds by Wachovia SBA Lending,

Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009). We award no fees.4




        4
          4Ever also challenges the trial court’s award of attorney fees. 4Ever was not the
prevailing party at trial, and we affirm the trial court in all respects save the fixtures issue. There
is no evidence in the record that the attorney fees awarded at trial could be segregated between
claims. Thus, we will not disturb the trial court’s award of fees.


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      Affirmed in part, reversed in part, and remanded for further proceedings.




WE CONCUR:




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