                                                                          FILED
                                                                        JULY 3, 2019
                                                               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

WA-HOLDINGS-01, LLC, a Washington            )
limited liability company,                   )         No. 35951-4-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )
                                             )         UNPUBLISHED OPINION
SNAKE RIVER STILLS, LLC, a                   )
Washington limited liability company dba     )
Walla Walla Weedery,                         )
                                             )
                     Appellant.              )

       KORSMO, J. — Snake River Stills, LLC, appeals from orders directing that it pay

damages and attorney fees to respondent WA-Holdings arising from a lease of

commercial space. We reverse in part and remand for further proceedings. We decline

to award attorney fees on appeal.

                                         FACTS

       This appeal involves a lease for a cannabis retail establishment in downtown

Walla Walla. The two sides have had an ongoing business relationship that extends

beyond this particular lease and have engaged in litigation against each other in both

Walla Walla County and in Pierce County.
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


       Snake River began leasing the Walla Walla space for $25,000 per month

commencing in August 2015. The lease provides for WA-Holdings to recover attorney

fees in the event of a default. WA-Holdings sued Snake River and other defendants in

Pierce County Superior Court in October 2016. In December 2016, WA-Holdings filed

an unlawful detainer action against Snake River in the Walla Walla Superior Court,

alleging that Snake River had failed to pay rent since August 1, 2015.

       On May 22, 2017, the parties entered into a settlement agreement designed to

resolve both lawsuits. The agreement required Snake River to make a payment, vacate

the Walla Walla site by August 1, 2017, and provide for attorney fees for the prevailing

party in an action to resolve disputes under the Settlement.1 On May 30, the parties

entered a stipulation and order in the Walla Walla cause. The stipulation provided that if

Snake River failed to vacate the premises before August 1, 2017, WA-Holdings would be

entitled to an immediate writ of restitution.

       Two months after the settlement agreement, Snake River moved to stay the writ of

restitution. It also moved the court to either declare the Settlement unenforceable or




       1
        The amount of the payment is unclear, because the words indicate Snake River
was to pay “one million four hundred thousand dollars,” while the figures indicate the
payment was to be “$1,700,000.”

                                                2
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


declare that WA-Holdings was required to dismiss all remaining defendants in the Pierce

County lawsuit.2

      The Walla Walla Superior Court granted the writ of restitution on August 1, 2017,

and ordered Snake River evicted from the premises. This court denied a petition for

discretionary review as untimely. On August 11, the superior court stayed the writ of

restitution and other proceedings in the case pending appeal to this court. Among the

conditions of the stay were requirements that Snake River post a $100,000 bond, continue

to pay $25,000 per month in rent, and post an additional $25,000 per month as security.

The rental payment was made to the clerk of court on the 18th of each month. The clerk

was to forward payment to WA-Holdings upon receipt. Clerk’s Papers (CP) at 622-623.

      Snake River continued to hold over in the building until October 6, 2017, when it

moved to another location and notified the court that it had vacated.3 Although Snake

River made its August and September payments to the court, it did not make a payment

in October. In February, 2018, WA-Holdings moved the Walla Walla Superior Court for

damages for (1) unpaid rent, (2) unlawful detainer damages, (3) $62,163 in attorney fees,

and (4) costs. The superior court awarded WA-Holdings double rent for August 1 to


      2
         This motion later was rejected by the Walla Walla Superior Court and this court
dismissed an effort to appeal from that ruling. Snake River then filed a similar motion in
the Pierce County Superior Court in February 2018.
      3
       Delays in obtaining necessary permits allegedly made it difficult for Snake River
to move in a timely fashion.

                                            3
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


October 6, 2017, as well as attorney fees in the sum of $55,000 and costs. The court

trimmed some of the fee request as duplicative, but did not enter detailed findings.

       After its motion for reconsideration was denied, Snake River appealed to this

court. A panel heard the case without oral argument.

                                        ANALYSIS

       This appeal presents questions concerning the trial court’s authority to enter the

writ of restitution, its damage award for unpaid rent, whether attorney fees were properly

assessed in the trial court, and if they should be ordered in this court. We briefly consider

the authority issue before turning to the rent damages. We then combine the two attorney

fee issues.

       Writ of Restitution

       Snake River first contends that the Walla Walla Superior Court lacked authority to

entertain the damages request because of its pending motion in Pierce County to

determine whether WA-Holdings had complied with its obligations under the settlement

agreement. The trial court properly determined that the stipulation and subsequent stay

were the governing documents.

       The short answer to this argument is that the settlement agreement preceded the

stipulation of the parties in the Walla Walla case. The stipulation, which was prepared on

Snake River’s counsel’s pleading paper, does not reference the settlement agreement and

does not incorporate it. The Settlement does not prohibit the parties from entering future

                                             4
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


stipulations or orders. Indeed, it appears that the stipulation was entered in order to

effectuate provision 13 of the Settlement. CP at 765.

       The trial court correctly declined to ignore its previous order. There was no basis

for believing that the Settlement controlled the pending writ of restitution. The trial court

had authority to act on the order before it.

       This contention is without merit.

       Rent Damages

       Snake River next contends that the trial court erred in calculating the damage

award for the failure to pay rent. We agree. The rent paid to WA-Holdings through the

court was not “rent due.”

       At issue is the statute providing for judgment in cases of unlawful detainer, RCW

59.12.170. The pertinent sentence provides:

       The jury, or the court, if the proceedings be tried without a jury, shall also assess
       the damages occasioned to the plaintiff by any forcible entry, or by any forcible or
       unlawful detainer, alleged in the complaint and proved on the trial, and, if the
       alleged unlawful detainer be after default in the payment of rent, find the amount
       of any rent due, and the judgment shall be rendered against the defendant guilty of
       the forcible entry, forcible detainer, or unlawful detainer for twice the amount of
       damages thus assessed and of the rent, if any, found due.

(Emphasis added.) Our courts long have interpreted this statute to allow for the doubling

of unpaid rent. E.g., Sprincin King St. Partners v. Sound Conditioning Club, Inc., 84 Wn.




                                               5
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


App. 56, 63-65, 925 P.2d 217 (1996) (citing cases); Queen v. McClung, 12 Wn. App.

245, 247-248, 529 P.2d 482 (1974).4

       The problem here is a simple one. There was no “rent due” for August and

September 2017. Pursuant to the terms of the stay of the stipulated order for restitution,

rent would be paid to the court by the 18th of each month and then forwarded to WA-

Holdings. CP at 623. The rent was paid for both August and September in accordance

with the order. There was no basis for finding any unpaid rent for those months. WA-

Holdings argues that the rent should be doubled to discourage tenants from failing to

vacate. The statute, however, provides for the doubling of unpaid rent, not the doubling

of all rent that resulted from the tenant holding over. The statute permits a landlord to

recover double for other damages that might have been incurred, but it only doubles rent

that was not paid. We do not rewrite statutes.

       The trial court, therefore, erred in doubling rent damages for the months of August

and September. The court correctly calculated and doubled the unpaid rent for the six

days of October. We reverse the judgment and direct that the court strike the $50,000 in

doubled rent for the months of August and September.




       4
         Sprincin disagrees with Queen on whether the doubling applies to unpaid rent
arising before the tenancy became unlawful. See 84 Wn. App. at 64-65. This case does
not present that controversy and we need not comment on it.

                                             6
No. 35951-4-III
WA-Holdings-01, LLC v. Snake River Stills, LLC


       Attorney Fees

       Snake River also challenges the $55,000 in attorney fees awarded to WA-Holdings

by the trial court, arguing that the amount was unreasonable because it included

duplicative expenses unrelated to the stipulated order. We conclude that the trial court

did not abuse its discretion. Both parties also seek attorney fees on appeals. We

conclude that there is no substantially prevailing party and decline to award attorney fees

on appeal to either side.

       Our case law recognizes the settled nature of appellate review of attorney fee

rulings. “In Washington, a party may recover attorney fees only when a statute, contract,

or recognized ground of equity permits recovery.” Bloor v. Fritz, 143 Wn. App. 718,

746-747, 180 P.3d 805 (2008). “Whether a party is entitled to an award of attorney fees

is a question of law that we review de novo.” Id. at 747. “Whether the fee award is

reasonable is a matter of discretion for the trial court, which we will alter only if we find

an abuse of discretion.” Id. Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971).

       Attorney fees are available on appeal where granted by applicable law. RAP 18.1.

Fees may be awarded to the prevailing party in a lease or contract dispute even if the

agreement only awards fees to one side. RCW 4.84.330. This court retains discretion



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WA-Holdings-01, LLC v. Snake River Stills, LLC


whether to grant attorney fees on appeal. MacKenzie v. Barthol, 142 Wn. App. 235, 242,

173 P.3d 980 (2007).

       Here, the settlement agreement provided for attorney fees to the prevailing party in

an action arising from the agreement. CP at 764. Similarly, the property lease purported

to award reasonable attorney fees to the landlord due to an action to enforce the lease.

CP at 759. By operation of RCW 4.84.330, that provision is made mutual. WA-

Holdings sought attorney fees in the trial court in the sum of $62,163 and costs of nearly

$3,200. CP at 745, 870. The trial court awarded a total of $55,000 in attorney fees and

$697.51 in costs. CP at 870.

       Snake River takes issue with the substantive outcome of the attorney fee ruling,

arguing that the downward revision from the requested sum still included work on the

unrelated issue of the enforcement of the settlement agreement. This is a curious

argument given that Snake River was the one to put the enforcement of the Settlement

before the Walla Walla Superior Court and did so in the context of challenging the

attempted eviction. CP at 221-225, 241-267. Having put the issue before the court,

Snake River can hardly complain that the trial judge awarded some fees to WA-Holdings

for having to contest the matter.

       Whether this was an appropriate cost was a discretionary call for the trial judge

who had a much better understanding of the interplay of the Settlement and the

stipulation than the members of this court could have. The trial court also gave the fee

                                             8
No. 35951-4-III
WA-Holdings-OJ, LLC v. Snake River Stills, LLC


request a critical review, trimming more than 10 percent off the requested figure by

removing duplicative or unnecessary billing.

       In light of the intertwining of the issues being fought in both Walla Walla and

Pierce counties, as well as the trial court's care in assessing which fee requests were

reasonably related to the litigation at hand, there was a tenable basis for the attorney fee

award. There was no abuse of discretion.

       We decline to award attorney fees on appeal because there is no substantially

prevailing party. Snake River has reduced the judgment against it by $50,000, but has

failed in its attempt to overturn the entire ruling. WA-Holdings has prevailed on the

merits, but seen its judgment halved. Given these circumstances, we deem neither side

the prevailing party. Both parties will bear their own costs on appeal. RAP 14.l(c).

       Affirmed in part, reversed in part.

       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.




WE CONCUR:




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