            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


JUSTIN BLOCH,                                    )        No. 79512-1-I
                                                 )
                        Respondent,              )
                                                 )        DIVISION ONE
                        v.                       )
                                                 )
KATHLEEN BLOCH,                                  )        UNPUBLISHED OPINION
                                                 )
                        Appellant.               )
                                                 )

        MANN, C.J. — Kate Bloch appeals the trial court’s order denying attorney fees in

her dispute against her former husband, Justin Bloch. 1 Kate contends that the trial

court erred in declining to award her attorney fees for successfully defending against

Justin’s statutory waste claim under RCW 64.12.020. We agree and remand to the trial

court to award Kate her costs and attorney fees.

                                                     I.

        Kate and Justin were married in 1997, but their marriage was dissolved in 2000. 2

Prior to their marriage, Justin purchased his home at 1555 Broadway East in Seattle.


        1 We refer to the parties by their first names in order to avoid confusion. We also use “Kate”

instead of “Kathleen” because that is the name used by her counsel in briefs before this court. No
disrespect is intended.
        2 The facts are derived from the trial court’s unchallenged findings of fact.




          Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79512-1-I/2


The house was awarded to Justin in the dissolution. The house is 7,000 to 8,000

square feet and had been featured in magazines such as Seattle Homes & Lifestyle for

its unique architecture and design.

      After living apart from Justin for several years following their dissolution, Kate

moved into the home in the fall of 2012. Kate remained in the home continuously until

January 2016. Kate and Justin did not live and interact like a married couple. Justin

intermittently asked Kate to move out of the home. While it is unclear whether he

expressed this desire prior to the end of 2015, by the beginning of 2016 Justin clearly

and consistently expressed his desire that Kate move out. Kate moved to Idaho from

January 4, 2016, until May 13, 2016.

      At some point after 2005, the home deteriorated from its original state. In 2012,

Justin began using methamphetamine daily for several years in or near the home. As a

result of Justin’s daily methamphetamine use, the interior surfaces of the home and the

furniture, furnishing, appliances, and personal effects inside were contaminated with

methamphetamine residue. Experts at trial testified that items contaminated by

methamphetamine must be discarded because decontamination is near impossible.

Further, wood tends to be porous and is hard to decontaminate and there was wood

throughout the entire home.

      From January 4, 2016, to May 13, 2016, Justin lived in the home, while Kate

lived in Idaho. During this time, many people came and went from the home at all times

of the day and night. Michelle Wheeler, a friend of Justin’s, appeared to both reside in

and deal drugs from the home. Another friend of Justin’s, Steven Morris-Ridge, also

lived in the home for some time during this period.

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      Kate moved back into the home in May 2016, and lived there until June 29, 2017.

During this time, she attempted to repair and make aesthetic improvements to the

home, including repairing the exterior stucco. While done with the intention of mitigating

damage, Kate’s efforts further damaged the home. Justin also significantly damaged

the home.

      Justin filed an unlawful detainer action in June 2017 and Kate moved out at the

end of June. After Kate filed her answer and affirmative defenses, Justin converted his

action to one for damages.

      Justin pursued five causes of action against Kate at trial: (1) breach of contract

for failure to pay rent between May 20, 2017, and June 29, 2017, (2) unjust enrichment

for occupying the home from May 7, 2014, until May 20, 2017, (3) statutory waste under

RCW 64.12.020 for damage while Kate was a tenant, 3 (4) statutory waste under RCW

4.24.630 for damage while Kate was a trespasser, 4 and (5) conversion for taking or


      3   RCW 64.12.020 addresses waste by a guardian or tenant:

               If a guardian, tenant in severalty or in common, for life or for years, or by
      sufferance, or at will, or a subtenant, of real property commit waste thereon, any person
      injured thereby may maintain an action at law for damages therefor against such
      guardian or tenant or subtenant; in which action, if the plaintiff prevails, there shall be
      judgment for treble damages, or for fifty dollars, whichever is greater, and the court, in
      addition may decree forfeiture of the estate of the party committing or permitting the
      waste, and of eviction from the property. The judgment, in any event, shall include as
      part of the costs of the prevailing party, a reasonable attorney's fee to be fixed by the
      court. But judgment of forfeiture and eviction shall only be given in favor of the person
      entitled to the reversion against the tenant in possession, when the injury to the estate in
      reversion is determined in the action to be equal to the value of the tenant's estate or
      unexpired term, or to have been done or suffered in malice.

      4   RCW 4.24.630 addresses liability for damage to land and property by a trespasser:

               (1) Every person who goes onto the land of another and who removes timber,
      crops, minerals, or other similar valuable property from the land, or wrongfully causes
      waste or injury to the land, or wrongfully injures personal property or improvements to
      real estate on the land, is liable to the injured party for treble the amount of the damages
      caused by the removal, waste, or injury. For purposes of this section, a person acts

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damaging personal property, including Justin’s 1991 Lotus X180R. Kate raised three

counterclaims against Justin: (1) breach of contract for failure to make payments to Kate

under a separation contract, (2) unjust enrichment for Kate’s labor and expenses in

maintaining and repairing the home, and (3) conversion for selling a massage chair that

Justin gifted her.

       After a bench trial, the trial court entered findings of fact and conclusions of law

on November 28, 2018. The court found that Kate was a tenant at will from September

2012 until January 2016. The court concluded that there was no rental agreement for

that period, therefore Justin failed to prove his claim for rent under an unjust enrichment

theory. The court also concluded that Kate was not responsible for damage and

disrepair to the home during that time period.

       For the period from May 13, 2016, through June 29, 2017, the trial court found

that Kate had no right to be in the home and lived there continuously and without

permission. The court found that Kate was liable for damages to the home during that

period under an intentional trespass theory for $4,115. The court trebled these

damages under RCW 4.24.630 to $12,345. The court also found that Kate was unjustly

enriched during that period at the rate of $1,000 per month for rent, totaling $13,548 for

Justin’s unjust enrichment claim. The total judgment against Kate to Justin was




       "wrongfully" if the person intentionally and unreasonably commits the act or acts while
       knowing, or having reason to know, that he or she lacks authorization to so act. Damages
       recoverable under this section include, but are not limited to, damages for the market
       value of the property removed or injured, and for injury to the land, including the costs of
       restoration. In addition, the person is liable for reimbursing the injured party for the party's
       reasonable costs, including but not limited to investigative costs and reasonable
       attorneys' fees and other litigation-related costs.

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No. 79512-1-I/5


$25,893. The court concluded that Justin was the prevailing party and awarded

attorney fees to the extent there was a statutory, contractual, or equitable basis.

         Kate moved for reconsideration, asking the court to “clarify who is the prevailing

party for the two statutory claims that authorize award of attorney fees and costs, versus

award of statutory costs for the case as a whole” and to find that RCW 4.24.630 did not

authorize an attorney fee award in favor of Justin. Kate argued that the “prevailing

party” can “differ between (a) award of statutory costs under RCW 4.84.030 to the

prevailing party in an action as a whole, and (b) award of reasonable attorney fees and

costs under statutes relating only to specific causes of action, such as RCW 64.12.020

and RCW 4.24.630” and the court erred because it only awarded fees in the action as a

whole.

         The court granted in part and denied in part Kate’s motion for reconsideration.

The court concluded that Justin failed to prove waste under RCW 64.12.020. The court

also struck the award to Justin for waste under RCW 4.24.630 finding that:

         From May 13, 2016 through June 29, 2017, most of Ms. Bloch’s attempts
         to repair the [h]ome constituted mitigation. Ms. Bloch’s efforts to repair
         and maintain the home, even though they caused some minor damage
         described in Mr. Showalter’s testimony, were not “wrongful” within the
         meaning of RCW 4.24.630. The damage was not intentional or
         unreasonable. Consequently, Mr. Bloch has no right to relief under RCW
         4.24.630.

         After the trial court’s order on reconsideration, the only remaining award in

Justin’s favor was $13,548 for unpaid rent. The order granting reconsideration

explained that “[a]s both parties have prevailed on major claims, neither party is the

substantially prevailing party pursuant to RCW 4.84.010. Consequently, the Court is not

awarding attorney’s fees for either party.”

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        Kate appeals the denial of attorney fees.

                                                     II.

        Kate seeks reversal of the trial court’s conclusion of law on reconsideration that

both parties prevailed on major claims, therefore neither was a prevailing party under

RCW 4.84.010. She argues that because she prevailed in defending against Justin’s

claims for statutory waste under RCW 64.12.030, that she is entitled to fees under that

statute. 5 We agree.

        “Whether a party is entitled to an award of attorney fees is a question of law and

is reviewed on appeal de novo.” Durland v. San Juan County, 182 Wn.2d 55, 76, 340

P.3d 191 (2014). In general, attorney fees are not available as a cost of litigation unless

authorized by contract, statute, or recognized ground of equity. Durland, 182 Wn.2d at

76.

                                                     A.

        RCW 64.12.020 allows a landlord to recover damages for waste caused by his or

her tenant.

                If a guardian, tenant in severalty or in common, for life or for years,
        or by sufferance, or at will, or a subtenant, of real property commit waste
        thereon, any person injured thereby may maintain an action at law for
        damages therefor against such guardian or tenant or subtenant; in which
        action, if the plaintiff prevails, there shall be judgment for treble damages,
        or for fifty dollars, whichever is greater, and the court, in addition may
        decree forfeiture of the estate of the party committing or permitting the
        waste, and of eviction from the property. The judgment, in any event,
        shall include as part of the costs of the prevailing party, a reasonable
        attorney’s fee to be fixed by the court.


         5 In her opening brief before this court, Kate argued that she should be entitled to attorney fees

under either RCW 4.23.630 and RCW 64.12.030 because she prevailed in defending against both of
Justin’s statutory waste claims. In her reply, however, she concedes that RCW 4.24.630 is a “one-way”
statute that only awards fees to a successful plaintiff.

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No. 79512-1-I/7


RCW 64.12.020 (emphasis added). 6

       Kate contends that as the prevailing party, she is entitled to her reasonable

attorney fees in defending against Justin’s claims under RCW 64.12.020. Justin

contends that RCW 64.12.020 cannot provide attorney fees to a defendant because

only a plaintiff can receive a judgment for waste against a defendant and not vice versa.

The plain language of the statute supports Kate’s argument.

       We look first to the plain language of a statute. If the language is unambiguous,

we rely solely on the statutory language. State v. Roggenkamp, 153 Wn.2d 614, 621,

106 P.3d 196 (2005). While the statute provides treble damages to the plaintiff if they

prevail on their claim for damages, it also provides that “the judgement, in any event,

shall include as part of the costs of the prevailing party, a reasonable attorney’s fee to

be fixed by the court.” RCW 64.12.020 (emphasis added). The statute uses “plaintiff”

when describing damages, but uses “prevailing party” when describing the costs and

attorney fees. The change from plaintiff to prevailing party indicates that the prevailing

party may be the defendant. “When the legislature uses different words within the same

statute, we recognize that a different meaning is intended.” State v. Beaver, 148 Wn.2d

338, 343, 60 P.3d 586 (2002).

       Kate was the prevailing party under RCW 64.12.020 after the trial court’s order

on reconsideration. The trial court revised its judgment on reconsideration and clarified

that Justin failed to prove waste under RCW 64.12.020. Kate successfully defended

against Justin’s waste claim. Therefore, Kate is the prevailing party. The award of fees

under RCW 64.12.020 is mandatory. We conclude that the trial court erred when it did

       6   Chapter 64 does not define prevailing party.

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No. 79512-1-I/8


not award attorney fees to Kate under RCW 64.12.020 as the prevailing party against

Justin’s claims for statutory waste.

                                            B.

       Justin contends that Kate did not prevail on the waste claim under RCW

64.12.020 because she was unable to prove that she was a tenant during the period

Justin alleged damages. Justin contends that he alleged Kate caused damage between

June 2016 and June 2017, and the court found that Kate was a tenant at will from

September 2012 to January 2016. Therefore, he argues, Kate cannot recover attorney

fees under RCW 64.12.020.

       The argument is not persuasive. Justin alleged waste under RCW 64.12.020,

requiring Kate to defend against the claim regardless of the alleged timeframe.

Furthermore, Justin did not allege specific dates for when he believed Kate was a

tenant versus a trespasser in his complaint.

                                            III.

       Kate requests an award for attorney fees on appeal under RCW 64.12.020.

“Where a statute allows an award of attorney fees to the prevailing party at trial, the

appellate court has inherent authority to make such an award on appeal.” Standing

Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 247, 23 P.3d 520 (2001). Kate

prevailed on appeal; therefore, we award her reasonable attorney fees.

       We reverse and remand to the trial court to enter an award of costs and attorney

fees for the portion of time spent by Kate defending against Justin’s waste claim under

RCW 64.12.020.



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No. 79512-1-I/9




WE CONCUR:




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