IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
COUNCIL HOUSE, INC., ) No. 57205-9-I
)
Respondent, )
)
v. )
)
JEANNE (LAUREN) HAWK, ) PUBLISHED OPINION
)
Appellant. ) FILED: December 11, 2006
)
ELLINGTON, J. The unlawful detainer statute allows the court to award
attorney fees to the prevailing party. Here, the tenant prevailed but the court denied
fees. Because the arguments for denying fees were legally untenable, we reverse
and remand.
BACKGROUND
Jeanne Hawk has lived at Council House, a living facility for seniors, since
2003. In June 2005, Council House filed a complaint for unlawful detainer, alleging
that Hawk violated her lease by disturbing her neighbors and acting rudely. Hawk
obtained representation by pro bono attorneys, and asserted defenses including
First Amendment rights to free expression. A team of attorneys spent about 200
hours preparing Hawk's defense, and both parties filed pretrial motions and long
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briefs. The trial date was continued, and after a hearing on September 23, the court
requested additional briefs on First Amendment issues raised by Hawk.
Five days later, Council House requested a CR 41(a)(1)(B) voluntary
dismissal without prejudice and without costs or attorney fees to either party. The
court granted the motion, and denied Hawk's motion to reconsider denial of fees.
Hawk appeals the denial of fees and costs, contending that RCW 59.18.290
mandates costs and fees to the prevailing party in an unlawful detainer action,
except for any fees related to a claim of retaliatory eviction, which is governed by
RCW 59.18.250. In the alternative, Hawk argues that if an award of costs and fees
under RCW 59.18.290 is discretionary, the court abused its discretion by denying
fees on grounds that her counsel were acting pro bono.
ANALYSIS
We must determine whether prevailing party fees under the Residential
Landlord-Tenant Act, chapter 59.18 RCW, are mandatory or discretionary. On
questions of statutory interpretation, review is de novo.1 "The primary goal in
statutory interpretation is to ascertain and give effect to the intent of the
Legislature."2 To determine legislative intent, we begin with the statute's plain
language and ordinary meaning.3 We examine each provision in relation to other
1 National Elec. Contr. Ass'n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481
(1999).
2 Id.
3 Id.
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provisions and seek a consistent construction of the whole.4 We will examine
sources beyond the statute and apply the rules of statutory construction only if the
statute is ambiguous.5
RCW 59.18.290 provides for prevailing party attorney fees:
(1) It shall be unlawful for the landlord to remove or exclude
from the premises the tenant thereof except under a court order so
authorizing. Any tenant so removed or excluded in violation of this
section may recover possession of the property or terminate the rental
agreement and, in either case, may recover the actual damages
sustained. The prevailing party may recover the costs of suit or
arbitration and reasonable attorney's fees.
(2) It shall be unlawful for the tenant to hold over in the
premises or exclude the landlord therefrom after the termination of the
rental agreement except under a valid court order so authorizing. Any
landlord so deprived of possession of premises in violation of this
section may recover possession of the property and damages
sustained by him, and the prevailing party may recover his costs of suit
or arbitration and reasonable attorney's fees.
Hawk acknowledges that the word "may" is ordinarily permissive, but
contends that here, it obliges the trial court to award costs and fees whenever the
prevailing party claims them, because the word "may" is used throughout the section,
and any other interpretation would render all the remedies (repossession,
termination of the rental agreement, damages) also discretionary. But we know of
no reason to conclude that the authorized remedies are mandatory, and we see no
absurdity in the presumptive interpretation that "may" means "may."
4 State v. Sommerville, 111 Wn.2d 524, 531, 760 P.2d 932 (1988).
5 State Dep't of Transp. v. State Employees' Ins. Bd., 97 Wn.2d 454, 458, 645
P.2d 1076 (1982).
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As Council House points out, we have already determined that the
Residential Landlord Tenant Act uses "may" in a permissive sense.6 Council House
also points to the parallel fee provision of the retaliatory eviction statute, which uses
the word "shall":
[W]here the tenant prevails upon his claim or defense that the landlord
has violated this section [prohibiting retaliatory eviction], the tenant
shall be entitled to recover his costs of suit or arbitration, including a
reasonable attorney's fee . . . .[7]
Where the legislature uses permissive language in one provision and mandatory
language in a similar, related provision, we presume the legislature intended
different results.8
We hold that an award of costs and attorney fees under RCW 59.18.290 is
discretionary.
A trial court abuses its discretion when its decision or order is manifestly
unreasonable, exercised on untenable grounds, or exercised for untenable reasons.9
Untenable reasons include errors of law.10
In its motion seeking voluntary dismissal, Council House stated that fees were
6 Hous. Auth. v. Pleasant, 126 Wn. App. 382, 390, 109 P.3d 422 (2005).
7 RCW 59.18.250 (emphasis added).
8 See State v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 10 -- 12, 43 P.3d 4
(2002); Scannell v. Seattle, 97 Wn.2d 701, 704, 648 P.2d 435 (1982).
9 State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
10 Estate of Treadwell v. Wright, 115 Wn. App. 238, 251, 61 P.3d 1214
(2003); In re Marriage of Lawrence, 105 Wn. App. 683, 686, 20 P.3d 972 (2001).
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not appropriate because "there is no statutory basis for attorney fees."11 This
assertion is wrong. The plain language of the unlawful detainer statute authorizes
fees to the prevailing party. Council House supported its position with the following
footnote: "The Defendant recently dismissed her claim for retaliation pursuant to
RCW 59.18.250, which would not have provided for fees in any event since
Defendant's lawyers are working pro-bono. Based on the procedural nature of
Defendant's pending motion, there is no other basis for fees."12
Two problems are immediately apparent. First, Hawk seeks fees not for the
retaliatory eviction claim, but for defending the unlawful detainer. As discussed
above, fees to the prevailing party in an unlawful detainer action are authorized by
RCW 59.18.290. Hawk is the prevailing party, because when a plaintiff takes a
voluntary dismissal, the defendant has prevailed for purposes of fees.13
Second, unless a statute expressly prohibits fee awards to pro bono
attorneys, the fact that representation is pro bono is never justification for denial of
fees.14 The Residential Landlord-Tenant Act prohibits fees to pro bono attorneys
only on unlawful retaliation claims.15 Nothing in the act prohibits fees to pro bono
11 Clerk's Papers at 611.
12 Id. (citations omitted).
13 Hawk v. Branjes, 97 Wn. App. 776, 782, 986 P.2d 841 (1999); Walji v.
Candyco, Inc., 57 Wn. App. 284, 288, 787 P.2d 946 (1990).
14 Blair v. Washington State University, 108 Wn.2d 558, 571, 740 P.2d 1379
(1987) ("trial court abused its discretion in even considering the plaintiffs' public
interest representation"); Fahn v. Civil Service Com., 95 Wn.2d 679, 685, 628 P.2d
813 (1981).
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attorneys defending tenants in unlawful detainer actions. The court is to consider
"the fee customarily charged in the locality for similar legal services," not the amount
actually charged.16
The analysis in Andersen v. Gold Seal Vineyards, Inc.17 is apt. There the
plaintiff took a voluntary dismissal under CR 41(a)(1)(B). The defendant sought fees
under RCW 4.28.185, which awards fees to a defendant who is served personally
outside the state and "prevails" in the action. The court reasoned that defendants in
such circumstances have already expended time and money preparing the case, and
a CR 41 judgment shows that the plaintiff failed to prove his claim.18 Similarly here,
Hawk was required to prepare for trial, and Council House failed to prove its claim.
The fact that Hawk's attorneys represented her pro bono is irrelevant. If the
court denied fees on that basis, its decision was untenable.
In its footnote, Council House asserted one other ground for denying fees in
its footnote: "the procedural nature" of the CR 41 motion, citing to Housing Authority
of Everett v. Terry.19 But the issue in Terry was whether fees should be awarded
where the tenant elected to seek a court remedy before exhausting procedural
appeals, lost on the merits, then successfully appealed on jurisdictional grounds.20
15 RCW 59.18.250.
16 RCW 59.18.030(9).
17 81 Wn.2d 863, 505 P.2d 790 (1973).
18 Id. at 868.
19 114 Wn.2d 558, 789 P.2d 745 (1990).
20 Id. at 562 -- 65.
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The court declined to award fees.21
The procedural nature of Council House's motion for CR 41 dismissal bears
no discernable similarity to the Terry case. If Council House persuaded the court
that no party prevails in a CR 41 dismissal, again, the court made an untenable
decision.
Council House recouches this argument on appeal, contending that because
Hawk's attorneys were working pro bono, Hawk is not harmed by any error. As
discussed above, this argument ignores public policy.22
Council House finally argues that any fees to Hawk should be offset by fees
to Council House under the retaliatory eviction statute, RCW 59.18.250. But Council
House failed to request an award of fees when Hawk withdrew her retaliatory
eviction claim, so this argument has not been preserved.23 In any event, Council
House is not entitled to an offset. RCW 59.18.250 provides fee awards to tenants
who prevail on "their claim or defense that the landlord has violated this section,"
and awards a landlord his attorney fees when he "prevails upon his claim."24 Under
the plain meaning rule, the phrase "upon his claim" means the landlord must prevail
in the unlawful detainer action. Council House did not prevail, and sought dismissal
21 Id. at 571 ("One party should not be able to seek an affirmative result at trial
and, when disappointed, burden the other party with all the expenses.").
22 See Blair, 108 Wn.2d at 571.
23 RAP 2.5(a); Herberg v. Swartz, 89 Wn.2d 916, 925, 578 P.2d 17 (1978).
24 (Emphasis added).
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without fees to either party.
Under RCW 59.18.290, an award of fees is discretionary. But we are unable
to review the propriety of the decision here because nothing in the record reveals
the court's reason for denying fees, and the only arguments presented were
untenable. Given these circumstances, we must conclude that the court abused its
discretion.25
We reverse and remand for the court to exercise its discretion as to whether
Hawk should be awarded costs and attorney fees. Because Hawk prevailed in this
court, we award her fees on appeal.26
Reversed and remanded.
WE CONCUR:
25 Treadwell, 115 Wn. App. at 251 (trial court abused its discretion by granting
motion to vacate because neither ground put forth by defendant provided a legally
tenable basis for setting aside the judgment).
26 RAP 18.1; Landberg v. Carlson, 108 Wn. App. 749, 758, 33 P.3d 406
(2001).
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