IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

BTNA LLC, a Washington limited 

liability company, 

Respondent, 

V. 

FORMOSA BROTHERS 

INTERNATIONAL LLC, a Washington 

limited liability company; FU MEI CHU, 

an individual; and JIH-CHENG CHU and 

LIHUI CHU, husband and wife, 

Appellants 

No. 75212-0-1 

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; DIVISION ONE °-~;~ 

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FILED: June 26, 2017 

Cox, J. — Where a landlord takes a voluntary nonsuit under CR 41(a) in 

an unlawful detainer proceeding, the tenant is the "prevailing party" under the 

terms of the parties' lease.' BTNA LLC took a voluntary nonsuit under CR 41(a) 

in this unlawful detainer proceeding against Formosa Brothers International LLC. 

But the trial court awarded reasonable attorney fees to BTNA as the "prevailing 

party" under the parties' sublease. Because this was incorrect, we reverse and 

remand with directions. 

1 Hawk v. Branjes, 97 Wn. App. 776, 781, 986 P.2d 841 (1999); Walji v. 

Candyco, Inc., 57 Wn. App. 284, 288, 787 P.2d 946 (1990). 
No. 75212-0-1/2 

This is a commercial unlawful detainer action based on RCW 59.12.010 et 

se~c . Formosa Brothers operates a restaurant and subleases the premises from 

BTNA. After Formosa Brothers allegedly failed to pay rent, BTNA attempted to 

serve Formosa Brothers with a three-day notice to pay rent or surrender the 

premises. Thereafter, BTNA commenced this commercial unlawful detainer 

action and sought a writ of restitution at a show cause hearing. Formosa 

Brothers moved to dismiss this action, arguing that the service of the three-day 

pre-litigation notice was improper. 

On April 12, 2016, at the show cause hearing, the trial court denied, 

without prejudice, BTNA's motion for a writ of restitution. It based this decision, 

in part, on BTNA's failure to properly serve Formosa Brothers with the three-day 

pre-litigation notice. The trial court also denied Formosa Brothers' motion to 

dismiss, orally stating that dismissal "would be a needless waste -- expense." 

The parties represented to this court that BTNA then served a new threeday notice, and Formosa Brothers paid the amounts due. On April 19, 2016, the 

trial court granted BTNA's motion for voluntary dismissal under CR 41(a). But 

this order did not address either attorney fees or costs. Formosa Brothers has 

not appealed this order. 

On May 10, 2016, the trial court entered its Order Granting Plaintiff's 

Motion for Attorney Fees and Costs in favor of BTNA. This order was based on a 

"prevailing party" provision in the parties' sublease. 

Formosa Brothers timely appealed this order on May 12, 2016. The notice 

of appeal only designates the May 10, 2016 order, nothing else. 

OA 
No. 75212-0-1 /3 

ATTORNEY FEES AND COSTS 

Formosa Brothers argues that the attorney fees award must be reversed. 

We agree. 

Notice of Appeal 

Neither party disputes that the May 12, 2016 notice of appeal timely brings 

before this court the only order designated in that notice: the Order Granting 

Plaintiff's Motion for Attorney Fees and Costs. This ruling held that BTNA was 

the "prevailing party" under.the sublease with Formosa Brothers. This ruling is 

contrary to Washington law. 

"[A] trial court may grant attorney fees only if the request is based on a 

statute, a contract, or a recognized ground in equity.112 

We review de novo the legal basis for an attorney fee award.3 

Here, Formosa Brothers challenges the basis for the attorney fee award in 

the May 10, 2016 order. Thus, the focus of our analysis is on that order. 

Prevailing Party 

Formosa Brothers argues that it was the prevailing party under the terms 

of the sublease with BTNA. Accordingly, it argues that the trial court improperly 

awarded BTNA attorney fees. We agree. 

The sublease between the parties provides: 

If [Formosa Brothers] or [BTNA] engage the services of an 

attorney to collect monies due or to bring any action for any relief 

2 Gander v. Yeager, 167 Wn. App. 638, 645, 282 P.3d 1100 (2012). 

3 In re Estate of Langeland v. Drown, 195 Wn. App. 74, 82, 380 P.3d 573 

(2016), review denied sub nom., Estate of Langeland, 187 Wn.2d 1010 (2017). 

3 
No. 75212-0-1/4 

against the other, declaratory or otherwise, arising out of this 

Sublease, including any suit by [BTNA] for the recovery of Rent or 

other payments, or possession of the Premises, the losing party 

shall pay the prevailing party a reasonable sum for attorneys' fees 

in such suit in mediation or arbitration, at trial, on appeal and in 

any bankruptcy proceeding. 

141 

The issue in this case is whether BTNA or Formosa Brothers is the 

"prevailing party" under the circumstances of this case. 

A defendant prevails when a plaintiff obtains a voluntary dismissal under 

CR 41(a).5Walji v. Candyco, Inc.6is instructive. There, Queen Anne Group, the 

landlord, sought enforcement of a commercial lease against Candyco, Inc. in a 

commercial unlawful detainer proceeding.7 Thereafter, Queen Anne Group 

moved for a voluntary dismissal without prejudice under CR 41(a).$ The trial 

court granted the motion and awarded Candyco, the tenant, attorney fees 

according to the prevailing party provision in the lease.9The lease provided: 

"If by reason of any default on the part of [Candyco] it becomes 

necessary for the [Queen Anne Group] to employ an attorney, or in 

case [Queen Anne Group] shall bring suit to recover any rent due 

4Clerk's Papers at 24 (emphasis added). 

5Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 865-68, 505 P.2d 

790 (1973); Housing Auth. of City of Seattle v. Bin, 163 Wn. App. 367, 377, 260 

P.3d 900 (2011); Council House. Inc. v. Hawk, 136 Wn. App. 153, 159-60, 147 

P.3d 1305 (2006); Hawk, 97 Wn. App. at 781; Walii, 57 Wn. App. at 288; Soper 

v. Clibborn, 31 Wn. App. 767, 769-70, 644 P.2d 738 (1982). 

657 Wn. App. 284, 288, 787 P.2d 946 (1990). 

' Id. at 286. 

$ Id. 

9Id. 

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No. 75212-0-1/5 

hereunder, or for breach of any provision of this lease, or to recover 

possession of the lease premises, or if [Candyco] shall bring any 

action for any relief against [Queen Anne Group], declaratory or 

otherwise, arising out of this lease, then and in any of such events, 

the prevailing party shall be entitled to a reasonable attorneys' fee 

and all costs and expenses expended or incurred in connection 

with such default or action."1101 

Queen Anne Group appealed, arguing that Candyco could not be a 

prevailing party under RCW 4.84.330, which defines a prevailing party as one "'in 

whose favor [a] final judgment is rendered."''' It also argued that this statutory 

definition must be used when interpreting the fee provision in the lease. 

This court affirmed, explaining that "[a]t the time of a voluntary dismissal, 

the defendant has 'prevailed' in the commonsense meaning of the word. ... 

There is no reason to believe that the parties intended to incorporate [into the 

lease] this statutory definition, which is not even the usual legal definition."12 

This court followed this reasoning in Hawk v. Branjes,13where a landlord 

voluntarily dismissed a breach of contract case it commenced against the 

tenants. This court affirmed the trial court's award of attorney fees to the tenants 

in accordance with the "successful" party attorney fee provision in the lease.14 

Here, after Formosa Brothers allegedly failed to pay rent, BTNA attempted 

service of the three-day pre-litigation notice and then commenced this unlawful 

10Id. at 287 (emphasis added). 

11 Id. (quoting RCW 4.84.330). 

12Id. at 288. 

1397 Wn. App. 776, 778, 986 P.2d 841 (1999). 

14 Id. at 778-79. 

5 
No. 75212-0-1/6 

detainer action, seeking a writ of restitution and damages. After serving a new 

three-day notice, it obtained from Formosa Brothers all amounts due. Thereafter, 

BTNA moved to voluntarily dismiss the case without prejudice based on CR 

41(a). The trial court granted BTNA's motion on this basis. 

Under the Washington case law that we just discussed, this dismissal 

made Formosa Brothers, the defendant, the prevailing party under the sublease. 

The tenant prevailed because BTNA obtained a voluntary nonsuit under CR 

41(a). 

BTNA relies on 4105 1st Avenue South Investments, LLC v. Green Depot 

WA Pacific Coast. LLC15to support its argument that it was the prevailing party 

below. That case is distinguishable and does not control this outcome. 

There, 1st Avenue South, the landlord, commenced a commercial 

unlawful detainer action against Green Depot, the tenant, and requested a writ of 

restitution.161 st Avenue South also commenced a separate breach of contract 

action against Green Depot for the past due rent, damages, and attorney fees 

and costs under the lease.17 

Green Depot denied owing past due rent at the show cause hearing on 

the writ of restitution, and the trial court set the matter for an expedited trial.18 

15 179 Wn. App. 777, 780, 321 P.3d 254 (2014). 

1s Id. 

17 Id. at 785. 

'$ Id. at 786. 

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No. 75212-0-1/7 

Green Depot later stipulated that it would vacate the premises by the end of the 

lease term.19 

Green Depot then moved for attorney fees, claiming it prevailed because it 

successfully defended against the issuance of a writ of restitution.20The trial 

court denied Green Depot's motion.21 

On appeal, this court rejected Green Depot's argument. The court noted 

that a show cause hearing "'is not the final determination of the rights of the 

parties in an unlawful detainer action.1"22It further agreed with the trial court that 

the disputes regarding past due rent, damages, and fees would be resolved in 

the separate pending breach of contract action.23 

In distinguishing Walii and Hawk, which we discussed earlier in this 

opinion, this court concluded in Green Depot that the case before it did not leave 

the parties in the position "'as if the action had never been brought."'24The then 

pending separate action on the lease was to determine the question of fees. 

19Id. 

20Id. at 782. 

21 Id. at 783. 

22 Id. at 786 (quoting Carlstrom v. Hanline, 98 Wn. App. 780, 788, 990 

P.2d 986 (2000)). 

23 Id. 

24 Id. at 787 (quoting Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 

481, 492, 200 P.3d 683 (2009)). 

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No. 75212-0-1/8 

Accordingly, this court affirmed the trial court's denial of Green Depot's motion for 

attorney fees as the prevailing party.25 

Green Depot is distinguishable for two reasons. First, there is nothing in 

the opinion to establish that 1 st Avenue South obtained a dismissal under CR 

41(a).26Thus, the case appears to be an exception to the general rule stated in 

Walii and Hawk. Second, there was a separate breach of contract action against 

Green Depot for the past due rent, damages, and attorney fees and costs under 

the lease.27Here, there is no such separate action. The question of fees was 

resolved by the trial court in this unlawful detainer proceeding. 

The general rule on award of attorney fees when there is a CR 41(a) 

dismissal by a landlord under these circumstances controls. BTNA's reliance on 

Green Depot is misplaced. 

BTNA also argues that it prevailed based on a United States Supreme 

Court case dealing with the federal Civil Rights Act.28Why this federal case 

controls Washington law on the question of attorney fees in a commercial 

unlawful detainer action is left unexplained. We need not address the Supreme 

Court case any further. 

25 1d. 

26 See id. at 782-83. 

27Id. at 785. 

28 BTNA's Response Brief at 12 (quoting Lefemine v. Wideman, 568 U.S. 

1, 11, 133 S. Ct. 9, 11, 184 L. Ed. 2d 313 (2012)). 

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No. 75212-0-1/9 

BTNA argues for the first time on appeal that a prevailing party is the one 

that substantially prevails.29The record does not show that it made this 

argument below. Thus, we need not consider this argument.30 

Accordingly, we reverse the trial court's award of attorney fees to BTNA 

and remand with directions for the trial court to award reasonable attorney fees to 

Formosa Brothers, the prevailing party under the sublease for the proceedings 

below. The amount of such an award must be properly supported by findings of 

fact and conclusions of law, as Mahler v. Szucs31 and other cases require. 

On Appeal 

Both parties,request attorney fees on appeal. We award fees to Formosa 

Brothers. The amount of such fees shall also be determined by the trial court on 

remand.32 

Here, the plain words of the sublease that we previously quoted also 

require the award of fees on appeal. Formosa Brothers also prevails on appeal. 

Based on RAP 18.9, BTNA requests fees "as an appropriate sanction" 

due to the fees it incurred in bringing and defending its motion to modify this 

court's ruling. There is no conduct subject to sanction, and fees are simply not 

appropriate on this basis. 

29Id. at 16. 

30 See RAP 2.5(a). 

31 135 Wn.2d 398, 435, 957 P.2d 632 (1998). 

32 RAP 18.1(i). 

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No. 75212-0-1/10 

BTNA also requests fees as the prevailing party if this court grants its 

motion to modify this court's ruling. Because this motion is moot, we deny this 

request. 

Costs 

Neither party separately argues the awardability of costs either below or 

on appeal. But the lease provision, which we previously quoted in this opinion, 

supports the award of costs to Formosa Brothers for trial and appeal. It is so 

ordered. 

MOTION TO MODIFY 

The question in BTNA's motion to modify the commissioner's ruling is 

"whether the April 12, 2016 [Order on Show Cause Re Writ of Restitution] is 

within [this court's] scope of review." Because we reverse the May 10, 2016 

order awarding fees and costs to BTNA as the prevailing party, there is no need 

to address this question. The motion to modify is moot. 

We reverse the Order Granting Plaintiff's Motion for Attorney Fees and 

Costs. We remand with directions to the trial court to award reasonable attorney 

fees and costs for trial and appeal to Formosa Brothers. The award shall be 

supported, as appropriate, with findings of fact and conclusions of law. 

► 

WE CONCUR: 

10