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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FITNESS INTERNATIONAL, LLC, a 

California limited liability company,

Appellant,

v.

NATIONAL RETAIL PROPERTIES, 

LP, a Delaware limited liability 

company,

Respondent.

No. 84242-1-I

DIVISION ONE

PUBLISHED OPINION

MANN, J. — On March 16, 2020, Governor Jay Inslee issued the first of several 

public health orders directing all nonessential businesses, including gyms and fitness 

centers, to immediately cease operating to prevent the spread of the 2019 novel 

coronavirus (COVID-19). While the initial closure was lifted in August 2020, a second 

closure occurred between November 2020 and January 2021. Fitness International, 

LLC, operates an “LA Fitness” health and fitness club in Spanaway at a facility it leases 

from National Retail Properties, LP (National Retail). As a result of the closures, Fitness 

International sued National Retail for breach of lease and sought declaratory judgment 

based on the equitable doctrines of frustration of purpose and impossibility or 

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impracticability. Fitness International appeals the trial court’s order granting summary 

judgment and dismissing its claims. We affirm.

I.

As of March 2020, Fitness International owned and operated over 700 large 

health clubs in 27 states and the District of Columbia, including 28 in Washington. 

Most of the health clubs operated under the trade name “LA Fitness.” Fitness 

International has approximately five million active members. National Retail is a real 

estate investment trust that owns commercial properties nationwide. 

In July 2015, Fitness International brought in National Retail as a development 

partner, and they entered into a series of agreements relating to the acquisition, 

development, and leasing of a vacant 3.77 acre parcel in Spanaway, Washington 

(premises). Together the contracts formed a “reverse build-to-suit” transaction. 1 

Relevant here, under the development agreement, Fitness International agreed to 

develop the premises for a health and fitness facility that Fitness International would 

then lease from National Retail. Under a separate lease agreement, Fitness 

International agreed to lease the premises from National Retail for an initial term of 19 

years with 4 options to extend the term of the lease up to 40 years. 

The lease describes the uses allowed on the premises. “Initial uses” are for the 

“operation of a health club and fitness facility” which includes, “without limitation,” a long 

list of activities such as personal training, lessons, group classes, weight and aerobic 

training, youth instruction, and saunas. The lease also allows a long, nonexclusive list 

 1 The premises was initially owned by a third-party developer, Spanaway Village, L.P. Fitness 

International purchased the property from the developer, and then, under the “assignment and 

assumption of contract” agreement assigned all of its rights and obligations to the purchase to National 

Retail. 

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of “ancillary uses” that Fitness International can use the premises for, including uses 

such as tanning services, cosmetic treatments, child care facilities, food and beverage 

services, spa services, dry cleaning drop-off and pickup, car washing/detailing, shoe 

repair, and nutritional supplement sales. The lease leaves it to Fitness International’s 

business judgment to decide ancillary uses for the premises:

for such other use as Tenant may determine in Tenant’s reasonable 

business judgment, provided that such use: (i) is lawful; (ii) is in 

compliance with applicable environmental, zoning and land use laws and 

requirements; (iii) does not violate matters of record or restrictions

affecting the Premises; (iv) does not conflict with any other agreement to 

which Landlord is bound, of which agreement Tenant has received written 

notice, where such conflict would materially adversely affect Landlord; (v) 

would not have a material adverse effect on the value of the Premises; 

and (vi) would not result in or give rise to any material environmental 

deterioration or degradation of the Premises.

The development agreement allocated some risk and excused some 

performance for “Force Majeure Events.” The force majeure clause stated:

If either party is delayed or hindered in or prevented from the performance 

of any act required hereunder because of strikes, lockouts, inability to 

procure labor or materials, retraction by any governmental authority of the 

building permit, failure of power, restrictive laws, riots, insurrection, war, 

fire, inclement weather or other casualty or other reason of a similar or 

dissimilar nature beyond the reasonable control of the party delayed, 

financial inability excepted (each, a “Force Majeure Event”), the 

performance of such act shall be excused for the period of delay caused 

by Force Majeure Events.

The lease does not contain a similar force majeure clause. 

On March 16, 2020, Governor Inslee issued the first of several public health

orders directing all nonessential businesses, including gyms and fitness centers, to 

immediately cease operating to prevent the spread of the COVID-19 virus. On August 

10, 2020, the state permitted indoor clubs and gyms in Pierce County to operate under 

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restricted guidelines. Another COVID-19 closure period occurred from November 17, 

2020 to January 10, 2021. During these closure periods it was illegal for Fitness 

International to use the premises to operate a health club and fitness facility. In January 

2021, the public health orders abated and Fitness International resumed operations. 

National Retail requested full rental payments under the lease during the closure

periods. Fitness International paid its rent obligations from March 2020 through 

November 2020. On November 17, 2020, Fitness International sued National Retail in 

Pierce County Superior Court. It raised three causes of action for breach of lease: (1) 

breach of the representations, warranties, and covenants, (2) failure to provide credits 

under the lease, and (3) failure to abate rent. In its fourth cause of action, Fitness 

International sought a declaratory judgment that it was not obligated to pay rent during 

the closure periods based on equitable grounds of frustration of purpose, or

impracticability and/or impossibility. National Retail answered and counterclaimed for 

breach of lease and unjust enrichment seeking rent owed for December 2020 and 

January 2021. 

National Retail moved for summary judgment requesting (1) dismissal of Fitness 

International’s first three causes of action for breach of lease, (2) summary declaratory 

judgment against Fitness International as to its fourth cause of action, and (3) summary 

judgment for unpaid rent and prejudgment interest on National Retail’s counterclaim. 

After oral argument and supplemental briefing, the trial court granted summary 

judgment for National Retail. The court dismissed Fitness International’s three causes

of action for breach of lease. The court also dismissed Fitness International’s fourth 

cause of action for declaratory judgment but declared that its duty to pay rent was not 

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excused due to the public health orders. The court granted judgment for National Retail 

for unpaid rents. 

Fitness International appeals. 

II.

This is an appeal from an order granting summary judgment. Our review is de 

novo and we engage in the same inquiry as the trial court. Young v. Key Pharms., Inc., 

112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). Summary judgment is appropriate when 

there is no genuine issue of material fact and the moving party is entitled to judgment as 

a matter of law. CR 56(c); Young, 112 Wn.2d at 225. We construe the evidence and 

reasonable inferences in the light most favorable to the nonmoving party. Strauss v. 

Premera Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019).

A.

Fitness International argues that the trial court erred in dismissing its claims that 

National Retail breached the covenant of quiet enjoyment, and the duty to credit or 

abate rent paid during the pandemic. We disagree.

“The interpretation of a lease is a question of law that this court reviews de novo.” 

Bellevue Square, LLC v. Whole Foods Mkt. Pac. Nw., Inc., 6 Wn. App. 2d 709, 716-17, 

432 P.3d 426 (2018). Our primary goal is to determine the parties’ intent. Berg v.

Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990). We determine the parties’ 

intent by “focusing on the objective manifestation of the parties in the written contract.” 

Bellevue Square, LLC, 6 Wn. App. 2d at 716 (citing Hearst Commc’ns, Inc. v. Seattle

Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005).” “Accordingly, a court considers 

only what the parties wrote, giving words in a contract their ordinary, usual, and popular 

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meaning unless the agreement as a whole clearly demonstrates a contrary intent.”

4105 1st Ave. S. Invs., LLC v Green Depot WA Pac. Coast, LLC, 179 Wn. App. 777, 

784, 321 P.3d 254 (2014); Hearst, 154 Wn.2d at 503-04. “A contract ‘should be 

construed as a whole and, if reasonably possible, in a way that effectuates all of its 

provisions.’” Bellevue Square, LLC, 6 Wn. App. 2d at 717 (quoting Colo. Structures,

Inc. v. Ins. Co. of the W., 161 Wn.2d 577, 588, 167 P.3d 1125 (2007)). 

1.

We first address Fitness International’s claim that National Retail breached the

lease’s express covenant and warranty of quiet enjoyment. Fitness International’s claim 

fails as a matter of law for two reason: (1) the government, not National Retail, affected 

Fitness International’s possession and use of the premises; and (2) the lease excludes 

interference by government orders. 

The covenant of quiet enjoyment protects “the tenant from any wrongful act by 

the lessor which . . . interferes with the tenant’s quiet and peaceable use and enjoyment 

thereof.” Cherberg v. Peoples Nat’l Bank of Wash., 15 Wn. App. 336, 343, 549 P.2d 46 

(1976), rev’d on other grounds, 88 Wn.2d 595, 564 P.2d 1137 (1977); Hockersmith v. 

Sullivan, 71 Wash. 244, 247, 128 P. 222 (1912). The covenant is not breached when a 

third party, who is stranger to title, disturbs possession. 5 THOMPSON ON REAL PROPERTY

§ 41.03(c)(5)(3d Thomas ed. 2019); see also 15 SAMUEL WILLISTON & RICHARD A. LORD, 

A TREATISE ON THE LAW OF CONTRACTS § 48:10 (4th ed. 2014). 

While perhaps old, the Supreme Court’s decision in Hockersmith is instructive. 

There, the City of Seattle regraded a street and in doing so “render[ed] the [leased] 

premises inaccessible and of no value.” Hockersmith, 71 Wash. at 245. The tenants 

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sued the landlord for breach of the covenant of quiet enjoyment. Hockersmith, 71 

Wash. at 245. The trial court dismissed the claim and the Supreme Court affirmed, 

holding that the covenant “does not insure against third parties who are wrongdoers.” 

Hockersmith, 71 Wash. at 247. Because the landlord had nothing to do with the street 

work, the court held that if the City’s regrading was wrongful, the tenant’s remedy was 

against the City, not the landlord. Hockersmith, 71 Wn. at 247.

The same is true here. National Retail was not responsible for the public health 

orders and was powerless to prevent the government’s closure of nonessential 

businesses like fitness clubs. Fitness International’s claim is more appropriate against 

the government rather than its landlord. 

Furthermore, the lease explicitly excludes interferences caused by government 

orders. Section 27.2 of the lease specifically states that the covenant and warranty of 

quiet enjoyment is expressly subject to other provisions of the lease: 

Landlord covenants and warrants that Tenant shall have and enjoy full, 

quiet, and peaceful possession of the Premises, its appurtenances and all 

rights and privileges incidental thereto during the term, subject to the 

provisions of this Lease. 

One of the other provisions, section 9.2, requires Fitness International to comply 

with all use regulations and orders in effect during the tenancy:

Tenant, at Tenant’s sole expense, promptly shall comply with all 

applicable statutes, ordinances, rules, regulations, orders, covenants and 

restrictions of record, and requirements in effect during the term or any 

part of the term hereof, regulating the use by Tenant of the Premises.

Fitness International asks this court to ignore this interpretation because section 

9.2 does not reference the covenant of quiet enjoyment. But, we “view the contract as a 

whole, interpreting particular language in the context of other contract provisions.” 

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Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 713, 334 P.3d 116 

(2014). Read together, section 27.2’s “subject to the provisions of this Lease” language 

effectually incorporates section 9.2, limiting the scope of the covenant to exclude the 

effects of government regulations. Here, the government ordered the COVID-19 

shutdown that infringed on Fitness International’s enjoyment of its leased property. 

Fitness International agreed to abide by all government orders in section 9.2. Section 

27.2 incorporates section 9.2. An agreed upon covenant cannot now constitute a 

breach of quiet enjoyment. 

Fitness International argues that this interpretation contradicts Washington law 

because the court is required to “harmonize clauses” in the lease; interpreting section 

9.2 as an exemption to National Retail’s covenant conflicts with the broad, unqualified 

and sweeping covenant of section 27.2. But Fitness International reads out “subject to 

the provisions of this Lease.” Interpreting section 9.2 as an express covenant to abide 

by orders and agree it is not a breach of quiet enjoyment is a more harmonious 

interpretation than stating that Fitness International’s compliance with section 9.2 

creates a breach by National Retail. 

Alternatively, Fitness International argues that the inclusion of both the terms 

covenant and warranty in section 27.2 refer to different promises. We disagree.

First, any distinction is immaterial because both terms are subject to other 

provisions of the lease: 

Landlord covenants and warrants that Tenant shall have and enjoy full, 

quiet, and peaceful possession of the Premises, its appurtenances and all 

rights and privileges incidental thereto during the term, subject to the 

provisions of this Lease. 

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(Emphasis added). Thus, even if the terms meant different things, they are both still 

subject to other provisions of the lease, including section 9.2.

Further, the context of conveyances, “[the] covenant of warranty and covenant of 

quiet enjoyment are identical.” Rowe v. Klein, 2 Wn. App. 2d 326, 335, 409 P.3d 1152 

(2018) (citing W. Coast Mfg. & Inv. Co. v. W. Coast Imp. Co., 25 Wash. 627, 643, 66 P. 

97 (1901)). The assurance has taken the form of a covenant and warranty based on 

the nature of the persons against whom it applies:

The implied covenant of quiet enjoyment concerns the tenant’s 

possession of the leased premises. It is a covenant and warranty that the 

landlord, and individuals claiming under or through the landlord, will not 

wrongfully disturb the possession of the tenant, and that the tenant’s 

possession will not be disturbed by individuals with paramount title to the 

property. 

5 THOMPSON, supra, § 41.03(c)(1). The “covenant” is a promise that the lessor will not 

disturb the tenant’s possession while the “warranty” is a promise that no one with 

paramount title will disturb possession:

Pursuant to the implied covenant of quiet enjoyment, the landlord warrants 

that the tenant will not be disturbed in the possession by another other 

person with superior legal right to possession and protects the tenant from 

actual or constructive eviction by someone with superior title. Moreover, 

the landlord covenants not to evict the tenant himself, actually or 

constructively. 

49 AM. JUR. 2D Landlord and Tenant § 469 (2018) (footnotes omitted). In other words, 

the warranty protects the tenant from eviction by someone else with a superior title to 

the property while the covenant protects the tenant from eviction by the lessor. Neither 

protect against actions by third-party strangers, such as government regulation. 

National Retail did not breach the covenant of quiet enjoyment because it was 

not responsible for and powerless to stop the intervening event. 

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No. 84242-1-I/10

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2.

We next address Fitness International’s claim that National Retail breached 

contractual duties to credit or abate rent. “A breach of contract is actionable only if the 

contract imposes a duty.” NW. Indep. Forest Mfrs. V. Dep’t of Lab. & Indus., 78 Wn. 

App. 707, 712, 899 P.2d 6 (1995). The lease does not impose a duty for National Retail 

to credit or abate rent. 

To the contrary, the only discussion of a credit or abatement is in section 15 of 

the lease. Section 15 states: “Tenant is not entitled to any rent abatement during or 

resulting from any disturbance on or partial or total destruction of the Premises.” 

Moreover, section 5.2 requires Fitness International to pay rent “without prior notice, 

invoice, demand, deduction, or offset whatsoever.” Section 29.11 requires payment 

even in breach:

This Lease shall be construed as though the covenants herein between 

Landlord and Tenant are independent and not dependent and Tenant . . . 

agrees that if Landlord fails to perform its obligations set forth herein, 

Tenant shall not be entitled to make any repairs or perform any acts 

hereunder at Landlord’s expense or to any offset of the rent or other 

amounts owing hereunder against Landlord.

Looking at the terms of the lease, there is no requirement for National Retail to 

abate or credit rent without a separate action and finding that National Retail breached 

the lease agreement. The lease requires Fitness International to pay rent and does not 

include a provision that entitles Fitness International to rent abatement or credit. 

III.

Fitness International argues in the alternative that the trial court erred in granting 

summary judgment because it was entitled to declaratory judgment that it did not have

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to pay rent during the closure periods based on equitable grounds of frustration of 

purpose, or impracticability and/or or impossibility. We disagree.

At the outset, Fitness International argues that our review of the trial court’s 

dismissing its claim for declaratory judgment is subject to an abuse of discretion 

standard of review. In contrast, National Retail argues our review is de novo. Our 

Supreme Court recently resolved this conflict in Borton & Sons, Inc. v. Burbank Props, 

LLC, 196 Wn.2d 199, 205-07, 471 P.3d 871 (2020). The threshold question of “whether 

equitable relief is appropriate is a question of law that we review de novo.” Borton & 

Sons, 196 Wn.2d at 207. If equitable relief is available, whether the trial court properly 

fashioned the remedy is reviewed for abuse of discretion. Borton & Sons, 196 Wn.2d at 

206. Because the trial court concluded that equitable relief was unavailable, our review 

here is de novo.2 

A.

The doctrine of “discharge by supervening frustration” is recited in Restatement 

(Second) of Contracts § 265 (Am. L. Inst. 1981):

Where, after a contract is made, a party’s principal purpose is substantially 

frustrated without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was 

made, his remaining duties to render performance are discharged, unless 

the language or the circumstances indicate the contrary.” 

 2 National Retail argues that equitable remedies are unavailable as a matter of law because 

Fitness International has an adequate remedy at law—its challenge that National Retail breached the 

lease. National Retail cites Kucera v. State Dep’t of Transp., 140 Wn.2d 200, 210, 995 P.2d 63 (2000) for 

the three-part test to determine whether there are adequate remedies at law: “(1) the injury complained of 

by its nature cannot be compensated by money damages, (2) the damages cannot be ascertained with 

any degree of certainty, and (3) the remedy at law would not be efficient because the injury is of a 

continuing nature.” Fitness International responds that money damages were insufficient because it 

sought a declaration that rent was not owed during the closure periods (as well as potentially future 

closure periods). We agree with Fitness International. 

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Washington State Hop Producers, Inc., Liquidation Tr. V. Goschie Farms, Inc., 112 

Wn.2d 694, 700, 773 P.2d 70 (1989). Under the Restatement, “the purpose that is 

frustrated must have been a principal purpose of that party in making the contract . . . 

without [which] the transaction would make little sense.” RESTATEMENT (SECOND) OF 

CONTRACTS § 265, cmt. a. See also Wash. State Hop Producers, 112 Wn.2d at 700. 

Performance is not excused unless the purpose is “substantially frustrated.” Felt v. 

McCarthy, 130 Wn.2d 203, 207, 922 P.2d 90 (1996). “It is not enough that the 

transaction has become less profitable for the affected party or even that [it] will sustain 

a loss.” Felt, 130 Wn.2d at 208. 

While we agree that Fitness International could not fully operate a traditional 

fitness facility during the limited months of the public health orders, the purpose of the 

lease was not substantially frustrated. Section 9.1 of the lease describes the initial and 

ancillary authorized uses of the premises. Initial uses include a lengthy list of traditional 

health and fitness facility uses:

Tenant may use the Premises (“Initial Use”) for the operation of a health 

club and fitness facility which may include, without limitation, weight and 

aerobic training, group exercise classes, exercise dancing such as 

Zumba, yoga, Pilates, racquetball/squash, personal training, aerobics, 

health and fitness related programs, free weights, spinning/cycling, circuit 

training, boxing, basketball, swimming pool, instruction in sports or other 

physical activities (e.g., swim lessons, racquetball/squash/tennis lessons, 

martial arts, dance, and youth sports instruction) and sauna and whirlpool 

facilities.

Section 9.1 also lists more than a dozen possible ancillary uses that Fitness 

International can conduct, including selling apparel, wellbeing services, vitamins, and 

food and beverages. Use of the premises for ancillary purposes is left broadly to 

Fitness International’s business judgment:

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Tenant may determine in Tenant’s reasonable business judgment, 

provided that such use: (i) is lawful; (ii) is in compliance with applicable 

environmental, zoning, and land use laws ad requirements; (iii) does not 

violate matters of record or restrictions affecting the Premises; (iv) does 

not conflict with any other agreement to which Landlord is bound, of which 

agreement Tenant has received written notice, where such conflict would 

materially adversely affect Landlord; (v) would not have a material adverse 

effect on the value of the Premises; and (vi) would not result in or give rise 

to any material environmental deterioration or degradation of the 

Premises. 

In Felt, a contract case, the purchaser stopped making payments on a real 

property purchase because zoning changes reduced the property’s value by more than 

80 percent. 130 Wn.2d at 205, 207. The Supreme Court held that a “decline in market 

value is not sufficient in and of itself” to excuse performance. Felt, 130 Wn.2d at 210; 

see also RESTATEMENT (SECOND) CONTRACTS §265 cmt. a (operating at a substantial 

loss does not constitute a substantial frustration excusing performance).

In leasing, the frustration defense is unavailable if a lease allows the tenant to put 

the premises to another use. Hayton v. Seattle Brewing & Malting Co., 66 Wn. 248, 

248-49, 119 P. 739 (1911). In Hayton, the tenants entered into a lease stating they 

“may . . . conduct a retail saloon business in the building.” Hayton, 66 Wash. at 249

(emphasis added). When prohibition laws went into effect, the tenant vacated, stopped 

paying rent, and argued that their performance was excused because the prohibition 

laws frustrated the purpose of their lease. Hayton, 66 Wash. at 249. The Supreme 

Court disagreed, holding that the saloon use “is only permissive in that respect, and 

clearly does not prevent [tenant] from using the premises for any lawful purpose.” 

Hayton, 66 Wash. at 249. Simply, while their primary purpose was to conduct a saloon 

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business, because the negotiated lease agreement allowed for additional uses, the 

purpose of the lease was not frustrated. 

As in Hayton, Fitness International’s lease uses the same permissive term, the

“Tenant may use the Premises.” Moreover, the lease specifically enumerates more 

than a dozen other ancillary uses subject only to Fitness International’s business 

judgment. Fitness International could for example, use the premise to create online 

classes, sell take-away food, beverages, and goods. 

Fitness International relies on Weyerhaeuser v. Stoneway Concrete, Inc., 96 

Wn.2d 558, 637 P.2d 647 (1981), and Brunswick-Balke-Collender Co. v. Seattle 

Brewing & Malting Co., 98 Wash. 12, 14-15, 167 P. 58 (1917). In Weyerhaeuser, a 

commercial mineral lease was frustrated when an unanticipated and unprecedented 

shift in environmental laws prevented the tenant from obtaining regulatory approvals. In 

applying the Restatement, the Supreme Court explained:

There can be no doubt of the desired object or purpose of [the lease].

. . . . 

[The] purpose of obtaining sand, gravel and other aggregates by strip 

mining the leased premises was frustrated by its inability to obtain the 

necessary permits is unchallenged. Stoneway was without fault in the 

occurrence of the supervening event causing the frustration of its purpose. 

Weyerhaeuser, 96 Wn.2d at 561-62. After finding equitable relief appropriate, the court 

limited the scope of the equitable remedy. The court found that frustration did not 

excuse the tenant’s rent obligations for the period between 1972 and 1975 when the 

tenant knew its project was a lost cause but remained in possession of the premises.

Weyerhaeuser, 96 Wn.2d at 561-62. 

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Weyerhaeuser, is distinguishable. First, Fitness International remained in 

possession of the premises during the closure periods. In Weyerhaeuser, the court 

specifically excluded the periods the tenant remained in possession of the premises 

from the frustration doctrine. Weyerhaeuser, 96 Wn.2d at 561-62. There the court 

excluded a three-year period; we are considering a period of seven months. Second, a 

mineral land lease is a specific purpose—the mining of resources. There was no other 

available use for the land that met the limited purpose and project scope. Alternatively, 

here, Fitness International could alter its business practices to occupy the premises for 

other purposes. 

In Brunswick, another Prohibition era case, the lease was materially narrower 

than the lease in Hayton. The Brunswick lease stated that “[t]he premises are hereby 

leased to the lessee for the purpose of conducting a saloon and selling liquors at retail 

therein.” Brunswick, 98 Wn. at 14-15. Unlike the Hayton lease, the Brunswick lease left 

out the term “may.” The Supreme Court concluded that the nonpermissive lease 

language made it apparent that the parties had “one and one purpose only in mind, that

the premises were let for saloon purposes and were to be occupied as a saloon.” 

Brunswick, 98 Wn. at 14-15. Because of Prohibition, the purpose was completely 

frustrated. 

In contrast, the lease in this case is much more expansive and allows Fitness 

International flexibility in its use of the premises. Fitness International’s lease was not 

substantially frustrated. 

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B.

“The doctrine of impossibility and impracticability discharges a party from 

contractual obligations when a basic assumption of the contract is destroyed and such 

destruction makes performance impossible or impractical, provided the party seeking 

relief does not bear the risk of the unexpected occurrence.” Tacoma Northpark, LLC v. 

NW, LLC, 123 Wn. App. 73, 81, 96 P.3d 454 (2004). These defenses are “not the legal 

equivalent of subjective inability to perform.” Liner v. Armstrong Homes of Bremerton, 

Inc., 19 Wn. App. 921, 926, 579 P.2d 367 (1978). 

Fitness International relies on Smugglers Cove, LLC v. Aspen Power 

Catamarans, LLC, 2020 WL 758107, at *3 (W.D. Wash. Feb. 14, 2020) (court order). 

There, the doctrine of impossibility discharged the contractual obligation to deliver a 

boat because a drunk driver struck and destroyed the boat in delivery. Smugglers 

Cove, 2020 WL 758107, at *3. The boat was destroyed, and so performance became 

impossible. Smugglers Cove, 2020 WL 758107, at *3. 

In contrast, the lease provides Fitness International with exclusive possession 

and use of the premises in exchange for monthly rent and other charges. Fitness 

International still occupied the premises, could conduct ancillary uses including, but not 

limited to, conducting online classes, sell take-away food, or otherwise alter its 

business, and continue operations. The premises was not destroyed nor was Fitness 

International’s exclusive possession and use disturbed. The temporary public health 

closure orders limited Fitness International’s use of the premises, but that is not 

sufficient to discharge Fitness International of performance based on impossibility. “The 

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No. 84242-1-I/17

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mere fact that a contract’s performance becomes more difficult or expensive than 

originally anticipated, does not justify setting it aside.” Liner, 19 Wn. App. at 926. 

IV.

National Retail argues that it is entitled to an award of reasonable attorney fees 

and costs on appeal. We agree.

“A contractual provision supporting award of attorney fees at trial supports an 

award of attorney fees on appeal.” Draper Mach. Works, Inc. v. Hagberg, 34 Wn. App. 

483, 490, 663 P.2d 141 (1983). The lease contains such a provision:

if any action for breach of or to enforce the provisions of this Lease is 

commenced, the court in such action shall award to the party in whose 

favor a judgment is entered, a reasonable sum as attorneys’ fees and 

costs. Such attorneys’ fees and costs shall be paid by the losing party in 

such action. 

The trial court awarded National Retail reasonable attorney fees and costs at 

trial. Subject to compliance with RAP 18.1, we award National Retail its reasonable 

attorney fees incurred in this appeal. 

Affirmed. 

WE CONCUR:

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.