IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SUBWAY REAL ESTATE, LLC, a C")

Delaware limited liability company, No. 77510-3-1 C=

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Appellant, DIVISION ONE

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V. UNPUBLISHED OPINION 7;24.

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REBECCA J. ARMOUR, aka

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REBECCA J. WILSON, an individual, 111111•••

Respondent. FILED: January 14,2019

APPELWICK, C.J. — Subway, a lessee, brought an unlawful detainer action

against sublessee, Wilson. The trial court found that under the leases Subway's

lessor, not Subway, was the proper party to bring the unlawful detainer action

against Wilson. The trial court dismissed with prejudice Subway's claims and

awarded Wilson attorney fees. Subway argues that its claims should have been

dismissed without prejudice, and that the court erred in awarding attorney fees.

We affirm.

FACTS

Seawest Investment Associates LLC leased space in Kirkland to Subway

Real Estate LLC. Subway then subleased the premises to franchisee Rebecca

Armour, also known as Rebecca Wilson (Wilson), for Wilson to operate a Subway

restaurant. The sublease required Wilson to pay rent directly to Seawest, the

landlord under the master lease.
No. 77510-3-1/2

On January 6, 2017, Seawest served Subway with a 10 day notice to

comply or vacate, alleging that Subway owed $20,865.44 in outstanding rent and

late fees.1 On April 26, 2017, Subway served Wilson with a notice to pay

outstanding rent or vacate within five days. Subway then filed an unlawful detainer

action against Wilson on May 4, 2017. In response, Wilson argued that she did

not owe rent, but was actually owed credit for repairs she had made.

In its order of dismissal, the trial court observed that Wilson is obligated to

pay rent to Seawest, not Subway. And, it stated that Wilson had rent-offset rights2

that she can exercise only against Seawest, not Subway. The trial court concluded

that Subway was not liable for Wilson's counterclaims, and that Subway was not

the proper party to bring the unlawful detainer action against Wilson. The court

then dismissed without prejudice Subway's claims against Wilson.

Wilson moved for attorney fees under a fee provision in the sublease and

RCW 4.84.330. Subway opposed the motion. Subsequently, the trial court filed

an amended order of dismissal, dismissing Subway's claims "with prejudice,"

"because Subway has no standing to assert such claims against [Wilson] on behalf

of the Landlord, Seawest." Wilson then moved for attorney fees based on the

1 The notice is dated January 6, 2016, but is also stamped as "received

[January] 11, 2017." (Capitalization omitted.)

2 While counterclaims are generally not allowed in unlawful detainer

proceedings, there is an exception when the counterclaim, affirmative equitable

defense, or set-off is based on facts which excuse a tenant's breach. Munden v. 

Hazelrigq, 105 Wn.2d 39, 45, 711 P.2d 295 (1985).

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amended order of dismissal. The trial court granted the motion, awarding Wilson

attorney fees pursuant to RCW 4.84.330. Subway appeals.3

DISCUSSION

Subway asserts that the trial court erred in dismissing its claims "with

prejudice," and in awarding Wilson attorney fees. It does not argue that dismissal

was improper, but instead asserts that the trial court's original disrriissal without

prejudice was correct, and that the trial court erred in amending its order to a

dismissal with prejudice.

I. Dismiss with Prejudice 

Subway argues that its claims against Wilson should not have been

dismissed with prejudice. It asserts that (1) there was no decision on the merits of

all of Subway's claims against Wilson, and (2) Subway "has to be in a position to

assert its breach of contract claims" under the sublease against Wilson in a future

action that Seawest may bring against both it and Wilson.

CR 41(a)(4) provides the trial court with the discretion to make the dismissal

with prejudice in an appropriate case. Escude v. King County Pub. Hosp. Dist. No. 

2, 117 Wn. App. 183, 192, 69 P.3d 895 (2003). "'A trial court's discretion under

CR 41(a)(4) to order dismissal with prejudice should be exercised only in limited

circumstances where dismissal without prejudice would be pointless." Gutierrez 

v. Icicle Seafoods, Inc., 198 Wn. App. 549, 557, 394 P.3d 413 (2017) (quoting

Escude,117 Wn. App. at 187). A voluntary dismissal is a final judgment when the

3 Subway appeals the amended order of dismissal, the order denying its

motion for reconsideration, and the order granting Wilson's motion for attorney

fees.

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court elects to dismiss with prejudice, because then it does not leave the parties

as if the action had never been brought. Elliott Bay Adjustment Co., Inc. v. 

Dacumos,200 Wn. App. 208, 214, 401 P.3d 473 (2017). The court's decision to

dismiss with prejudice bars the plaintiff from bringing the same claim against the

defendant. See id.

Subway's complaint alleged that Wilson failed to pay rent and was still in

possession of the premises. Subway asked the trial court to terminate the

sublease, restore its rights to the premises, and enter a judgment against Wilson

for outstanding rent, damages, and attorney fees. Unlawful detainer actions are

brought pursuant to RCW 59.12.030, which 'provides generally for a summary

proceeding to determine the right of possession as between landlord and tenant.

Munden,105 Wn.2d at 45. The action is a narrow one, limited to the question of

possession and related issues such as restitution of the premises and rent. Id.

Under the sublease, Wilson owed rent to Seawest, not Subway.

Consequently, Subway did not have standing to bring the unlawful detainer action.

The trial court did not err in concluding that dismissal was required. The lack of

standing will not change. Therefore, dismissal without prejudice would have been

pointless. The trial court did not err in dismissing with prejudice.

Subway contends that the trial court did not reach its breach of contract

claims against Wilson. That is true. But, even if it could have brought the unlawful

detainer action, contract claims are outside the scope of the unlawful detainer

action, and must be raised in a separate action. The trial court took no action to

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rule on any putative contract claims Subway may choose to assert subsequently

in such an action.

II. Attorney Fees 

Subway argues that the trial court should not have awarded Wilson attorney

fees under RCW 4.84.330, because to receive an award Wilson must have been

entitled to a final judgment. And, Subway argues that the court "did not resolve

the issue of whether [Wilson] owed unpaid rent to Subway under the subcontract

between those two parties."

An award of attorney fees is proper when authorized by the parties'

agreement, by statute, or by a recognized ground in equity. Hous. Auth. v. Bin,

163 Wn. App. 367, 377, 260 P.3d 900 (2011).

Subway relies on Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481,

492, 200 P.3d 683 (2009). In Wachovia, our Supreme Court defined a final

judgment as "'[a] court's last action that settles the rights of the parties and

disposes of all issues in controversy." Id. (quoting BLACK'S LAW DICTIONARY 859

(8th ed. 2004)). The court held that a voluntary dismissal is not a final judgment

by this definition because it "leaves the parties as if the action had never been

brought." Id. Wachovia differs from this case, because there the court asked

whether there is a prevailing party under RCW 4.84.330 when the trial court

dismisses without prejudice. Id. at 490. Here, the trial court dismissed with

prejudice, and Subway cannot refile the unlawful detainer action against Wilson.

The purpose of RCW 4.84.330 is to make unilateral contract provisions

bilateral. Id. at 489. The statute expressly awards fees to the prevailing party in a

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contract action. Id. It further protects its bilateral intent by defining a prevailing

party as one that receives a final judgment. Id.

The sublease between Subway and Wilson contains an attorney fee

provision. The trial court dismissed Subway's claims with prejudice, which is a

final judgment in favor of Wilson. Thus, pursuant to RCW 4.84.330, the trial court

did not err in awarding Wilson attorney fees and costs.

III. Attorney Fees on Appeal 

Wilson asks this court to award her attorney fees on appeal. Because

Wilson is the prevailing party on appeal, she is entitled under the sublease to an

award of attorney fees for this appeal, subject to compliance with RAP 18.1. Bin

163 Wn. App. at 378.

We affirm.

WE CONCUR:

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