(concurring) — Ms. Morford contends the District Court should have awarded her attorney fees as a prevailing party. As authority, she cites RCW 4.84.330 and 59.18.280. Ms. Morford's attorney advised us at oral argument he seeks $3,500 for his representation in district court, $1,200 for the appeal in superior court, and $3,777.96 including costs for this appeal. This, for a judgment in which his client netted $86.
While Singleton v. Frost, 108 Wn.2d 723, 742 P.2d 1224 (1987) does hold that RCW 4.84.330 is a mandatory statute awarding reasonable attorney fees to a prevailing party in an action brought on a contract or a lease, that provision is not applicable here. This lease expired in 1983 and Ms. Morford continued as a tenant on a month-to-month basis.
RCW 59.18.280 does provide in the last sentence of the second paragraph, "the prevailing party shall additionally be entitled to the cost of suit or arbitration including a reasonable attorney's fee" for the landlord's failure to make a refund of the deposit. However, that statute does not have the provision contained in RCW 4.84.330 that voids a waiver by any of the parties to a contract or lease entered into after September 21, 1977. Likewise, the last paragraph of RCW 59.18.280 does provide that a landlord may bring an action for damage over and above the amount of deposit and if successful may be accorded attorney fees.
Here, the tenant started an action in small claims court. The landlord brought an action in district court on other *913claims including retention of the $250 damage deposit, for a total of $1,925.74. The tenant's small claim action was transferred to district court. The tenant's counsel accepted this case as a pro bono assignment. He now claims the client did not meet pro bono qualifications and is charging his client for his representation; she is paying on a monthly basis.
The District Court Judge in his oral opinion noted this entire matter could have been settled not only sooner, but quicker had the matter remained in small claims court, and in all likelihood, with the same result. His opinion evidences a friction between the landlord and the tenant caused the tenant to move out and these claims to ensue. He found none of them valid other than the tenant was entitled to approximately one-third of her deposit; the other two-thirds was required to clean up the rented premises.
When the landlord sued for an amount in excess of the deposit plus the deposit, the tenant was required to defend or be subject to a default plus an award of attorney fees. The landlord did not prevail upon that contention, among others, and hence was not entitled to attorney fees on that basis. Had the landlord prevailed, she would be entitled to attorney fees. Thus, the tenant should be able to defend and be awarded her reasonable attorney fees for that defense if she prevails. Here, she did get a partial return of her deposit.
Initially, the District Court was prepared to award attorney fees to the tenant. Counsel for the landlord prevailed on an argument that this was basically a suit of vengeance by both parties and in equity each party should bear her own expense. In all candor, this was a most practical solution.
However, the tenant did not claim a right to attorney fees on the basis that the landlord had brought an action in excess of the damage deposit and lost and thus the tenant was entitled to attorney fees. She sought it solely because she recovered part of her deposit. While, in some cases, *914fighting for a principle may be worth the cost, an opponent is not always required to reimburse legal fees. RCW 59.18-.280 allows attorney fees for recovery of the deposit, but the $8,477.96 is for the trial of all claims and two appeals. Having won only a piece of the action, she is not entitled to her total fees.
I see no reason why it should cost three times as much in attorney fees to handle an appeal in this court when the same issue was appealed to the superior court. I have not been enlightened with what counsel did differently at this level than he did in superior court. At best, the tenant is only entitled to recover a reasonable fee, pursuant to statute, for her claims against the contention for retainage of the deposit and defense of alleged additional damages to the premises. That portion of the statute has not been addressed by the tenant at any stage of these proceedings nor has the amount of fees attributable to that issue been designated. I agree with the majority.