(dissenting) — I concur in all portions of the majority opinion, except for the holding that DeLaurenti suffered injury to her business or property sufficient to support an award of attorney's fees under the CPA.
The majority opinion is correct in holding that incurring attorney's fees in defending a collection action and prosecuting a counterclaim asserting a CPA violation is not sufficient proof of injury to the claimant's business or property.
The majority opinion is in error, however, in holding that DeLaurenti's time devoted to the litigation and problems with the Sign-O-Lite contract were sufficient proof of an injury to her business or property.
In my view, both the attorney's fees incurred and the personal time devoted to the litigation cannot be distinguished. They are both incurred for the same reason — the disagreement over the contract with Sign-O-Lite and the resulting litigation. If the incurring of attorney's fees is not an injury, then neither is the personal time devoted to the same litigation.
The majority opinion states at page 564, "To hold otherwise would be to invite defendants in most, if not all, routine collection actions to allege CPA violations as counterclaims." The same objection applies to treating personal time devoted to the litigation as an injury under the CPA. Once a court holds that an injury is shown when a party devotes personal time to the litigation, the effect will be to allege CPA violations as counterclaims, even when no actual damage is sustained.
In Mason v. Mortgage Am., Inc., 114 Wn.2d 842, 854, 792 P.2d 142 (1990), the court stated that a loss of use of property which is causally related to an unfair or deceptive act or practice is sufficient injury to constitute the fourth element of a CPA violation.
In Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208 (1987), the court found that an injury based upon loss of business reputation and loss of goodwill caused by *570the trade name infringement of the defendant constituted an injury to business or property for purposes of the CPA.
Both loss of use of property and damage to business reputation and loss of goodwill are compensable in actual damages where sufficient proof is presented.
The loss of time and inconvenience of being involved in litigation is not caused directly by the deceptive practice of the defendant. Like attorney's fees, the loss of time and inconvenience arises out of the litigation itself. In the absence of litigation, the incurring of attorney's fees and loss of time do not occur.
I dissent from that portion of the majority opinion holding that DeLaurenti's devotion of time to the litigation was sufficient proof of an injury to her business or property to support an award of attorney's fees under the CPA.
I note that paragraph 32 of the agreement involved in this case provides for attorney's fees to be paid by the advertiser (DeLaurenti) in respect to "any action brought with respect to this Agreement or in any way connected herewith". Exhibit 1.
The record indicates that the award of attorney's fees pursuant to this provision was the subject of discussion with the trial judge.
RCW 4.84.330 provides for attorney's fees to the prevailing party where fees are provided for in a contract or lease. Should the award of attorney's fees to DeLaurenti pursuant to the CPA be reversed, as I think it should be, DeLaurenti would be entitled to have the trial court pass on her claim for attorney's fees pursuant to the contract provision and RCW 4.84.330.
I would reverse the award of attorney's fees under the CPA and remand to the trial court for the purpose of permitting DeLaurenti to pursue her claim for attorney's fees based upon the contract provision.
Reconsideration denied March 4, 1992.
Review denied at 120 Wn.2d 1002 (1992).