Full Opinion

FILED OCTOBER 20, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE FOREST CREEK APARTMENTS, LLC, ) No. 41185-1-III a Washington limited liability company, ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) SUEGI FINCH, and all other occupants of ) 13110 N. Addison St., #B205, Spokane, ) WA, ) ) Appellant. ) LAWRENCE-BERREY, J. — In this unlawful detainer appeal, Suegi Finch restored her tenancy by slightly overpaying the appropriate amount into the court registry before the show cause hearing. At the hearing, she sought dismissal of the action. The trial court ordered the premises restored to her but also entered judgment against her for the landlord’s reasonable attorney fees, citing the lease’s attorney fee clause. On appeal, the tenant cites former RCW 59.18.230(2)(c) (2022) and argues that the lease’s attorney fee clause is unenforceable because the landlord is not entitled to fees under any provision of chapter 59.18 RCW. Limited by the landlord’s arguments on appeal, we agree with her and reverse. No. 41185-1-III Forest Creek Apartments v. Finch FACTS In February 2025, Forest Creek Apartments, LLC filed an unlawful detainer action against its tenant, Suegi Finch, for failure to pay rent. Forest Creek obtained an order to show cause why possession should not be restored to it and why judgment should not be entered against Finch for the amounts requested in its complaint. Before the show cause hearing, Finch paid into the court registry $6,425 for the rent owed, $350 for court costs, and $75 for late fees, which totaled $6,850. At the show cause hearing, Finch asked the court to deny Forest Creek’s request for relief and dismiss the action because, under RCW 59.18.410(2), her payment restored her tenancy and Forest Creek was not entitled to possession. Forest Creek opposed dismissal and argued that a judgment was required to be entered before the tenant’s restoration of the tenancy under RCW 59.18.410(2). Finch countered that the plain language of the subsection permitted restoration of the tenancy before entry of judgment. The trial court concluded that RCW 59.18.410(2) permitted restoration of the tenancy as early as the show cause hearing—when the tenant is determined to be liable for unlawful detainer. The court further concluded that it had discretion to award attorney fees under the lease’s attorney fee clause and also chapter 59.18 RCW. The court ordered Finch’s tenancy restored, clarified that restoration was not conditioned on 2 No. 41185-1-III Forest Creek Apartments v. Finch Finch’s payment of Forest Creek’s reasonable attorney fees, and then entered judgment for those attorney fees.1 Finch appeals Forest Creek’s judgment for attorney fees. ANALYSIS A. A RENTAL AGREEMENT REQUIRING A TENANT TO PAY A LANDLORD’S ATTORNEY FEES IS UNENFORCEABLE, EXCEPT AS AUTHORIZED BY THE RLTA2 Finch argues the trial court erred in awarding Forest Creek its attorney fees because a rental agreement requiring a tenant to pay a landlord’s fee is unenforceable, except as authorized by the RLTA, and the RLTA does not authorize payment of Forest Creek’s fees. Forest Creek responds that attorney fees are awardable under its lease because RCW 4.84.330 makes a fee award mandatory when required by a contract, while RCW 59.18.290 merely permits an award of fees. Forest Creek seems to argue that “[h]armonizing” these two statutes permits us to apply RCW 4.84.330 instead of RCW 59.18.290 when, such as here, the tenant appeared at the show cause hearing and 1 Finch’s $350 deposit for costs was $47.82 more than the costs incurred by Forest Creek, so the court credited the small overpayment to what it found were Forest Creek’s reasonable attorney fees. 2 The Residential Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW. 3 No. 41185-1-III Forest Creek Apartments v. Finch she owed more than two months of rent. Br. of Resp’t at 18. We find this argument difficult to follow, and both factually and legally incorrect. First, the parties’ lease does not require an award of attorney fees. Under the lease, an award of fees “may be awarded to the prevailing party.” Clerk’s Papers (CP) at 14 (emphasis added). Second, RCW 4.84.330 does not require courts to award attorney fees. Rather, it makes a unilateral attorney fee clause in a contract bilateral. Finch’s argument, however, is easy to follow and is legally correct. Under former RCW 59.18.230(2)(c),3 “[n]o rental agreement may provide that the tenant . . . (c) Agrees to pay the landlord’s attorneys’ fees, except as authorized in this chapter.” Renumbered as RCW 59.18.230(2)(e) (LAWS OF 2025, ch. 206 § 1, eff. July 27, 2025). The only basis under chapter 59.18 RCW for an award of attorney fees argued by the parties is RCW 59.18.290(3).4 And under that subsection, attorney fees are only permitted “[w]here the court has entered a judgment in favor of the landlord restoring possession of the property to the landlord.” RCW 59.18.290(3). Here, it is uncontested 3 The legislature modified RCW 59.18.230 in 2025. The modifications apply to all rental agreements entered into or renewed on or after July 27, 2025. Because this action was filed in February 2025, the former statute applies. 4 Forest Creek also cites RCW 59.18.410(1), which permits a court to “award reasonable attorneys’ fees as provided in RCW 59.18.290.” (Emphasis added.) And both parties focus on RCW 59.18.290(3). 4 No. 41185-1-III Forest Creek Apartments v. Finch that the trial court never entered a judgment restoring possession of the property to Forest Creek. We conclude that the trial court erred by awarding Forest Creek attorney fees based on its lease. B. WE DECLINE TO REACH FOREST CREEK’S PRIMARY ARGUMENT Forest Creek’s primary argument is that restoration of a tenancy under RCW 59.18.410(2) is not permitted until after judgment is entered under RCW 59.18.410(1). Finch argues that Forest Creek did not file a cross appeal, and the trial court’s conclusion that restoration can occur as early as the show cause hearing is the law of the case. We first address whether we should consider Forest Creek’s primary argument. Law of the case doctrine is discretionarily applied by appellate courts A respondent who fails to cross-appeal a trial court’s adverse ruling on an issue is precluded on appeal from arguing that the ruling was incorrect. Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 89, 838 P.2d 111 (1992); Erakovic v. Dep’t of Lab. & Indus., 132 Wn. App. 762, 775, 134 P.3d 234 (2006); Sunland Invs., Inc. v. Graham, 54 Wn. App. 361, 364, 773 P.2d 873 (1989). The unappealed ruling becomes the law of the 5 No. 41185-1-III Forest Creek Apartments v. Finch case. Eckley v. Bonded Adj. Co., 30 Wn.2d 96, 109, 190 P.2d 718 (1948); Sunland Invs., 54 Wn. App. at 364. Here, the trial court ruled that a tenant’s right to reinstate under RCW 59.18.410(2) can be exercised as early as a show cause hearing. Forest Creek failed to cross-appeal that ruling; therefore, it is the law of the case. Application of the law of the case doctrine is discretionary with an appellate court. Bus. Servs. of Am. II, Inc. v. WaferTech, LLC, 188 Wn.2d 846, 852, 403 P.3d 836 (2017). Here, application of the law of the case is appropriate because the arguments raised by Forest Creek would be unavailing. As noted previously, the only way Forest Creek can prevail on the attorney fee issue is to establish that the trial court should have entered a judgment restoring possession of the premises to it. See RCW 59.18.290(3). This is not what Forest Creek is arguing. Instead, Forest Creek is arguing it “was entitled to judgment under RCW 59.18.410(1).” Br. of Resp’t at 10. We disagree. RCW 59.18.410(1) discusses what issues must be decided at an unlawful detainer trial and the scope of relief granted by a court or jury. It does not authorize a broader attorney fee recovery than RCW 59.18.290(3) and even expressly states a court may “award reasonable attorneys’ fees as provided in RCW 59.18.290.” RCW 59.18.410(1) 6 No. 41185-1-III Forest Creek Apartments v. Finch (emphasis added).5 Because Forest Creek’s argument would have been unavailing, we apply the law of the case. We reverse and remand to the trial court with instructions for it to vacate Forest Creek’s attorney fee judgment. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Lawrence-Berrey, J. WE CONCUR: ______________________________ _________________________________ Murphy, J. Hill, J. 5 We do not reach the issue of whether RCW 59.18.410(2) can be construed as requiring a trial court to first enter judgment restoring possession of the property to the landlord before then reinstating the tenant’s tenancy. Forest Creek does not make an argument based on RCW 59.18.410(2) but rather bases its argument on RCW 59.18.410(1). To the extent a sentence or two in its brief suggests the former argument, it is insufficiently made to warrant review. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986). 7