Weidner Property Management, LLC v. Brian Cutsforth

FILED
NOVEMBER 7, 2023
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

WEIDNER PROPERTY )
MANAGEMENT, LLC, a Washington ) No. 39121-3-III
limited liability company, d/b/a Riverside )
9 Apartment Homes, )
)
Respondent, )
) UNPUBLISHED OPINION
v. )
)
BRIAN CUTSFORTH and JENA )
KINCHELOE and all other occupants of )
895 Riverside Dr., #D252, Wenatchee, )
Washington, )
)
Appellants. )

FEARING, C.J. — In 2021, the Washington legislature, in the face of the continuing

COVID-19 pandemic, adopted RCW 59.18.630, designed to keep renters housed by

requiring a landlord to offer a reasonable proposal for repayment of defaulted rent and to

cooperate with an emergency rental assistance program. RCW 59.18.410(2), however, an

older statute, does not require the landlord to agree to new lease terms as a condition to

accepting rent payments from an emergency rental assistance program. We must resolve

the tension between the two statutes. In this appeal, a landlord and tenants ask us to

determine if the landlord’s denial of new lease terms should be considered when

assessing whether the landlord acted reasonably in offering a repayment plan under
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Weidner Property Management, LLC v. Cutsforth

RCW 59.18.630 or whether RCW 59.18.410(2) excuses the landlord from otherwise

accepting a reasonable offer from the tenants for repayment of the defaulted rent because

a rental assistance program, from which the tenants seek aid, demands additional terms.

We hold that the program’s demand for new lease terms does not automatically excuse

the landlord from accepting rental payments made using rental assistance, but rather

constitutes one factor for the trial court to consider when assessing the reasonableness of

repayment proposals. We remand for further proceedings.

FACTS

On August 23, 2021, Brian Cutsforth and Jena Kincheloe, as tenants, and Weidner

Property Management, LLC (Weidner), as landlord, entered a one-year lease running

from September 7, 2021 to September 6, 2022. The lease covered an apartment in

Wenatchee. Tenants agreed to pay rent at $1,830 per month.

When Brian Cutsforth and Jena Kincheloe moved into the apartment, Cutsforth

worked as a night auditor at a La Quinta Inn, and Kincheloe served as a housekeeper at

the same motel. Their collective income allowed payment of the apartment rent.

Illness struck within weeks of Brian Cutsforth and Jena Kincheloe moving into the

apartment. Cutsforth was bedridden for seven weeks. Cutsforth tested negatively for

COVID-19, but he suffered symptoms common for those stricken with the virus.

Cutsforth could not taste food, faced weakness and exhaustion, and ran fevers. His high

fevers prevented his working at his job and resulted in his loss of employment at

LaQuinta.

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Jena Kincheloe encountered symptoms of asthma. A physician diagnosed her with

Chronic Obstructive Pulmonary Disease (COPD). The lung condition progressively

worsened, and Kincheloe lost stamina. She could no longer perform her duties as a

housekeeper and also lost employment. With both Kincheloe and Cutsforth unemployed,

the couple could no longer afford to pay rent.

In December 2021, Brian Cutsforth and Jena Kincheloe submitted a Treasury

Renat Assistance Program (T-RAP) rent payment agreement application form to the

Washington State Department of Commerce (DOC). The submittal sought rent

assistance for the months of October, November, and December 2021 in an amount

totaling $5,280. Landlord Weidner also signed the application. With its signature,

Weidner agreed to accept additional terms outlined on the form, which included

accepting $5,067 as full satisfaction of Cutsforth and Kincheloe’s past-due rent. DOC

approved the application. DOC paid Weidner $5,067.

Brian Cutsforth and Jena Kincheloe defaulted on rent again in January 2022, and

Weidner offered a rent repayment plan on January 7. Cutsforth and Kincheloe accepted

the repayment plan on January 19. Cutsforth and Kincheloe made no additional

payments after accepting the repayment plan, and, when they failed to pay rent yet again

for the month of February, Weidner served a notice to pay or vacate. Under the Eviction

Resolution Pilot Program (ERPP) requirements, outlined in RCW 59.18.660, Weidner

needed to secure a certificate of participation with the program before proceeding with an

unlawful detainer action. See RCW 59.18.660(5). A Wenatchee dispute resolution

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center issued the requisite certificate on March 28, 2022 after conducting mediation

between the tenants and landlord.

On April 6, 2022, landlord Weidner offered tenants Brian Cutsforth and Jena

Kincheloe another repayment plan. On that date, Cutsforth and Kincheloe owed

$7,600.95 in back rent for January through April 2022. The plan required that Cutsforth

and Kincheloe pay the past-due rent at a rate of $609.99 per month beginning on May 8,

2022 and on the eighth of each month thereafter. Payments would extend for thirteen

months and end after the lease term expired.

Also on April 6, Brian Cutsforth and Jenna Kincheloe met with and sought from

the Chelan-Douglas Community Action Council (CDCAC) emergency rental assistance.

CDCAC contracted with DOC to administer Washington State’s emergency rental

assistance program.

Brian Cutsforth and Jena Kincheloe returned to Weidner a counteroffer that

offered to repay past-due rent with emergency rental assistance from CDCAC and from a

second organization in the event their remaining debt exceeded what CDCAC would

cover. CDCAC conditioned payment of funds, however, upon Weidner signing an

agreement that contained terms beyond the August 2021 lease terms between Weidner

and tenants Cutsforth and Kincheloe. Among other new terms, Weidner needed to

refrain from charging any late fees, withhold rent increases for six months, allow six

months of occupancy except for serious lease violations, and supply CDCAC a copy of

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Weidner’s lease agreement with Cutsforth and Kincheloe. Weidner refused to agree to

the additional terms on which CDCAC conditioned receipt of the funding.

PROCEDURE

On May 9, 2022, Weidner Property Management filed an unlawful detainer

complaint against Brian Cutsforth and Jena Kincheloe. The trial court initially scheduled

a show cause hearing for May 27, but continued the hearing twice and until June 27.

Brian Cutsforth and Jena Kincheloe submitted a memorandum to the trial court in

which they argued for dismissal of the unlawful detainer action because Weidner violated

RCW 59.18.630(3)(c) by rejecting emergency rental assistance for repayment of past-due

rent and because the April 2022 repayment plan offered by Weidner was not reasonable

under RCW 59.18.630. Cutsforth and Kincheloe later counterclaimed for source of

income discrimination in violation of RCW 59.18.255(4). Weidner replied that, under

RCW 59.18.410(2), it had no obligation to accept new lease terms as a condition to

accepting past-due rent from a third party and its rejection of the new lease terms lacked

relevance when determining the reasonableness of repayment proposals under

RCW 59.18.630.

On June 30, 2022, the trial court delivered an oral ruling on the issues raised at the

May 27 hearing. The court remarked:

[THE COURT:] Issue number three. The non-acceptance of
conditions of funding. And that deals—that issue deals with RCW
59.18.410. And specifically (2) of which I want to read the relevant portion
of that. It says . . . the landlord shall accept any written pledge of
emergency rental assistance funds provided to the tenant from a

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governmental or non-profit entity after the expiration of the pay or vacate
notice if the pledge will contribute to the total payment of both the amount
of rent due, including any current rent and other amounts if required under
this subsection. . . . [B]y accepting such pledge of emergency rental
assistance, the landlord is not required to enter into any additional
conditions not related to the provisions of necessary payment, information
and documentation.
And here, the Court—the evidence was presented that the—the
Chelan Douglas Community Action Council proposal, the standard one, I
think that they use—it appears to the Court in almost every case does have
those additional conditions, specifically, the condition the landlord must
accept not to move for eviction or do those types of proceedings for an
additional six[-]month period. And the six[-]month period was an
additional condition the court finds to—not related to the provision of
necessary payment, information, and documentation.
And therefore, the Court is finding that RCW 59.18.410[(2)],
provides the landlord with the authority to reject the rental assistance funds
in this case from the Chelan Douglas Community Action Council.

Report of proceedings (RP) at 115-16.

THE COURT: . . . And then the—the other issue is the RCW
59.18.630. The objection was to or the issue was, did the repayment plan
offered by the landlord in this case comply with that statute? Specifically,
subparagraph well, all of that statute, basically. And the requirements, in
part, are that any replacement plan entered into this—under the section
must not require payment until 30 days after repayment is offered to the
tenant, cover rent only and not only late fees, attorneys fees or other fees
and charges, allow for payments of any source of income as defined in
RCW 59.18.255 or from pledges by nonprofit organizations, churches,
religious institution or governmental entities. And there’s other provisions
as well, which I don’t think are relevant in this case. I mean they are
relevant, but the Court’s finding is that the repayment plan that was offered,
I think it might have been attached to the summons and complaint, it does
comply with that statute.
And so, the Court is finding that the repayment plan that was offered
by the landlords in this case complied with RCW 59.18.630. And that is
the Court’s holding on that.

RP at 118-19.

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The trial court signed an order for a writ of restitution and entered a judgment for

Weidner Property Management against Brian Cutsforth and Jena Kincheloe for

$13,304.89 in rent owed, $257.00 in costs, and $17,130.00 in attorney fees. The amounts

total $30,691.89.

Brian Cutsforth and Jena Kincheloe moved for an immediate stay to allow them to

file a motion to reconsider and, depending on what they uncovered through legal

research, to appeal the trial court’s decision to this court. The trial court requested

briefing from the parties on the motions and set a hearing for July 13.

On July 12, 2022, Brian Cutsforth and Jena Kincheloe filed a “Motion,

Declaration, and Legal Authority to Stay Writ of Restitution Pending Reconsideration

and Application to Landlord Mitigation Program,” in which they requested relief from

the trial court’s judgment pursuant to RCW 59.18.410(3). Cutsforth and Kincheloe also

requested that the trial court issue a stay of enforcement on the judgment and on the writ

of restitution to allow them the opportunity to apply for relief through the landlord

mitigation fund, created under RCW 43.31.605.

On July 13, 2022, the trial court denied the motion for reconsideration. The trial

court, however, granted Brian Cutsforth and Jena Kincheloe a stay of enforcement of the

writ of restitution under RCW 59.18.410(3) that effectively permitted Cutsforth and

Kincheloe to remain in possession of the apartment for two more months and until the

lease ended in September 2022. The trial court also stayed enforcement of the monetary

judgment for the purpose of affording Cutsworth and Kincheloe an opportunity to apply

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for disbursement of funds from the landlord mitigation program account established

under RCW 43.31.605 and operated by DOC. The stay order read that, a failure of

Cutsworth and Kincheloe to submit or cooperate in the submission of the application for

the mitigation program would result in the vacation of the stay. Our record does not

show whether the program disbursed funds to satisfy the judgment, let alone whether

Cutsworth and Kincheloe applied for this financial assistance. The order of stay allowed

Weidner to reactivate the writ of restitution if funds were not disbursed within thirty

days.

LAW AND ANALYSIS

On appeal, Brian Cutsforth and Jena Kincheloe repeat the same arguments

forwarded before the trial court. Cutsworth and Kincheloe argue that the trial court erred

in concluding that RCW 59.18.410(2) permitted Weidner to refuse to accept emergency

rental assistance when CDCAC demanded new lease terms. Cutsforth and Kincheloe

argue that RCW 59.18.630 trumps RCW 59.18.410(2) and that a reasonable proposal for

repayment of rent would include Weidner agreeing to additional lease terms. The couple

also argue that, regardless of the application of RCW 59.18.410(2), the trial court erred in

finding that Weidner’s offered repayment plan was reasonable when it required that

tenants experiencing unemployment due, in part, to COVID-related illness, pay an

additional $609.99 per month beginning as soon as the following month. At oral

argument, Cutsworth and Kincheloe’s counsel agreed that the tenants have moved from

the apartment and no longer seek to reverse the writ of restitution. Wash. Court of

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Weidner Property Management, LLC v. Cutsforth

Appeals oral argument, Weidner Property Management, LLC v. Cutsworth, No. 39121-3-

III (September 6, 2023) at 3:15 to 4:00 (on file with the court). Cutsforth and Kincheloe

also contend an issue of fact exists as to whether Weidner violated RCW 59.18.255(4) by

discriminating on the basis of the source of income.

In response, Weidner Property Management argues that this appeal should be

dismissed under RAP 3.1, RAP 2.5(b)(1)(ii), and RAP18.9(c)(2). In the event this court

determines that this appeal should not be dismissed under either statute, Weidner argues

that the trial court did not err in its decision because, under RCW 59.18.410(2), a

landlord need not accept emergency rental assistance if it does not wish to agree to

additional mandatory terms unrelated to the provision of necessary financial information

and documentation. Finally, Weidner contends it offered a reasonable payment plan in

compliance with RCW 59.18.630 and did not discriminate based on the source of income.

Dismissal of Appeal

We first address Weidner Property Management’s contention that we should

dismiss the appeal without addressing the merits. Weidner elicits RAP 2.5(b)(1)(ii),

RAP 3.1, and RAP 18.9(c)(2) to this end. We discuss the rules in ordinal numerical

order.

RAP 2.5(b) declares:

(b) Acceptance of Benefits. (1) Generally. A party may accept the
benefits of a trial court decision without losing the right to obtain review of
that decision only (i) if the decision is one that is subject to modification by
the court making the decision or (ii) if the party gives security as provided
in subsection (b)(2) or (iii) if, regardless of the result of the review based

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solely on the issues raised by the party accepting benefits, the party will be
entitled to at least the benefits of the trial court decision or (iv) if the
decision is one that divides property in connection with a dissolution of
marriage, a legal separation, a declaration of invalidity of marriage, or the
dissolution of a committed intimate relationship.

(Emphasis omitted.)

Weidner argues that, because the trial court granted Brian Cutsforth and Jena

Kincheloe’s motion to stay the judgment, they cannot appeal the trial court’s decision.

Weidner equates the entry of the stay to the acceptance of benefits. Cutsforth and

Kincheloe argue that they received no benefits within the meaning of RAP 2.5(b)(1)(ii)

since the trial court’s judgment was adverse to them. They also argue that they were not

required to give security because this case was not one in which restitution may be

required. We agree with the couple’s first contention.

The order of stay may have benefited Brian Cutsforth and Jena Kincheloe but not

in the nature contemplated by RAP 2.5(b)(1). Cutsworth and Kincheloe received no

affirmative benefit by the stay, only a benefit that temporarily postponed a detriment.

The pair received no money from Weidner as a result of the stay, which money they

would need to repay if this court reverses the trial court. The primary purpose of

RAP 2.5(b) is to ensure that a party seeking review will be able to make restitution if a

decision is reversed or modified on appeal. Kruse v. Hemp, 121 Wn.2d 715, 720, 853

P.2d 1373 (1993); Scott v. Cascade Structures, 100 Wn.2d 537, 541, 673 P.2d 179

(1983).

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By now Weidner may have received the defaulted rent from DOC. If not,

Weidner could engage in actions to collect the judgment against Brian Cutsworth and

Jena Kincheloe.

The second posited rule is RAP 3.1. RAP 3.1 provides that only an “aggrieved

party” may seek review by the appellate court. This court stated in a recent opinion:

[A]n “aggrieved party” is one who can appeal a decision because it
adversely affects that party’s property or pecuniary rights, or a personal
right, or imposes on a party a burden of obligation—conversely, a party is
not aggrieved by a favorable decision and cannot appeal from such a
decision.

Shepler v. Terry’s Truck Center, Inc., 25 Wn. App. 2d 67, 79, 522 P.3d 126 (2022).

Weidner argues that Brian Cutsforth and Jena Kincheloe are not aggrieved parties

within the meaning of RAP 3.1 because the trial court granted their motion for relief from

judgment, in which Cutsforth and Kincheloe requested the trial court impose a stay of

enforcement on the judgment and a stay on the execution of the writ of restitution to

allow them to apply to the landlord mitigation fund established under RCW 43.31.605.

Weidner asserts that, because Cutsforth and Kincheloe are not aggrieved parties, this

appeal should be dismissed under RAP 3.1. Cutsforth and Kincheloe, on the other hand,

argue that they are aggrieved parties because the trial court found them liable to Weidner

for past-due rent, attorney fees, and costs totaling $30,691.89, a decision that

substantially affected their pecuniary interests. They assert that, although the trial court

allowed them to apply to the landlord mitigation fund to satisfy the $30,000 judgment

against them, they are obligated to reimburse DOC for any funds disbursed to Weidner.

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To repeat, we do not know whether the mitigation fund satisfied the judgment

owed by Brian Cutsforth and Jena Kincheloe. RCW 43.31.605(b)(iii) confirms the duty

to repay DOC for any funds disbursed to the landlord. We proceed as if Cutsworth and

Kincheloe either owe DOC or Weidner the amount. Therefore, the pair qualify as

aggrieved parties.

RAP 18.9(c) reads:

Dismissal on Motion of Party. The appellate court will, on motion
of a party, dismiss review of a case . . . if the application for review is . . .
moot.

Weidner argues that this appeal should be dismissed as moot because Brian Cutsforth and

Jena Kincheloe obtained a stay that allowed them to remain in possession of the

apartment until their lease expired in September 2022 and the two have since vacated the

premises. Cutsworth and Kincheloe agree any relief from the writ of restitution is moot,

but they emphasize the judgment imposed on them. We agree the pending judgment does

not moot the entire appeal.

IBF, LLC v. Heuft, 141 Wn. App. 624, 174 P.3d 95 (2007) controls the question of

mootness. In IBF, LLC v. Heuft, Carmen Heuft leased a commercial space from IBF.

Heuft did not pay rent for three months. IBF delivered to Heuft a three-day notice to

vacate the premises or pay rent although, under the parties’ signed lease, Heuft was

entitled to a ten-day notice. Because Heuft neither vacated the premises nor paid rent,

IBF initiated an unlawful detainer action against her.

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On appeal, IBF argued mootness because Carmen Heuft did not seek possession of

the subject premises. In response to IBF’s argument, this court wrote:

Heuft is arguing that the process of her eviction was improper, and
therefore there is no basis for the eviction, the judgment against her or for
the attorney fees award. Because the court entered a monetary judgment
against Heuft, which went beyond the mere issue of possession, this case is
not moot.

IBF, LLC v. Heuft, 141 Wn. App. 624, 631 (2007).

Reasonable Repayment Offer

The substance of this appeal requires a deft reading of two statutes concerning

rental assistance programs adopted by the Washington State Legislature to help

defaulting tenants in an era of rising housing costs and housing shortages. We must

merge and then dissect RCW 59.18.410(2) and RCW 59.18.630.

RCW 59.18.410(2) governs in part the process of eviction from leased residences

after a finding of a failure to pay rent. The statute allows, after entry of a judgment for

the rent, the tenant to remain on the premises by providing a pledge of financial

assistance under an emergency rental assistance program administered by the government

or a nonprofit entity. The statute reads, in part:

If a tenant seeks to restore his or her tenancy and pay the amount set
forth in this subsection with funds acquired through an emergency rental
assistance program provided by a governmental or nonprofit entity, the
tenant shall provide a copy of the pledge of emergency rental assistance
provided from the appropriate governmental or nonprofit entity and have an
opportunity to exercise such rights under this subsection, which may
include a stay of judgment and provision by the landlord of documentation
necessary for processing the assistance. . . . The landlord shall accept any
written pledge of emergency rental assistance funds provided to the tenant

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from a governmental or nonprofit entity after the expiration of the pay or
vacate notice if the pledge will contribute to the total payment of both the
amount of rent due, including any current rent, and other amounts if
required under this subsection. . . . By accepting such pledge of emergency
rental assistance, the landlord is not required to enter into any additional
conditions not related to the provision of necessary payment information
and documentation.

(Emphasis added.) The legislature adopted the section permitting payment by an

emergency rental assistance program, plus the landlord’s right to refuse new lease terms

in 2020. 2020 c 315 § 5. Consistent with RCW 59.18.410(2), the trial court ruled that

Weidner Property Management need not have agreed to the additional terms demanded

by CDCAC such as allowing six months of occupancy except for certain lease violations.

We continue our analysis with RCW 59.18.630 enacted by the legislature in 2021

because of the COVID-19 pandemic. The statute governed nonpayment of rent during

the time of Washington State eviction moratorium and six months thereafter. Beginning

with subsection 2, the lengthy statute reads:

(2) If a tenant has remaining unpaid rent that accrued between March
1, 2020, and six months following the expiration of the eviction
moratorium or the end of the public health emergency, whichever is greater,
the landlord must offer the tenant a reasonable schedule for repayment of
the unpaid rent that does not exceed monthly payments equal to one-third
of the monthly rental charges during the period of accrued debt. If a tenant
fails to accept the terms of a reasonable repayment plan within 14 days of
the landlord’s offer, the landlord may proceed with an unlawful detainer
action as set forth in RCW 59.12.030(3) but subject to any requirements
under the eviction resolution pilot program established under RCW
59.18.660. . . . The court must consider the tenant’s circumstances,
including decreased income or increased expenses due to COVID-19, and
the repayment plan terms offered during any unlawful detainer proceeding.
(3) Any repayment plan entered into under this section must:

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(a) Not require payment until 30 days after the repayment plan is
offered to the tenant;
(b) Cover rent only and not any late fees, attorneys’ fees, or any
other fees and charges;
(c) Allow for payments from any source of income as defined in
RCW 59.18.255(5) or from pledges by nonprofit organizations, churches,
religious institutions, or governmental entities; and
(d) Not include provisions or be conditioned on: The tenant’s
compliance with the rental agreement, payment of attorneys’ fees, court
costs, or other costs related to litigation if the tenant defaults on the rental
agreement; a requirement that the tenant apply for governmental benefits or
provide proof of receipt of governmental benefits; or the tenant’s waiver of
any rights to a notice under RCW 59.12.030 or related provisions before a
writ of restitution is issued.
(4) It is a defense to an eviction under RCW 59.12.030(3) that a
landlord did not offer a repayment plan in conformity with this section.
(5) To the extent available funds exist for rental assistance from a
federal, state, local, private, or nonprofit program, the tenant or landlord
may continue to seek rental assistance to reduce and/or eliminate the unpaid
rent balance.

(Emphasis added.) RCW 59.18.255(5), referenced in RCW 59.18.630(3)(c), defines

“source of income” as including “benefits or subsidy programs including housing

assistance, public assistance, emergency rental assistance. . . .” (Emphasis added).

Our state’s legislature expressed the intent behind RCW 59.18.630:

provide legal representation for qualifying tenants in eviction cases,
establish an eviction resolution pilot program to address nonpayment of
rent eviction cases before any court filing, and ensure tenants and
landlords have adequate opportunities to access state and local rental
assistance programs to reimburse landlords for unpaid rent and preserve
tenancies.

LAWS OF 2021, ch. 115, § 1 (emphasis added).

The trial court also ruled that Weidner Property Management offered a reasonable

payment plan. In its oral ruling, the court did not expressly address any interface

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between RCW 59.18.410(2) and RCW 59.18.630. The trial court impliedly ruled that, as

part of a reasonable proposal for repayment, the landlord need not accept new lease terms

demanded by the administrator of an emergency rental assistance program. Nevertheless,

the trial court did not explicitly declare that the landlord always acts reasonably, under

RCW 59.18.630, when declining to accept funds from an entity requiring new lease

terms. And the trial court did not expressly weigh the demand of CDCAC for new terms

as one factor in determining the reasonableness of Weidner’s offer and refusal to accept a

counteroffer.

On appeal, Brian Cutsforth and Jena Kincheloe argue that requiring landlords to

accept the mandatory conditions accompanying emergency rental assistance furthers the

legislative purpose of RCW 59.18.630. According to Cutsforth and Kincheloe, the

legislature deliberately omitted in RCW 59.18.630 an exception or limitation allowing

landlords to refuse emergency rental assistance upon being required to accept additional

mandatory terms in order to receive the assistance. Therefore, RCW 59.18.410(2)’s

limitation does not apply to RCW 59.18.630. Finally, according to Cutsforth and

Kincheloe, Weidner’s rejection of emergency rental assistance violated RCW 59.18.630

and RCW 59.18.255. Weidner responds that RCW 59.18.410(2) allows housing

providers to refuse to accept conditions unrelated to the provision of necessary payment

information and documentation and that such refusal does not turn any repayment plan

offer into an unreasonable offer.

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The Residential Landlord Tenant Act of 1973 (RLTA), chapter 59.18 RCW, a

remedial statute, calls for both strict and liberal construction. The RLTA must be strictly

construed by courts “in favor of the tenant,” and liberally construed “to accomplish the

purpose for which it was enacted.” Gebreseralse v. Columbia Debt Recovery, 24 Wn.

App. 2d 650, 658, 521 P.3d 221 (2022).

The court’s primary duty in statutory interpretation is to discern and implement the

legislature’s intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).

In so doing, the court relies on many tested, commonsensical, and intelligent principles to

divine the meaning of the statute, principles employed when interpreting other important

and even sacred texts. State v. Jimenez, 200 Wn. App. 48, 52, 401 P.3d 313 (2017).

We review a statute’s plain language, the context of the statute, any related

statutory provisions, and the statutory scheme as a whole to determine legislative intent.

Desmet v. Department of Social & Health Services, 17 Wn. App. 2d 300, 310, 485 P.3d

356 (2021), aff’d, 200 Wn.2d 145, 514 P.3d 1217 (2022). In this appeal, we do not strive

to discern the intent behind one statute, but the intent of the legislature as a whole when

two statutes address the same subject matter and the two seemingly conflict. Both

RCW 59.18.410(2) and RCW 59.18.630 govern an emergency rental assistance

program’s payment of rent owed by a tenant.

When performing statutory interpretation, courts must resolve apparent conflicts

between statutes to give effect to each of them. Tunstall v. Bergeson, 141 Wn.2d 201,

211, 5 P.3d 691 (2000). To resolve such a conflict, courts generally give preference to

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the more specific and more recently enacted statute. Tunstall v. Bergeson, 141 Wn.2d

201, 211 (2000). This latter principle is internally inconsistent when the more specific

statute is the earlier statute.

After many readings of both RCW 59.18.410(2) and RCW 59.18.630, we

conclude that a landlord’s refusal to accept new lease terms in exchange for rent payment

does not necessarily or otherwise excuse the landlord from offering a reasonable

repayment proposal under RCW 59.18.630. Instead, the landlord’s refusal to accept new

lease terms should be considered one of many factors when the trial court weighs whether

or not the landlord proposed reasonable payment terms.

RCW 59.18.410(2)’s provision that the landlord need not accept new lease terms

demanded by the entity providing the emergency rental assistance program payment is

the more specific of the statutory provisions addressing our question. Obviously, the

principle of law encouraging us to apply the more specific statute favors Weidner

Property Management.

All other principles of statutory construction favor Brian Cutsforth and Jena

Kincheloe. Some of the new lease terms demanded by the emergency rental assistance

program could impose minimal hardship on the landlord. Thus, denying the repayment

on this ground would be unreasonable. When assessing the reasonableness of the

landlord’s proposal, the trial court still considers the needs of the landlord. The trial

court may consider the extent of the hardship on the landlord by the new lease terms

together with other factors relevant to a reasonable proposal.

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Weidner Property Management, LLC v. Cutsforth

The legislature enacted RCW 59.18.630’s demand that the landlord relay a

reasonable offer for repayment after RCW 59.18.410(2). The legislature adopted

RCW 59.18.630 in the midst of a once in a century emergency created by a pandemic.

The legislature intended compromises by both the tenant and the landlord with monetary

assistance from the government. Although Brian Cutsforth’s behavior at the apartment

complex was not always exemplary, Cutsforth and Kincheloe could not pay rent due to

illnesses. Thus, payment for past-due rent by an emergency rental assistance program

serves the purpose behind RCW 59.18.630.

Perhaps omission of language excusing the landlord from accepting a reasonable

offer if such offer required new lease terms was intentional on the part of the legislature

because it concluded that the terms of RCW 59.18.410(2) already afforded this excuse.

Nevertheless, since the legislature could have included such language in RCW 59.18.630

to explicitly express such a desire, the absence of such language suggests that the

legislature did not always wish for the landlord to avoid cooperating with the emergency

rental assistance program if the program demanded additional lease terms. When the

legislature employs certain language in one instance and different language in another,

the legislature evidences a difference in legislative intent. Seeber v. Public Disclosure

Commission, 96 Wn.2d 135, 139, 634 P.2d 303 (1981). We assume this principle applies

when the legislature omits certain language in a different statute.

Finally, we note that, although both statutes govern the long process from

nonpayment of rent to eviction from residential premises, each statute addresses a distinct

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Weidner Property Management, LLC v. Cutsforth

part in the process. RCW 59.18.630 governs at a time before filing of the unlawful

detainer action, when more flexibility in the landlord is desirable. RCW 59.18.410(2)

controls after entry of a judgment in the unlawful detainer action when compromise is

less desirable.

Brian Cutsforth and Jena Kincheloe argue more that Weidner Property

Management refused a counteroffer for a repayment plan rather than failed to propose a

reasonable schedule for repayment. RCW 59.18.630 only references a duty imposed on

the landlord to offer a reasonable schedule. Nevertheless, any landlord offer should be

viewed in the mirror with a tenant counteroffer since the counteroffer may show the

landlord’s offer to be unreasonable.

We do not know whether the trial court determined Weidner Property

Management’s proposal of a repayment schedule for Brian Cutsforth and Jena Kincheloe

was reasonable after consideration of the counterproposal that required new lease terms.

Stated differently, we do not know if the trial court persisted in its view that the landlord

need not consent to different lease terms when proposing a repayment plan under

RCW 59.18.630. This court may remand a case to the superior court when we are

uncertain as to the court’s ruling and in order for the trial court to clarify its ruling. Brear

v. Washington State Highway Commission, Department of Highways, 63 Wn.2d 815,

820, 389 P.2d 276 (1964).

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Weidner Property Management, LLC v. Cutsforth

Source-of-Income Discrimination

Under RCW 59.18.255, a landlord may not discriminate against a tenant based on

the tenant’s source of payment of rent. Brian Cutsforth and Jena Kincheloe also claim

that Weidner Property Management violated this statute. The trial court dismissed the

claim. Because our ruling on the interface between RCW 59.18.410(2) and

RCW 59.18.630 may impact the decision with regard to whether Weidner violated

RCW 59.18.255, we also direct the trial court to address this cause of action again on

remand.

CONCLUSION

We reverse the trial court’s rulings and remand for further proceedings consistent

with this opinion.

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.

_________________________________
Fearing, C.J.
WE CONCUR:

______________________________
Lawrence-Berrey, J. Birk, J. 1

1
The Honorable Ian S. Birk is a Court of Appeals, Division One, judge sitting in
Division Three pursuant to CAR 21(a).

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