Calportland Company v. Levelone Concrete, Llc ( 2014 )

F 1, L * D
C= P'T CIF C c
1' i sMAR 25 ANI 8: 51
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CALPORTLAND COMPANY, a California No. 43760 -1 - II
corporation,
Appellant, PUBLISHED OPINION
V.
LEVELONE CONCRETE LLC, a Washington
limited liability company; DALTON
BROOKS and YULIA BROOKS, and their
marital community; TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA, a Connecticut corporation;
FERGUSON CONSTRUCTION INC., a
Washington. corporation, - -- - -
BJORGEN, J. — CalPortland Company provided building materials to LevelOne Concrete
LLC, a subcontractor working on the construction of a new Costco building, for which Ferguson
Construction Inc. served as general contractor. After LevelOne failed to pay for the materials,
CalPortland recorded a lien against the Costco property under chapter 60. 04 RCW and later filed
this lawsuit. Before the lawsuit was filed, however, Ferguson recorded a bond in.lieu of claim
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under RCW 60. 04. 161, issued by Travelers Casualty and Surety Co., releasing the Costco
property from the lien. The trial court granted summary judgment in favor of Ferguson and
Travelers because CalPortland had failed to serve the summons and complaint on Costco and had
not specifically requested foreclosure of the lien in its pleadings. In this appeal by CalPortland,
we hold that service of process on Costco was no longer necessary after Ferguson had recorded
the bond and that CalPortland' s complaint sufficiently identified the relief requested.
Accordingly, we reverse and remand for further proceedings.
FACTS
The parties do not dispute the underlying facts in their briefing. Costco contracted with
Ferguson to build a new store in Clark County, and Ferguson subcontracted with LevelOne to
perform work on the project. LevelOne then contracted with CalPortland for delivery of
concrete mix, but never paid for the materials delivered.
CalPortland properly recorded a claim of lien under RCW 60. 04. 091 against the Costco
property on February 2, 2011. In order to release the Costco property from the lien, on April 1,
2041 Ferguson recorded a bond in lieu of claim under RCW-60-.04.-161 . naming itself as principal -
and Travelers as surety. CalPortland filed its complaint on August 15, 2011.
CalPortland' s complaint named various defendants, including Ferguson, Travelers
collectively, " Ferguson "), and LevelOne, but did not name Costco. CalPortland never served
Costco with the complaint. The complaint stated five causes of action, one of which was entitled
Release of Lien Bond" and alleged the facts set forth above, as well as certain other facts
bearing on the validity of the lien. Clerk' s Papers ( CP) at 5 - 10. In its prayer for relief,
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CalPortland requested "[ j] udgment against Ferguson and Travelers for the principal amount of
not less than $ 327, 576. 31," but did not specifically seek to " foreclose" on the lien. CP at 10.
Ferguson answered the complaint, raising various defenses. On March 12, 2012,
Ferguson moved for summary judgment on the grounds that
CalPortland failed to commence a lien foreclosure action within 8 months of
recording its claim of lien, and failed to serve the owner of the affected property
within 90 days of filing its Complaint ... as required by RCW 60. 04. 141 and
60. 04. 161.
CP at 25 -26. Ferguson and Travelers also requested costs and attorney fees under RCW
64. 04. 181.
The trial court granted the motion for summary judgment, setting forth the reasons in a
memorandum decision. It explicitly based its decision on " reasons provided in the defendants'
briefing," and concluded that CalPortland
failed to satisfy the statutory requirements. First, the plaintiff failed to serve the
owner of the subject property within ninety days of initiating an action to enforce
a lien. RCW 60. 04. 141. The plaintiff failed to serve Costco.
Secondly to prevail,
Calportland must adjudicate the merits of the underlying lien, and must seek to
foreclose on it. Suing on the bond itself is insufficient. They must first prove the
validity of the underlying lien.
CP at 146. The trial court ultimately entered judgment in favor of Ferguson for costs and
attorney fees. CalPortland timely appeals.
ANALYSIS
CalPortland argues that it complied with the requirements of chapter 60. 04 RCW and that
the court below therefore erred in granting Ferguson' s motion for summary judgment.
CalPortland that the statute does not require service of process on the owner
Specifically, asserts
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of the real property improved by a lien claimant' s labor or materials once a properly recorded
bond in lieu of claim has released the realty from the lien. Ferguson counters that, under the
plain language of the statute, the lien expires if the lien claimant does not timely serve the real
property owner with the summons and complaint, and thus a claimant who fails to do so cannot
seek to collect on the bond. Ferguson further argues that CalPortland did not adequately plead
its claim because it did not specifically seek to foreclose on the lien. We agree with CalPortland.
1. STANDARD OF REVIEw
Summary judgment is warranted if there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law. CR 56. We review a grant of
summary judgment de novo, performing the same inquiry as the trial court. Torgerson v. One
Lincoln Tower, LLC, 166 Wash. 2d 510, 517, 210 P.3d 318 ( 2009). A party moving for summary
judgment bears the burden of demonstrating that there is no genuine issue of material fact.
Atherton Condo. Apartment -Owners Ass' n Bd. of Dir. v. Blume Dev. Co., 115 Wash. 2d 506, 516,
799 P.2d 250 ( 1990). In determining whether summary judgment was proper, we consider all
facts, and the reasonable-inferences therefrom in the light most favorable to the nonmoving -
party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash. 2d 16, 26, 109 P.3d 805 ( 2005).
A court should grant summary judgment only if reasonable persons could reach but one
conclusion from all the evidence. Vallandigham, 154 Wash. 2d at 26.
The meaning of a statute is a question of law we also review de novo. Dep' t ofEcology
v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). The " fundamental objective" of
the Legislature' intent." Campbell &
statutory interpretation " is to ascertain and out s
carry
Gwinn, 146 Wash. 2d at 9 -10. Where a " statute' s meaning is plain on its face, then the court must
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give effect to that plain meaning as an expression of legislative intent." Campbell & Gwinn, 146
Wash. 2d at 9 - 10. Such plain meaning " is discerned from all that the Legislature has said in the
statute and related statutes which disclose legislative intent about the provision in question."
Campbell & Gwinn, 146 Wash. 2d at 11 - 12. If "
the statute remains susceptible to more than one
reasonable meaning" after such inquiry, it is ambiguous and we must " resort to aids to
construction, including legislative history." Campbell & Gwinn, 146 Wash. 2d at 12.
II. THE CONSTRUCTION LIEN
Washington statutes provide that, given proper notice to the owner of the improved
property,
any person furnishing labor, professional services, materials, or equipment for the
improvement of real property shall have a lien upon the improvement for the
contract price of labor, professional services, materials, or equipment furnished at
the instance of the owner, or the agent or construction agent of the owner.
RCW 60. 04. 021. The statute specifies that
t] he lot, tract, or parcel of land which is improved is subject to a lien to the extent
of the interest of the owner at whose instance, directly or through a common law
or construction agent the labor, professional services, equipment, or materials
were furnished
RCW 60. 04. 051. These liens were formerly known as " mechanics" or " materialmen' s liens,"
but are now simply referred to as " construction liens." 27 ,MARJORIE ROMBAUER, WASHINGTON
PRACTICE: CREDITORS' REMEDIES — DEBTORS' RELIEF § 4. 5 1, at 347 ( 1998).
The statute imposes a time limit on such liens, however, within which the party seeking
to collect must file suit and serve process in order to preserve its rights:
n] o lien created by this chapter binds the property subject to the lien for a longer
period than eight calendar months after the claim of lien has been recorded unless
an action is filed by the lien claimant within that time in the superior court in the
county where the subject property is located to enforce the lien, and service is
No. 43760 -1 - II
made upon the owner of the subject property within ninety days of the date of
filing the action.
RCW 60. 04. 141. Thus, to preserve a claim against the property, the claimant must file suit
within 8 months of recording the lien and then serve the property owner within 90 days of filing
suit. Bob Pearson Constr., Inc. v. First Cmty. Bank, 111 Wash. App. 174, 179, 43 P.3d 1261
2002).
The statute also allows the owner or certain other interested parties to release the realty
from the lien by recording a " bond in lieu of claim ":
Any owner of real property subject to a recorded claim of lien under this chapter,
or contractor, subcontractor, lender, or lien claimant who disputes the correctness
or validity of the claim of lien may record, either before or after the
commencement of an action to enforce the lien ... a bond issued by a surety
company authorized to issue surety bonds in the state.... The condition of the
bond shall be to guarantee payment of any judgment upon the lien in favor of the
lien claimant entered in any action to recover the amount claimed in a claim of
lien, or on the claim asserted in the claim of lien. The effect of recording a bond
shall be to release the real property described in the notice of claim of lien from
the lien and any action brought to recover the amount claimed. Unless otherwise
prohibited by law, if no action is commenced to recover on a lien within the time
specified in RCW 60. 04. 141, the surety shall be discharged from liability under
the bond.
RCW 60. 04. 161. The purpose of this provision " is to allow a party to file a bond to support
transferring to the bond a lien against the property to allow the party supplying the bond to free
up the property for conveyance." Olson Eng' g, Inc. v. KeyBank, 171 Wash. App. 57, 66, 286 P.3d
390 (2012). Thus, filing the bond does not destroy the lien entirely, but instead transfers the lien
from the real property to the bond. DBM Consulting Eng' rs, Inc. v. U.S. Fid. & Guar. Co., 142
Wn. App. 35, 42, 170 P.3d 592 ( 2007) ( holding that the " lien bond releases the property from the
lien, but the lien is then secured by the bond ").
on
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A. CalPortland' s Failure to Serve Process on Costco
The essence of Ferguson' s service -of-process argument, on which the trial court relied in
part in granting summary judgment, is that CalPortland' s failure to serve Costco with the
summons and complaint " rendered its action absolutely void." Br. of Resp' t at 15 - 16 ( citing
RCW 60. 04. 141); Diversified Wood Recycling, Inc. v. Johnson, 161 Wash. App. 859, 251 P.3d 908
2011); Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., 62 Wash. App. 158, 813 P.2d 1243
1991). Ferguson maintains that this follows from a plain reading of the statute, regardless of
whether Costco had any actual interest in the litigation; pointing out that the statute defines the
property subject to the lien as "`[ t] he lot, tract, or parcel of land which is improved. "' Br. of
Resp' t at 18 ( quoting RCW 60. 04. 051). CalPortland contends that it would have been improper
to serve Costco because the lien had already transferred to the bond at the time that CalPortland
filed suit, and Costco therefore had no further interest in the matter.
Ferguson' s argument raises an issue of first impression. Although several cases
involving chapter 60. 04 RCW have turned on questions related to service of process and the
filing of a bond in lieu of claim, in none ofthese has the party seeking to collect filed suit after -
the bond in lieu of claim had already been recorded. Because the plain language of the statute
establishes that Costco' s realty was not " property subject to the lien" for purposes of RCW
60. 04. 141' s procedural requirements, we reject Ferguson' s argument and hold CalPortland' s
service of process on Travelers and Ferguson sufficient.
The analysis must begin with the language of the statute. Ferguson correctly argues that
the statute' s language clearly establishes its meaning and that this court should therefore not
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engage in statutory interpretation. Contrary to Ferguson' s assertions, however, the statute' s plain
meaning establishes that CalPortland did not need to serve process on Costco.
As set forth above, a construction lien cannot bind property for more than eight months
unless the claimant files suit within that time and " service is made upon the owner of the subject
date RCW 60. 04. 141. Under RCW
property within ninety days of the of filing the action."
60. 04.021 and .051, also set out above, Costco' s realty was the property subject to the lien when
it was first recorded. By operation of law, however, Ferguson' s act of recording the bond
release[ d] the real property described in the notice of claim of lien from the lien and any action
brought to recover the amount claimed." RCW 60. 04. 161. As we have noted, "[ a] lien bond
releases the property from the lien, [ and] the lien is then secured by the bond." DBM Consulting
Eng' rs, Inc., 142 Wash. App. at 42. As a result, once a bond in lieu of claim is recorded, the lien is
transferred to that bond. Olson Eng' g, 171 Wash. App. at 66.
The bond did not name Costco as a principal or surety. Thus, when CalPortland filed
suit, Costco' did not have an ownership interest in any property " subject" to the lien within the
meaning - RCW 60: 04: 141 - Iri fact, - plain terms of the statute rendered Costco' s property
of the
immune from " any action brought to recover the amount claimed" by CalPortland. RCW
60. 04. 161. CalPortland, therefore, had no duty to serve Costco with the summons and
complaint. The only parties with an interest in the bond were Ferguson and Travelers: the
principal and surety named in the security. Thus, the trial court erred in relying on CalPortland' s
failure to serve Costco in granting summary judgment to Ferguson.
Ferguson points out that in a recent case involving chapter 60. 04 RCW, this court
accepted the definition of "owner" as "` the record holder of the legal title, "' and held that RCW
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60. 04. 141 " obligated [ the claimant] to serve the foreclosure action upon the record holder of the
legal title of the property designated in the claim of lien within 90 days of filing the action, in
order to keep the lien alive." Johnson, 161 Wash. App. at 875 ( quoting 27 RoMBAUER, supra, at
347 n. 1). Ferguson argues that this authority required CalPortland to serve Costco.
The definition employed by the Johnson court comes from a leading treatise, in which
Professor Rombauer notes that, based on the legislative history, the term " owner" in RCW
60. 04. 021 " appears to mean the record holder of the legal title." 161 Wash. App. at 875; 27
RoMBAUER, supra, at 347 n. l. The question addressed at that point by Professor Rombauer
involved at whose instance the materials or services must be provided in order to give rise to a
valid construction lien. 27 RoMBAUER, supra, at 347 n. 1. Here, no one disputes that
CalPortland' s provision of materials initially gave rise to a valid construction lien.
More importantly, the Johnson court did not face the issue presented here, because the
property owner in that case never posted a bond in lieu of claim at all, let alone prior to the filing
of the suit.' 161 Wash. App. at 862 -66. In the present appeal, the property designated in the claim
of lien had already been released by operation of law from "the lien and any action brought-to -- -
recover the amount claimed" under RCW 60. 04. 161. After this release, "[ t] he lien [ was] then
If anything, the result reached in Johnson tends to support CalPortland' s argument, not
Ferguson' s. The Johnson court held the claimant' s service of process on one Harold Johnson
sufficient, despite the fact that Johnson did not own the property against which the lien was
claimed, because Johnson had held himself out as the owner and shared an address with the
actual owner of record, a different person also named 161 Wash. App. at 862 -66,
Harold Johnson.
884. Thus, the court refused to allow a technical defect in service of process to defeat a plainly
valid claim.
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secured by the bond rather than the [ real] property." DBM Consulting Eng' rs, 142 Wash. App. at
40. RCW 60. 04. 141 requires service on " the owner of the subject property." After the releases
triggered by the recording of the bond, Costco could not be deemed the owner of the subject
property under RCW 60. 04. 141. The holding in Johnson is not to the contrary.
Ferguson also points out that, under certain circumstances, a property owner could be
liable for more than the amount of the release -of lien bond, and argues that this supports
-
interpreting the statute to require service on the real property owner even where such a bond has
been posted. Br. of Resp' t at 16 -18 ( citing RCW 60. 04. 181; Olson Eng' g, 171 Wash. App. at 64;
Irwin Concrete, Inc. v. Sun Coast Prop., Inc., 33 Wn. App. 190, 653 P.2d 1331 ( 1982)). These
authorities, though, do not bear on the question presented.
The first authority cited, RCW 60. 04. 181, lays out the procedure a court must follow
when distributing funds after a construction lien is foreclosed and the encumbered property has
been sold. It provides that where " a lien is established, the judgment shall provide for the
enforcement thereof upon the property liable," and allows for a personal judgment in the amount
of the deficiency between the foreclosure sale proceeds and the underlying debt, which " may be
any party liable therefor." RCW 60. 04. 181( 2). The statute says
collected by execution against
nothing about the identity of "the property liable," and thus has no bearing on whom a claimant
must serve in order to preserve its lien under RCW 60. 04. 141.
In Olson Engineering, another authority cited by Ferguson, KeyBank had recorded a
bond in lieu of claim after it purchased real property subject to a construction lien, and the trial
court entered a deficiency judgment against the bank when the bond amount proved inadequate
to cover the claimant' s attorney fee award. 171 Wn. App at 62 -64. In the other authority cited
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by Ferguson, Irwin Concrete, a trustee' s sale following foreclosure on a deed of trust had
extinguished a subcontractor' s subsequent construction lien against a parcel. We nonetheless
held the successful bidder liable to the subcontractor on a theory of unjust enrichment. Irwin
Concrete, 33 Wn. App. at 194 -95, 198. In neither of these cases, however, did the court base the
real property owner' s liability on the ground that the realty was subject to the construction lien.
KeyBank was liable regardless because it had named itself as principal when it recorded the
bond in lieu of claim, and the trial court in Irwin Concrete relied on unjust enrichment precisely
because it had dismissed the lien at issue.
That the owner of the real property improved could under certain circumstances have
personal liability on a claim giving rise to a construction lien, notwithstanding the recording of a
bond in lieu of claim, does not illuminate what the " subject property" is for purposes of RCW
60. 04. 141' s service -of-process requirement. CalPortland' s failure to serve Costco with the
summons and complaint or name it as a defendant might preclude any judgment against Costco,
although we make no ruling on that point, but it does not bear on the validity of CalPortland' s
lien with respect to-the bond recorded by Ferguson:
Because a bond in lieu of claim had already been recorded, the plain meaning of the
statutory language did not require CalPortland to serve Costco. We hold that the trial court erred
in granting summary judgment on the basis of CalPortland' s failure to serve process on Costco.
B. Sufficiency of CalPortland' s Pleadings
The trial court' s alternative basis for granting summary judgment to Ferguson is that
CalPortland did not seek to foreclose on the lien. CalPortland disputes this ruling, arguing that
its complaint properly alleges the existence and validity of the lien. Ferguson argues that the
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complaint does not properly allege these matters, because CalPortland did not specifically plead
foreclosure of the lien. CalPortland' s position is correct.
As an initial matter, Ferguson argues that CalPortland has waived any challenge to the
trial court' s alternative basis for granting summary judgment because it did not properly raise the
issue in its briefing. RAP 10. 3( g) provides that an " appellate court will only review a claimed
error which is included in an assignment of error or clearly disclosed in the associated issue
pertaining thereto." We generally " do not address issues that a party neither raises appropriately
nor discusses meaningfully with citations to authority." Saviano v. Westport Amusements, Inc.,
144 Wn. App. 72, 84, 180 P.3d 874 ( 2008) ( citing RAP 10. 3( a)( 6)). Where a party' s brief makes
perfectly clear what part of the decision below is being challenged, however, we will overlook
the party' s failure to specifically assign error to it, particularly when the text of the brief includes
the disputed portion. In re Disciplinary Proceeding Against Conteh, 175 Wash. 2d 134, 144, 284
P.3d 724 ( 2012) ( citing State v. Neeley, 113 Wash. App. 100, 105, 52 P.3d 539 ( 2002)).
CalPortland' s first assignment of error states that "[ t]he trial court erred in granting
because-CalPortland complied with [chapter --
Ferguson' s] motion for summary judgment ". -". -
60. 04 RCW] its the bond the was released." Br. of
by bringing claim against after real property
Appellant at 1. The brief specifically identifies and quotes in full the trial court' s alternative
basis for its decision, presenting substantial argument as to why that ground did not justify
granting Ferguson' s motion for summary judgment. Even were we to agree with Ferguson that
CalPortland' s assignment of error did not specifically challenge the trial court' s alternative basis
for granting summary judgment, the briefing identifies and reproduces that portion of the trial
court' s decision and makes the nature of the challenge perfectly clear. RAP 1. 2( 9) mandates that
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t] hese rules will be liberally interpreted to promote justice and facilitate the decision of cases
on the merits." Following that mandate, we address the merits of the issue.
CalPortland agrees with the trial court that it must establish the validity of its lien before
it may recover on the bond, but argues that its complaint properly raised the issue. Ferguson
contends that the statute required CalPortland to specifically seek " foreclosure" of its lien within
eight months of recording it, and that failure to strictly comply with the procedural requirement
was fatal to the claim because suits to collect on construction liens are " special proceeding [s].
Br. of Resp' t at 8 - 13. Thus, Ferguson argues, the construction lien would necessarily have
expired because, in a special proceeding, amendments to the pleadings do not relate back to the
time of filing.
CalPortland counters that the words " foreclose" or " foreclosure" are not required under
the statute, and would be inappropriate where the lien is not secured by real property. Reply Br.
of Appellant at 3 -6. Because CalPortland' s complaint alleged all the facts needed to establish the
validity of its lien, and the request for relief satisfied the requirements of the construction lien
statute and the rules - f civil procedure-,we hold-that the trial-court erred in granting summary - -
o
judgment to Ferguson on the basis of the alleged inadequacy of CalPortland'.s pleadings.
The law is clear that CalPortland must establish the validity of its lien before it may
collect on the bond. Olson Eng' g, 171 Wash. App. at 57, 66 ( interpreting RCW 60. 04. 161 such
that " to be entitled to the proceeds of the lien release bond, the lien claimant must obtain a
favorable judgment upon the lien "). In DBM Consulting, for example, the construction lien
claimant prevailed at trial on its breach of contract claim, but did not litigate or obtain judgment
on the validity of its lien. 142 Wash. App. at 41. The DBM court held that the claimant could not
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proceed against the surety named in the bond in lieu of claim because it had not obtained a
judgment foreclosing its lien. 142 Wash. App. at 42. The parties do not dispute this point. The
only question is whether CalPortland' s complaint adequately raised the validity of the lien and
CalPortland' s entitlement to the bond proceeds.
The requirements for a valid construction lien are set forth at RCW 60. 04. 051, and the
procedure for recording such a lien appears at RCW 60. 04. 091. In the fifth cause of action stated
in its complaint, CalPortland alleges all the facts necessary both to give rise to a valid
construction lien and to establish compliance with the recording requirements. The complaint
then discusses the bond in lieu of claim, stating that " Defendants Ferguson and Travelers are
bound to pay CalPortland any sum as CalPortland may recover as a result of its claim of lien,
together with costs of suit." CP at 9. This is a straightforward attempt to litigate the validity of
the lien.
RCW 60. 04. 171 provides that "[ t] he lien provided by this chapter, for which claims of
lien have been recorded, may be foreclosed and enforced by a civil action in the court having
jurisdiction in the mariner prescribed for the judicial foreclosure of a mortgage." The procedure -
for judicial foreclosure of a lien or mortgage is set forth at chapter 61. 12 RCW. Nowhere in that
chapter does the statute specify that a party seeking to foreclose must identify the action as a
foreclosure.
According to the leading practitioner' s treatise on Washington debtor -creditor law,
foreclosure is a form of lawsuit, subject to the civil rules of procedure." 27 RoMBAUER, supra,
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2
3. 5 at 141. With respect to pleadings, the civil rules require only "( 1) a short and plain
statement of the claim showing that the pleader is entitled to relief and (2) a demand for
judgment for the relief to which he deems himself entitled." CR 8( a). The purpose of this
notice rule is to " facilitate a proper decision on the merits." Stansfield v. Douglas
pleading"
146 Wash. 2d 116, 123, 43 P.3d 498 ( 2002) ( internal quotation marks omitted). A chief
County,
purpose of the rules of civil procedure is " to eliminate procedural traps." Gott v. Woody, 11 Wash.
504, 508, 524 P.2d 452 ( 1974). To the extent possible, then, " the rules of civil procedure
App.
should be applied in such a way that substance will prevail over form." First Fed. Say. & Loan
Ass' n of Walla Walla v. Ekanger, 93 Wash. 2d 777, 781 -82, 613 P.2d 129( 1980).
Under the heading " Relief requested," the treatise on debtor -creditor law discussed above
further specifies that, in a judicial foreclosure proceeding,
t]he prayer of the complaint must specify the relief sought. A money judgment is
prayed for from those defendants alleged to have a monetary liability to the
plaintiff; a decree of foreclosure is sought against every entity with either a title
interest, a junior encumbrance, or a possessory interest; and the right to recover a
deficiency is requested or waived and the appropriate redemption period stated.
27 ROMBAUER, supra § 3. 5 at 143. Thus, it appears that, where the plaintiff asserts only the - -
monetary liability of a defendant who does not have a title or possessory interest, a request for a
money judgment would suffice.
Item nine of the relief requested in CalPortland' s complaint is a "[ j] udgment against
Ferguson and Travelers for the principal amount of not less than $ 327, 576. 31." CP at 10. The
2
Ferguson argues that these are special proceedings under CR 81. Assuming this to be the case,
that rule does not affect our analysis. CR 81( a) states that the civil rules shall govern all civil
proceedings, "[ e] xcept where inconsistent with rules or statutes applicable to special
proceedings." Nothing in relevant statutes or other rules requires explicit mention of "foreclose"
or " foreclosure" in proceedings such as this. Therefore, the statutes and civil rules we discuss
here resolve this issue.
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complaint also requests costs and fees under RCW 60. 04. 181. With this, the complaint
contained a concise statement of the nature of the claim and the facts entitling CalPortland to
relief, and demanded the remedy to which CalPortland thought itself entitled: a money
judgment.. The attorney fee request cited to the relevant statute. The complaint gave Ferguson
sufficient notice of the nature of the claim and the matters likely to be at issue.
Requiring dismissal of the claim simply because CalPortland failed to use the word
foreclosure" elevates form over substance. Division One of this court recently rejected a
similar argument:
Infinity contends that while the court' s order provides that Stonewood is entitled
to " execute" on the bond, the order cannot obligate the surety because it does not
specifically " foreclose" the lien as required by [ DBM Consulting Engineers, Inc.
v. U.S. Fidelity & Guaranty Co., 142 Wn. App. 35, 170 P.3d 592 ( 2007)]. This
argument elevates form over substance and misreads DBM, which requires that
the validity of the mechanics' lien be litigated before execution on the release of
lien bond is appropriate. DBM does not impose vocabulary requirements for
judgments.
Stonewood Design, Inc. v. Heritage Homes, Inc., 165 Wash. App. 720, 725, 269 P.3d 297 ( 2011).
Nor do we read DBM to impose such vocabulary requirements on a party' s pleadings.
CalPortland' s complaint specified the appropriate relief and the basis for that relief with
sufficient clarity to allow Ferguson to prepare a defense. We reverse the grant of summary
judgment and remand for adjudication of the validity of CalPortland' s lien.
ATTORNEY FEES
CalPortland also assigns error to the trial court' s award of costs and fees to Ferguson.
Because we reverse the trial court' s grant of summary judgment to Ferguson, we also reverse the
trial court' s fee award.
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Both CalPortland and Ferguson request costs and fees on appeal. RCW 60. 04. 181( 3)
allows for fee awards to the party prevailing before this court in actions involving construction
liens. Because we remand for further proceedings, however, the prevailing party remains to be
determined, and thus no fee award is warranted. If CalPortland prevails on remand, it will be
entitled to the reasonable costs and fees it incurred in this appeal. See Stieneke v. Russi, 145 Wn.
App. 544, 572, 190 P.3d 60 ( 2008).
We reverse and remand for further proceedings.
BJ kfGEN, T
We concur:
l i
3
J3OHANSON, A.C. J.
Mme, J.
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