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CalPortland Co. v. Levelone Concrete, LLC

Court of Appeals of Washington, Division 2

March 25, 2014

CalPortland Company, Appellant ,
LevelOne Concrete, LLC, et al., Respondents

Appeal from Clark Superior Court. Docket No: 11-2-03236-5. Date filed: 07/02/2012. Judge signing: Honorable Richard a Melnick.

Michael E. McAleenan Jr. and Russell A. Knight (of Smith Alling PS ), for appellant.

Douglas R. Roach (of Ahlers & Cressman PLLC ), for respondents.

AUTHOR: Thomas R. Bjorgen R Bjorgen, J. We concur: Jill M Johanson, A.C.J., Bradley A. Maxa, J.


Page 1262

Bjorgen, J.

[180 Wn.App. 382] ¶ 1 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 under RCW 60.04.161, issued by Travelers Casualty and Surety Company, 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.


¶ 2 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.

¶ 3 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, 2011 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.

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¶ 4 CalPortland's complaint named various defendants, including Ferguson, Travelers (collectively Ferguson), and [180 Wn.App. 383] 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, 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.

¶ 5 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 60.04.181.

¶ 6 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, Cal[P]ortland 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.

[180 Wn.App. 384] ANALYSIS

¶ 7 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. Specifically, CalPortland asserts that the statute does not require service of process on the owner 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.

I. Standard of Review

¶ 8 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 Wn.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 Dirs. v. Blume Dev. Co., 115 Wn.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 Wn.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 Wn.2d at 26.

[180 Wn.App. 385]¶ 9 The meaning of a statute is a question of law we also review de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). The " fundamental objective" of statutory interpretation

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" is to ascertain and carry out the Legislature's intent." Campbell & Gwinn, 146 Wn.2d at 9. Where a " statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." Campbell & Gwinn, 146 Wn.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 Wn.2d at 11. If " the statute remains susceptible to more than one reasonable meaning" after such inquiry, it is ambiguous and we ...

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