parties to this suit have waged protracted litigation, yet
only recently did defendant WaferTech LLC assert that the
named plaintiff lacked capacity to sue. Specifically,
WaferTech argued that there was no such corporate entity as
Business Services of America II Inc., as the
plaintiff had identified itself. The "true"
plaintiff, Business Service America II Inc. (BSA), asked the
trial court to amend the caption to correct the misnomer, but
the trial court held that as named in the caption the
plaintiff lacked the capacity to sue. The Court of Appeals
affirmed, and BSA petitioned for this court's review.
Because WaferTech waived any right to protest the misnomer by
participating in years of litigation under the erroneous
caption, we grant review and reverse the Court of Appeals.
case began in the mid-1990s when WaferTech constructed a
large industrial facility in Camas. It hired Meissner Wurst
Zander, U.S. Operations Inc. as its general contractor, and
Meissner in turn hired Natkin/Scott as a joint venture
subcontractor to handle a specialized aspect of the project.
Meissner eventually terminated Natkin/Scott for alleged
safety violations. In response, Natkin/Scott filed a lien on
the WaferTech property for $7.6 million for furnished labor,
material, and equipment. Natkin/Scott then assigned its
rights and claims to BSA, a corporation apparently created
for the sole purpose of pursuing the Natkin/Scott claims.
filed an amended complaint that listed the plaintiff as
"Business Services of America II, Inc., " rather
than BSA's correct incorporated name, "Business
Service America II, Inc." The trial court eventually
entered judgment for WaferTech. In 2004, the Court of Appeals
largely affirmed but remanded for trial on a lien foreclosure
claim. Bus. Servs. of Am. II, Inc. v. WaferTech,
LLC, noted at 120 Wn.App. 1042, 2004 WL 444724.
Following remand, the case went dormant. BSA became a void
corporation in Delaware as of 2006, then went through a
receivership and changed ownership. In 2009, the then-owner
of BSA noted the case for trial on the lien claim. The trial
court dismissed the suit, but the Court of Appeals reversed
and this court affirmed on the basis the dismissal was
improper under CR 41(b)(1) because the case had already been
noted for trial. Bus. Servs. of Am. II, Inc. v.
WaferTech, LIC, 174 Wn.2d 304, 313, 274 P.3d 1025
remand, BSA filed a third amended complaint, asserting only
its sole remaining claim for lien foreclosure. Again, the
amended complaint listed the plaintiff as "Business
Services of America II, Inc." WaferTech moved
for summary judgment, arguing that a previous settlement
between Meissner and Natkin/Scott had completely offset the
lien claim. In 2013, the trial court granted WaferTech's
motion and dismissed the third amended complaint, awarding
costs and attorney fees to WaferTech. BSA filed a notice of
the filing of BSA's appeal, WaferTech moved in the Court
of Appeals to dismiss the appeal, asserting that there was no
record that a company named Business Services of America II
Inc. had ever existed and, thus, BSA was not an
"aggrieved party" entitled to appeal under RAP 3.1.
A commissioner of the Court of Appeals denied the motion
without prejudice to WaferTech raising the issue in its
responsive brief. BSA subsequently filed in superior court a
"Motion to Correct Judgment and Amend Pleading, or to
Substitute a Party" under CR 60(a), acknowledging that
the complaint had been erroneously titled years earlier and
that the correct name of the corporation is Business Service
America II Inc. (not "Services of), which was
incorporated under Delaware law in 1999. The trial court
denied the motion, and BSA appealed that ruling.
Court of Appeals consolidated the appeals. Finding no error
in the trial court's denial of BSA's CR 60(a) motion,
the court affirmed the denial. As a result, in the
court's view, "Business Services of America
II, Inc., " remained the appellant in the case. But as
to WaferTech's argument that there was no such legal
entity with the capacity to sue, the court held that the
issue could not be determined on the appellate record. The
court therefore remanded for a factual determination of the
named plaintiffs legal status and its ability to pursue an
appeal against WaferTech. See Bus. Servs. of Am. II, Inc.
v. WaferTech LLC, No. 45325-8-II (Wash.Ct.App. Oct. 21,
In light of the remand order, the court did not reach
BSA's substantive challenges to the 2013 summary judgment
and the award of attorney fees to WaferTech.
remand, BSA moved for a ruling that the improper heading was
simply a misnomer and that WaferTech had known since 2001
that "BSof A" was the same entity as
"BSA." The trial court instead viewed the remand
order as strictly limiting it to determining whether the
named plaintiff, as entitled, was a legal entity. Plaintiffs
counsel admitted that the misnamed company did not exist. The
court entered factual findings that "BSof A" was a
nonentity with no legal standing and accordingly dismissed
the amended complaint. The Court of Appeals affirmed, and in
light of its holding, it again did not reach BSA's
substantive challenges to the summary judgment order and the
attorney fees award.
filed a petition for review in this court. We grant the
petition and reverse the Court of Appeals.
any objection to the capacity of a business to bring suit
based solely on the identity of the named plaintiff must be
raised in a preliminary pleading or by answer or the
objection is deemed waived. See Dearborn Lumber Co. v.
Upton Enters., Inc., 34 Wn.App. 490, 493, 662 P.2d 76
(1983) ("doing business as" objections only go to
capacity; such objections were waived); Crosier v.
Cudihee, 85 Wash. 237, 239, 147 P. 1146 (1915)
(objection that party was doing business under assumed name
without complying with "doing business as"
regulations was waived); Lee v. Lee, 3 Wash. 236,
239, 28 P. 355 (1891) (objection to misnomer of the plaintiff
waived by filing an answer on the merits). Waiver
particularly results when the parties have appeared in court
and significantly participated in the litigation without
making any objection. See Crosier, 85 Wash, at 239.
Such is the case here.
parties have known each other and litigated this case for
many years. The parties have met in superior court, in
multiple appeals in the Court of Appeals, and in a fully
briefed and argued review in this court. As the above
citations to the appellate decisions in this case indicate,
the case has been consistently captioned identifying BSo/A as
the named plaintiff, yet until now WaferTech has not
objected. Throughout this litigation, it has won judgments
against BSA for attorney fees and has apparently already
collected payment from BSA on some of those judgments. In
these circumstances, WaferTech has waived any objection to
the misnomer in the captioning.
WaferTech waived any objection, the trial court erred in
denying BSA's request to correct the caption so it could
proceed with the appeal. WaferTech argues that BSA may not
now challenge the trial court's initial denial of
BSA's motion to correct the caption because it did not
seek this court's review of the Court of Appeals 2014
decision affirming the denial and remanding, making that
decision the law of the case. But the law of the case
doctrine is discretionary, and this court will not apply the
doctrine in a manner that perpetuates an error made in an
earlier appeal of the same case, causing a manifest
injustice. Greene v. Rothschild,68 Wn.2d 1, 8, 414
P.2d 1013 (1966); RAP 2.5(c); see also State v.
Worl,129 Wn.2d 416, 424-25, 918 P.2d 905 (1996).
Dismissing a case after more than a decade of litigation
simply because of a misnomer in the ...