Opinion
No. 24940-9-III.
June 19, 2008.
Appeal from a judgment of the Superior Court for Asotin County, No. 02-2-00351-1, Wallis W. Friel, J. Pro Tem., entered July 19, 2005.
Affirmed by unpublished opinion per Stephens, J. Pro Tem., concurred in by Sweeney and Brown, JJ.
Cotton Rolls d/b/a Cotton Club appeals an order granting summary judgment and attorney fees in favor of Rob, Robert, and Joan Courville (Courville). Cotton Club contends: (1) Cotton Club and SD Construction were a joint venture for purposes of the contractor's registration act; (2) alternatively, if Cotton Club and SD Construction are not considered a joint venture, Cotton Club was still in substantial compliance with the contractor's registration act; (3) there can be no award of attorney fees to Courville, because summary judgment was granted to Courville on the basis of the contractor's registration act only, not the mechanic's lien statute allowing for fees. We affirm.
FACTS
In January 2002, appellant Cotton Club, which was in the construction business, approached bookkeeper Shelley Fischer about a business arrangement. Based on the agreement they reached, Cotton Club (owned by Cotton Rolls) would remain in the construction business, and Shelly Fischer would form a sole proprietorship known as SD Construction, which would become registered and bonded under Washington's contractor's registration act, RCW 18.27.080. On Cotton Club jobs in which the bidder was required to prove compliance with the contractor's registration act, SD Construction's license would be used by Cotton Club. On three projects, including the one at issue in this case, SD Construction provided the bond, insurance, and contractor's registration license to allow Cotton Club to demonstrate compliance with the contractor's registration act.
Larry Upchurch, acting on respondent Courville's behalf, contracted with Cotton Club to construct a car wash in Clarkston, Washington. Cotton Club agreed to the contract and informed Mr. Upchurch that Cotton Club was going to bring in registered contractor SD Construction, which would provide the appropriate licenses, bonds, and insurance for the car wash project.
Cotton Club hired subcontractors to complete the proposed structure. Only the Cotton Club bank account was used for checks and deposits. SD Construction had no involvement with the subcontractors, never was near a jobsite, and knew nothing about the specifications of the car wash construction.
Mr. Upchurch failed to pay Cotton Club for the car wash project for several weeks. On March 31, 2003, upon the instruction of Cotton Club, SD Construction then filed a lien against Mr. Upchurch and Courville in the sole name of Cotton Club, seeking $73,540.47. SD Construction was owed nothing from Mr. Upchurch at that time.
On March 24, 2004, Courville filed a summary judgment motion against Cotton Club/SD Construction seeking dismissal of the lien. Cotton Club opposed the motion. The trial court granted Courville's summary judgment based on Cotton Club's failure to meet the requirements of the contractor's registration act.
Courville subsequently petitioned the court for attorney fees under the mechanic's lien statute, RCW 60.04.181. Cotton Club opposed the attorney fees motion. The court granted attorney fees to Courville in the amount of $15,182.26. Cotton Club appealed both the summary judgment and attorney fees rulings.
ANALYSIS
When reviewing an order for summary judgment, all facts and reasonable inferences are considered in a light most favorable to the nonmoving party, while all questions of law are reviewed de novo. Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001). Summary judgment is appropriate where there are no disputed issues of material fact and the prevailing party is entitled to judgment as a matter of law. Sperr v. City of Spokane, 123 Wn. App. 132, 136, 96 P.3d 1012 (2004).
A. Joint Venture
Cotton Club argues that the mechanic's lien filed by SD Construction was proper because the two had formed a joint venture. RCW 18.27.080 (Registration prerequisite to suit) states:
No person engaged in the business or acting in the capacity of a contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any work or for breach of any contract for which registration is required under this chapter without alleging and proving that he was a duly registered contractor and held a current and valid certificate of registration at the time he contracted for performance of such work or entered into such contract.
RCW 18.27.065 (Partnership or joint venture deemed registered, when) states:
A partnership or joint venture shall be deemed registered under this chapter if any one of the general partners or ventures whose names appear in the name under which the partnership or venture does business is registered.
Cotton Club admits that it was not registered when the lien was filed against Courville. However, it argues that SD Construction was registered, and since Cotton Club and SD Construction formed a joint venture to work on the car wash project, Cotton Club should be considered a registered contractor. Cotton Club claims that the joint venture elements are all present in this case insofar as there was: (1) a contract, (2) common purpose, (3) community of interest, and (4) equal right to a voice in decisions. Carboneau v. Peterson, 1 Wn.2d 347, 374, 95 P.2d 1043 (1939).
Carboneau is distinguishable. That case involved a tort claim controlled by common law principles, while here the relationship between Cotton Club and SD Construction insofar as the validity of the lien is concerned is controlled by statute. More applicable to the present case is Goeres v. Ortquist, 34 Wn. App. 19, 20-22, 658 P.2d 1277, review denied, 99 Wn.2d 1017 (1983). In Goeres, the plaintiffs Stewart and Goeres, along with Ortquist and Fullerton, owned land near a lake. Id. at 20. There was a dam and spillway at one end of the lake, which gave way and flooded the property. Id. Stewart and Goeres brought an action against Ortquist and Fullerton for contribution, alleging that the property was purchased as a joint venture. Id. The trial court held that there was no joint venture. Id. at 22. This court affirmed, holding that there was no joint venture between the parties because no money was put aside to meet a common purpose, no other joint financial arrangements were made and the parties did not all decide at the same time to purchase the property. Id.
Here, similarly, only Cotton Club's bank account was used for checks and deposits. There was no financial connection or account for the joint venture of Cotton Club and SD Construction. Cotton Club quixotically claims that it purchased SD Construction's assets, but that Ms. Fischer owned them. These assets were never described. All construction jobs of Cotton Club were accomplished through the use of subcontractors. There were no joint venture employees. These facts do not show a common purpose between Cotton Club and SD Construction.
Cotton Club also fails to demonstrate a joint venture under the community interest and equal right of control elements, discussed in Refrigeration Engineering Co. v. McKay, 4 Wn. App. 963, 965, 486 P.2d 304 (1971). Refrigeration Engineering involved a claim by wives of developers that they were promoters of a joint venture in the development of a shopping center created by their husbands. Division Two of this court held that the wives did not participate in the joint venture through their husbands, because there was no community interest to show that the wives would share in the profits and losses of the development. Id. at 974-76. And, the wives did not play an active role in the decision-making process in the development of the center. Id.
Here, the claim of lien was in Cotton Club's name only; SD Construction did not claim to be owed any money from Mr. Upchurch or Courville. SD Construction had nothing to do with the construction project, was never near the car wash jobsite, and had no demonstrated input into the decision-making process of the project. Because Cotton Club does not dispute any of these facts, it fails to demonstrate the common purpose, community interest, and equal right of control elements to qualify for joint venture status. Thus, Cotton Club was not a part of a joint venture for RCW 18.27.065 purposes and the trial court's summary judgment order in favor of Courville was proper.
B. Substantial Compliance
Cotton Club next argues that it substantially complied with the contractor's registration act, relying on Northwest Cascade Construction, Inc. v. Custom Component Structures, Inc., 83 Wn.2d 453, 463-64, 519 P.2d 1 (1974). However, Cotton Club cannot use the substantial compliance doctrine in light of the plain language of RCW 18.27.005. This provision reads:
This chapter shall be strictly enforced. Therefore, the doctrine of substantial compliance shall not be used by the department in the application and construction of this chapter. Anyone engaged in the activities of a contractor is presumed to know the requirements of this chapter.
RCW 18.27.005. Northwest Construction, a 1974 case, obviously did not contemplate this 1997 statute. We hold RCW 18.27.005 precludes Cotton Club's use of the substantial compliance doctrine, and affirm the order granting summary judgment in favor of Courville.
See Laws of 1997, ch. 314, § 1.
C. Attorney Fees
The reasonableness of an attorney fees award is reviewed under the abuse of discretion standard. Zink v. City of Mesa, 137 Wn. App. 271, 277, 152 P.3d 1044 (2007), review denied, 162 Wn.2d 1014 (2008). A trial court does not abuse its discretion unless its decision is manifestly unreasonable. Id. A decision is not unreasonable unless it is outside the range of acceptable choices. Id. RCW 60.04.181(3) (Attorney fees for mechanic's liens) states:
The court may allow the prevailing party in the action, whether plaintiff or defendant, as part of the costs of the action, the moneys paid for recording the claim of lien, costs of title report, bond costs, and attorneys' fees and necessary expenses incurred by the attorney in the superior court, court of appeals, supreme court, or arbitration, as the court or arbiter deems reasonable.
RAP 18.1 states:
(a) Generally. If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court.
(b) Argument in Brief. The party must devote a section of its opening brief to the request for the fees or expenses.
Cotton Club contends that Courville is not entitled to attorney fees because, as in Frank v. Fischer, summary judgment was granted on the basis of the contractor's registration act, which does not expressly allow for attorney fees, as opposed to the mechanic's lien foreclosure statute. Frank v. Fischer, 108 Wn.2d 468, 476-77, 739 P.2d 1145 (1987).
We disagree with Cotton Club. The original basis for suit by Cotton Club was the mechanic's lien foreclosure statute. The trial court correctly concluded that Courville was the prevailing party under the mechanic's lien statute, where Cotton Club's lien was rejected due to its failure to register under the contractor's registration act. RCW 60.04.181(3); Pilch v. Hendrix, 22 Wn. App. 531, 533-34, 591 P.2d 824 (1979). Courville is the substantially prevailing party on appeal based upon our opinion today. See RCW 60.04.181(3). Thus, we affirm the trial court's award of attorney fees and hold that Courville is entitled to attorney fees as the substantially prevailing party on appeal under the mechanic's lien statute. Id.
CONCLUSION
We affirm the trial court's order granting summary judgment in favor of Courville and awarding attorney fees to Courville. Cotton Club did not meet the elements of a joint venture for RCW 18.27.065 purposes, and RCW 18.27.005 precludes Cotton Club's use of the substantial compliance doctrine. Courville is entitled to attorney fees against Cotton Club as the substantially prevailing party, both below and on appeal under RCW 60.04.181(3).
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.
SWEENEY, J. and BROWN, J., concur.