Opinion
No. 56649-1-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for Whatcom County, No. 98-2-02488-3, Ira Uhrig, J., entered July 1, 2005.
Counsel for Appellant(s), John R. Guardi, Attorney at Law, PO Box 2570, Blaine, WA 98231-2570.
Steven Charles Hathaway, Attorney at Law, PO Box 2147, Bellingham, WA 98227-2147.
Counsel for Respondent(s), Craig Powell Hayes, Ludwigson, Thompson, Hayes Bell, PO Box 399, 119 N. Commercial St Ste 170, Bellingham, WA 98225-4437.
Reversed by unpublished per curiam opinion.
Pacific Surveying Engineering Services, Inc. sought to enforce its lien against an interim purchaser's interest in the property, based upon constructive notice. But the lien claim includes amounts charged for work performed after the purchase. There are thus questions of fact as to the validity of the lien as against Denbigh Development Inc., and as to the amount. We reverse summary judgment and remand.
FACTS
Voyager's Landing Motel, Inc. (Voyager's) desired to subdivide a large parcel of unimproved real estate in Whatcom County. In February 1996, Voyager's contracted with Pacific Survey Engineering, Inc. (Pacific) for surveying and engineering services on the property, which consisted of three lots. Pacific recorded a "Notice of Providing Professional Services" with the county auditor on March 27, 1996.
In June 1997, Denbigh Development, Inc. (Denbigh) purchased two of the three subdivided lots.
Pacific did not receive payment for its services, and on June 30, 1998, recorded a claim of lien against the entire parcel, naming Voyager's as owner of lot 1 and Denbigh as owner of lots 2 and 3, and stating that work had ceased on April 10, 1998. After another contractor initiated legal action for nonpayment and named Pacific among the defendants, Pacific filed a third-party complaint asserting the priority of its lien and seeking foreclosure.
The court ultimately ruled on summary judgment that Pacific's lien was valid and superior to all other claims, and ordered foreclosure of the entire parcel to satisfy the lien in the amount claimed. Denbigh appeals.
DISCUSSION
Our review of a summary judgment is de novo, and we engage in the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Simpson Tacoma Kraft Co. v. Dept. of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992); Bates v. City of Richland, 133 Wn. App. 919, 926-27, 51 P.3d 816 (2002).
As a threshold question we must address whether the arguments Denbigh makes are raised for the first time on appeal, and thus should not be considered. RAP 2.5(a). Denbigh challenges the lien on several grounds, including lack of verification of the claim, failure to allocate work among the three parcels, and failure to file the claim of lien within 90 days after cessation of work. We agree that Denbigh failed to raise the issue of verification, and so do not address it. We also do not address Denbigh's allegations of irregularities and inconsistencies in Pacific's pleadings, for the same reason. The other issues, however, were in fact discussed at summary judgment and/or addressed in the summary judgment briefing, and the fact that Denbigh casts the arguments somewhat differently here is no barrier to review.
Pacific characterizes Denbigh's arguments below as limited to the question of whether Denbigh and Pacific were in privity. The arguments were not so limited, but the privity issue arose because Pacific repeatedly and erroneously asserted that Denbigh had contracted with Pacific for the work. See Clerk's Papers at 125 (second amended third party complaint); Clerk's Papers at 132 (first amended third party complaint); Clerk's Papers at 207 and 221 (affidavits in support of default).
The principal issue at summary judgment was the propriety of the lien as an encumbrance on Denbigh's lots. Denbigh emphasized that it had no relationship whatsoever with Pacific, and indeed had never heard of Pacific until served with its claim of lien. Yet the lien was based in part on work performed after Denbigh purchased the land.
Pacific started work on February 20, 1996, and filed a notice of intent to claim a lien on March 27, 1996. Denbigh was created in June 1997, and bought the property on June 23, 1997. Denbigh's title policy from American Land Title Association does not list the notice of claim. (Nor, apparently, did another title policy issued by First American Title to Voyager's lender.) Denbigh therefore argued it was a bona fide purchaser without notice and not subject to the lien. The trial court ruled, however, that the notice was recorded, and that Denbigh thus had constructive notice of Pacific's intent to claim a lien.
The court expressly invited Denbigh to return to court for reconsideration, which would be granted in a `heartbeat' if Denbigh found evidence the notice had not in fact been recorded. Report of Proceedings (July 1, 2005) at 17. Nothing in the record suggests Denbigh sought reconsideration.
But Pacific's lien claim includes work through April 1998; Denbigh purchased the land by warranty deed in June 1997. Pacific does not explain how constructive notice of a claim for work ordered by the previous owner is notice that the claimant continues, without authorization by the current owner, to perform work that will encumber the property. Under the statute, property is subject to a lien only to the extent of the interest of the owner requesting the work. RCW 60.04.051.
`Property subject to lien. The 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.
This brings us to Denbigh's argument that the lien claim should have been allocated between the properties. Pacific does not (now) contend Denbigh ordered the work, or argue that Voyager was Denbigh's agent. It thus appears that assertion of the entire lien amount against Denbigh's property was either improper, or involved questions of fact for trial. We thus reverse and remand for further proceedings. Given our disposition, we do not address Denbigh's other challenges to the lien or the amount thereof. Reversed and remanded.