Bort v. Parker
| Decision Date | 19 March 2002 |
| Docket Number | No. 20029-9-III.,20029-9-III. |
| Citation | 42 P.3d 980,110 Wash.App. 561 |
| Court | Washington Court of Appeals |
| Parties | Louie BORT and Barbara Bort, husband and wife, d/b/a LB Construction, Appellants, v. David G. PARKER and Valerie L. Parker, husband and wife, Respondents. |
David E. Sonn, David G. Estudillo, Jeffers, Danielson, Sonn & Aylward, Wenatchee, for Appellants.
Robert E. Lawrence-Berrey, Jr., Finney, Falk & Lawrence-Berrey, Yakima, Michael R. Tabler, Schultheis & Tabler, Ephrata, for Respondents.
David Parker, as "Owner," entered into a home construction contract with "Louie Bort d/b/a LB Construction," as "Contractor." Louie Bort Company (LBC) is a State of Washington licensed and bonded contractor. The "Parties" section of the contract specified LBC's state registration number as belonging to the Contractor. After concluding the Contractors Registration Act (CRA), RCW 18.27.080, precluded LBC's complaint against Mr. Parker for breach of the construction contract, and, without considering LBC's suggested equitable theories, the trial court dismissed LBC's complaint at summary judgment. We decide the record allows reasonable factual inferences that LBC was the intended Contractor precluding summary judgment. Further, the record permits consideration of certain equitable theories if the contract fails after fact-finding. Accordingly, we reverse and remand for trial.
Louie Bort is president and a majority shareholder of a corporation named Louie Bort Company (LBC). At the relevant times, LBC was a contractor duly registered with the State of Washington (LOUIEBCO88JH) and in compliance with the Contractor Registration Act, chapter 18.27 RCW.
In the past, Mr. Bort registered the business as LB Construction. Years before this lawsuit, he changed the registered business name to Louie Bort Company. LBC retained LB Construction as a trade name and generally conducted business as Louie Bort Company d/b/a LB Construction. A November 2000 certificate of insurance lists the entity as Louie Bort Company. But the 1998, 1997 and 1995 certificates described the insured entity as Louie Bort Company d/b/a LB Construction.
In January 2000, before the disputed construction contract was signed, a materials list signed by Mr. Bort was submitted with Mr. Parker's loan application; the contractor was identified as "Louie Bort Company." Clerk's Papers (CP) at 94. The loan agreement required the borrower and builder's written building contract be submitted and approved as a condition precedent to the loan.
On February 14, 2000, David Parker, as "Owner," entered a construction contract with a "Contractor" described as follows:
CP at 9. (Emphasis added).
The signature portion of the contract contained the following:
CP at 9. Further, Mr. Bort, as Contractor, signed a price/cost summary sheet attached to the contract without showing any representative capacity.
On February 17, 2000, the parties modified the contract on some minor points. This addendum listed the contractor as "Louie Bort, L.B. Construction." CP at 11. The signature line contained Mr. Bort's signature alone.
In March 2000, after the construction contract was signed, Mr. Parker received the contemplated loan and signed a construction loan agreement describing the "Builder" as "Louie Bort Company" in a manner consistent with the loan application. CP at 134. Mr. Bort signed in the "Contractor's Signature" block without showing representative capacity but gave in the "Contractor's License # "block below LBC's state contractor's registration number, the same as in the construction contract with Mr. Parker. CP at 138.
In October 2000, after a construction dispute, Mr. Bort filed a separate unsuccessful complaint to foreclose his construction lien, Cause No. 00-2-01123-3. In connection with the lien complaint, Mr. Parker filed a certified statement partly alleging: "I believe the value of the work performed by Louie Bort Company, including suppliers and subcontractors, is approximately $40,000." CP at 325.
In November 2000, Mr. Bort filed this breach of contract complaint, Cause No. 00-2-01197-7, initially describing the plaintiffs as "LOUIE BORT and BARBARA BORT, husband and wife, d/b/a LB CONSTRUCTION." CP at 3. Mr. Bort's former attorney, unaware of LBC, relied on the construction contract to draft the complaint.
In December 2000, Mr. Parker filed an answer seeking dismissal of Mr. Bort's complaint or, alternatively, "a determination of what is owed Mr. Bort" as well as attorney fees pursuant to the terms of the contract. CP at 14. In early January 2001, Mr. Parker filed for summary judgment dismissal under the CRA, RCW 18.27.080, arguing "Louie Bort, d/b/a LB Construction" was an unregistered contractor. Then, Mr. Bort's former attorney became aware of LBC for the first time and filed a motion to amend the complaint to add Louie Bort Company as a plaintiff and the construction lender, as another defendant.
In early February 2001, the trial court orally granted the motion to amend, but nevertheless granted Mr. Parker's requested summary judgment. Later in February, LBC filed an amended summons and complaint listing Louie Bort Company d/b/a LB Construction as the plaintiff and adding the lender as co-defendant. The written order dismissing the complaint with prejudice that was entered in early March 2001 included an award to Mr. Parker of costs and attorney fees. Immediately, LBC filed a notice of appeal regarding the summary judgment. On March 15, 2001, LBC filed an amended notice of appeal addressing the award of costs and attorney fees.
In May 2001 after voluntarily dismissing the lender to facilitate this appeal, LBC filed a second amended notice of appeal identical to the first amended notice of appeal. Later in May, LBC filed a CR 60 motion to vacate the summary judgment, which in support included a copy of Mr. Parker's October 2000 certified statement referring to work done by "Louie Bort Company," and copies of filed liens for "Louie Bort Company" from the dismissed lien case, Cause No. 00-2-01123-3. CP at 322-29.
Mr. Parker then filed a new certified statement indicating he made reference to the Louie Bort Company in his October statement simply because it was the way Mr. Bort's entity was listed in the lien claim. Mr. Parker went on to state: CP at 334. Mr. Parker further asserted he contracted with Mr. Bort personally and was unaware Mr. Bort "had a corporation." CP at 334.
Another judge denied the motion to vacate in June 2001. The Judge indicated he would not have dismissed the amended complaint but reasoned grounds did not exist to vacate under CR 60. Before the June 29 written order, LBC moved for reconsideration. On July 3, 2001, LBC filed its third amended notice of appeal adding the trial court's denial of his motion to vacate. On July 9, the trial court denied LBC's motion to reconsider the order denying the motion to vacate. On July 20, the trial court granted judgment to Mr. Parker for additional attorney fees without reference to the earlier orders. Finally, in September 2001, LBC filed its fourth amended notice of appeal, which incorporated its earlier appeals and added the July 20 judgment.
The issue is whether the trial court erred in dismissing LBC's breach of contract complaint by concluding no material facts remained regarding LBC as not the party identified as Contractor and deciding summary judgment was merited for Mr. Parker under the Contractor's Registration Act as a matter of law.
In reviewing a summary judgment, the appellate court engages in the same inquiry as the trial court. Huff v. Budbill, 141 Wash.2d 1, 7, 1 P.3d 1138 (2000). Summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Huff, 141 Wash.2d at 7, 1 P.3d 1138. "A material fact is one upon which the outcome of the litigation depends." Tran v. State Farm Fire & Cas. Co., 136 Wash.2d 214, 223, 961 P.2d 358 (1998) (citing Ruff v. King County, 125 Wash.2d 697, 703, 887 P.2d 886 (1995)). The appellate court reviews all facts and reasonable inferences in the light most favorable to the nonmoving party. Huff, 141 Wash.2d at 7, 1 P.3d 1138. Issues of law are reviewed de novo. Id. "If reasonable minds can reach different conclusions, summary judgment is improper." DePhillips v. Zolt Constr. Co., Inc., 136 Wash.2d 26, 30, 959 P.2d 1104 (1998) (citing Kalmas v. Wagner, 133 Wash.2d 210, 215, 943 P.2d 1369 (1997)).
Here, the trial court interpreted and applied the Contractor Registration Act (CRA) standing provision:
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...
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