Brashear Electric, Inc. v. Norcal Properties, LLC

B
                                                             FILED
                                                          MARCH 11, 2021
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

BRASHEAR ELECTRIC, Inc., a                     )          No. 37379-7-III
Washington Corporation,                        )
                                               )
                     Appellant,                )
                                               )
              v.                               )
                                               )
NORCAL PROPERTIES, LLC, a                      )
Washington limited liability company;          )
COLUMBIA STATE BANK, a                         )
Washington chartered bank; BLUE                )          PUBLISHED OPINION
BRIDGE PROPERTIES, LLC, a                      )
Washington limited liability company,          )
                                               )
                     Respondents,              )
                                               )
WHEATLAND BANK, a Washington                   )
chartered bank; NELSON ROOFING                 )
ENTERPRISES, INC., an Oregon                   )
Corporation d/b/a PALMER ROOFING               )
COMPANY,                                       )
                                               )
                     Defendants.               )

       LAWRENCE-BERREY, J. — To secure payment for an “improvement” of real

property, RCW 60.04.091 requires a contractor to record a notice of a claim of lien not

later than 90 days after ceasing to furnish labor, professional services, materials, or

equipment, or the last date on which employee benefit contributions were due.

“Improvement” includes repairing real property.
No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


       The question we answer today is whether the 90 days to record a claim of lien is

extended by a contractor performing warranty work—that is, work performed after

substantial completion to correct nonconforming work. We strictly construe “repairing”

to exclude a contractor’s correction of its own work and conclude that performing

warranty work does not extend the 90 days to record a claim of lien.

                                           FACTS

       Norcal Properties, LLC and Blue Bridge Properties, LLC own adjacent properties.

Under separate contracts, the owners hired prime contractor Vandervert Construction,

Inc. to construct a commercial retail building on each property. The relevant provisions

of each contract are identical. Vandervert hired subcontractors, including Brashear

Electric, Inc. to work on both projects.

       Vandervert’s contracts with the owners required it, for a period of one year after

substantial completion, to promptly correct work not conforming to the contract

requirements. The contracts required Vandervert to bear the cost of correcting its work.

Vandervert’s contracts with Brashear required Brashear to assume all warranty

obligations applicable to its work under Vandervert’s contracts with the owners.

       Brashear completed work on the Norcal project on June 28, 2017, and sent a

final invoice to Vandervert on August 17, 2017. Brashear completed work on the Blue


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No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


Bridge project on September 29, 2017, and sent a final invoice to Vandervert on

October 26, 2017. The owners fully paid Vandervert.

       On January 8, 2018, a tenant of the Norcal building notified Vandervert that the

roof was leaking. An initial inspection indicated that the leak was due to Brashear’s

improper installation of the air conditioning unit. In accordance with the contractual

warranty provision, Vandervert directed Brashear to send an electrician to fix the leak.

       On January 17, Jerry Peal, a Brashear electrician, applied caulking to temporarily

fix the leak until a roofing contractor could make a permanent repair. Closer inspection

revealed that Brashear was not at fault for the leak.

       While Mr. Peal was on the Norcal property, Vandervert directed him to repair a

loose connection in a light fixture at the Blue Bridge building. Mr. Peal fixed the loose

connection.

       On January 30, Brashear recorded a claim of lien against the Norcal property for

$12,830.81, the amount Vandervert owed it on that project. The next day, Brashear

recorded a claim of lien against the Blue Bridge property for $36,278.50, the amount

Vandervert owed it on that project. On February 2, 2018, Vandervert filed for

receivership.




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No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


       In June 2018, Brashear commenced this action to foreclose its claims of liens

against the two properties. Eventually, the parties filed cross motions for summary

judgment. The trial court orally ruled in favor of the owners, determining that the

warranty work did not extend the 90 day period for recording Brashear’s claims of liens.

It later entered written orders. Brashear timely appealed.

                                        ANALYSIS

       PARTIES’ ARGUMENTS

       Brashear contends the trial court misinterpreted RCW 60.04.091 and the

surrounding statutory scheme. It argues the pertinent statutes are unambiguous and

require a conclusion that its warranty work was “labor” that extended the time to record

its claims of liens. Alternatively, if the pertinent statutes are ambiguous, it argues we

must give them a liberal construction and reach a similar conclusion.

       The owners argue the trial court properly strictly construed the pertinent statutes

when it ruled that the warranty work did not extend the time to record the claims of liens.

The owners cite Wells v. Scott, 

75 Wash. 2d 922

, 

454 P.2d 378

(1969), for the proposition

that warranty work, especially minor warranty work, does not extend the time to record a

claim of lien.




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No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


       Brashear responds that Wells was decided before enactment of chapter

60.04 RCW. See LAWS OF 1991, ch. 281. It argues Wells no longer is controlling

because RCW 60.04.900 requires provisions of the mechanics’ lien statutes “to be

liberally construed to provide security for all parties intended to be protected by their

provisions.”1

       We first discuss whether our analysis is governed by rules of strict or liberal

construction. We then construe the pertinent statutory scheme.

       A.       STRICT OR LIBERAL CONSTRUCTION

       Prior to 2011, the law was unclear as to what extent courts were required to strictly

construe the mechanics’ lien statutes. The confusion was aptly summarized in

Lumberman’s of Washington, Inc. v. Barnhardt, 

89 Wash. App. 283

, 286, 

949 P.2d 382

(1997):

       Although RCW 60.04.900 states that the lien statutes are to be liberally
       construed to provide security for all parties intended to be protected by their
       provisions, case law has established that mechanics’ and materialmen’s
       liens are creatures of statute, in derogation of common law, and therefore
       must be strictly construed to determine whether a lien attaches.



       1
          Brashear also relies on Kirk v. Rohan, 

29 Wash. 2d 432

, 

187 P.2d 607

(1947), to
support its argument that warranty work extends the time to record a claim of lien. Kirk
is easily distinguishable on the basis that the contractor returned to perform warranty
work and original contract work.

Id. at 433-34. 5

No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


       In Williams v. Athletic Field, Inc., 

172 Wash. 2d 683

, 

261 P.3d 109

(2011), the

Washington Supreme Court clarified when courts are to apply a strict or a liberal

construction to chapter 60.04 RCW. The court reviewed the history of strict construction

of the mechanics’ lien statutes. It noted that older cases applied the rule only when

determining what people or services came within the protections of the mechanics’ lien

statutes.

Id. at 695.

It then noted that a modern trend of cases applied strict construction

more broadly.

Id. at 696.

Rejecting this modern trend, the court held:

       [T]he appropriate way to view the competing canons of strict and liberal
       construction is found in our early cases. The strict construction rule, at its
       origin, was invoked to determine whether persons or services came within
       the statute’s protection. Expanding the rule of strict construction beyond
       this inquiry effectively nullifies RCW 60.04.900.

Id. Here, the question

is whether warranty work, a type of service, comes within the

protection of the mechanics’ lien statutes. We therefore strictly construe the pertinent

statutes to decide this question.

       B.     INTERPRETATION OF RCW 60.04.091

       When interpreting a statute, an appellate court first considers the statute’s plain

meaning. 

Williams, 172 Wash. 2d at 693

. “If the statute is ambiguous, we may consider




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No. 37379-7-III
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aids to interpretation. A statute is ambiguous if it is susceptible to two or more

reasonable interpretations.”

Id. (citation omitted). RCW

60.04.091 provides in relevant part:

       Every person claiming a lien under RCW 60.04.021 shall file for recording
       . . . a notice of claim of lien not later than ninety days after the person has
       ceased to furnish labor, professional services, materials, or equipment . . . .

       “Furnishing labor, professional services, materials, or equipment” is defined to

include “any labor . . . for the improvement of real property.” RCW 60.04.011(4)

(emphasis added). “Improvement” includes “[c]onstructing, altering, repairing,

remodeling, demolishing, clearing, grading, or filling in, of, to, or upon” real property.

RCW 60.04.011(5)(a) (emphasis added).

       Brashear’s warranty work certainly involved labor. The question is whether its

warranty work involved labor “repairing” real property. More directly, does “repairing”

extend to correcting one’s own nonconforming work?

       To discern the meaning of a word undefined by statute, we often turn to a

dictionary definition. State v. A.M.R., 

147 Wash. 2d 91

, 94, 

51 P.3d 790

(2002). “Repair”

means “to restore by replacing a part or putting together what is torn or broken.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1923 (1993). “Restore” strongly

suggests that the broken thing once worked properly. “Nonconforming work” suggests


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No. 37379-7-III
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the opposite. A strict construction of “repairing” supports a conclusion that it does not

encompass correcting one’s own nonconforming work.

       Another rule of construction leads us to the same conclusion. The principle of

noscitur a sociis provides:

       “[A] single word in a statute should not be read in isolation. Rather, the
       meaning of a word may be indicated or controlled by reference to associated
       words. In applying this principle to determine the meaning of a word in a
       series, a court should ‘take into consideration the meaning naturally
       attaching to them from the context, and . . . adopt the sense of the words
       which best harmonizes with the context.’”

State v. Barnes, 

189 Wash. 2d 492

, 503, 

403 P.3d 72

(2017) (second alteration in original)

(Wiggins, J., concurring) (quoting State v. Gonzales Flores, 

164 Wash. 2d 1

, 12, 

186 P.3d 1038

(2008)).

       The series of words—“[c]onstructing, altering, repairing, remodeling, demolishing,

clearing, grading, or filling in”—can be harmonized by recognizing that contractors are

hired and paid to do each of these things. With respect to repairing, contractors are hired

and paid to restore something that is broken. They are not hired and paid to correct their

own nonconforming work. Rather, their own work is warrantied, and they are

contractually obligated to correct it at no cost to the owner.




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No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


        An additional rule of construction leads us to the same result. A statute is

construed to effect its legislative purpose, while avoiding unlikely, absurd, or strained

consequences. Sanders v. State, 

166 Wash. 2d 164

, 172, 

207 P.3d 1245

(2009). A lien is

intended to secure payment for money owed. A contractor is not paid to correct its own

nonconforming work. Warranty work, therefore, is not lienable. It is unlikely that the

legislature intended for nonlienable warranty work to extend the time to record a claim of

lien.

        The result here is consistent with the 1969 case of Wells, 

75 Wash. 2d 922

. There,

Wells performed electrical work on two buildings owned by Scott.

Id. Wells completed work

on September 1, 1965.

Id. at 925.

Wells had guaranteed the work for one year after

completion.

Id. On May 6,

1966, Scott instructed Wells to correct two defective circuit

breakers in one building.

Id. I

n June, Scott 
then recorded a claim of lien.
 Id.




                                              9

No. 37379-7-III
Brashear Elec., Inc. v. Norcal Props., LLC


       The Wells court disposed of the electrician’s argument in a single paragraph,

without citation to any previous case or statute:2

               The trial court correctly held that a labor and materialman’s lien is a
       creature of statute in derogation of common law, and that its statutory terms
       must be strictly construed. It held that since construction of the buildings
       was completed on September 1, 1965, the 90-day filing period for a claim
       of lien commenced to run at that time; that since the claim was not filed
       until approximately 280 days thereafter, it was of no force and effect. We
       concur. The 1-year guarantee did not extend the statutory time within
       which the claim of lien could properly be recorded.




       2
        The pertinent statutes then in effect did not contain a definition of
“improvement,” but were otherwise substantially the same as those we construe today.
They provided:
              [RCW] 60.04.060 Claim—Contents—Form—Filing—Joinder.
      No lien created by this chapter shall exist, and no action to enforce the same
      shall be maintained, unless within ninety days from the date of the cessation
      of the performance of such labor, the furnishing of such materials, or the
      supplying of such equipment, a claim for such lien shall be [recorded] . . . .
See LAWS OF 1959, ch. 279, § 5.
              [RCW] 60.04.010 Lien authorized—Bond by railroad company.
      Every person performing labor upon, furnishing material, or renting, leasing
      or otherwise supplying equipment, to be used in the construction, alteration
      or repair of any . . . building . . . or any other structure . . . has a lien upon
      the same for the labor performed, material furnished, or equipment supplied
      ....
See LAWS OF 1959, ch. 279, § 1.
      In addition, the following note was contained below the text of RCW 60.04.010:
              Construction: “The provisions of law relating to liens created by
      this act, and all proceedings thereunder, shall be liberally construed with a
      view to effect their objects.” [1893 c 24 § 18.]

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                          j
                          i




No. 37379-7-III
Brashear Elec., Inc. v. M real Props., LLC



Id.
                          I

        Our analysis provires a statutory framework consistent with the conclusion in
                          i




Wells: Warranty work dob not extend the time to record a claim of lien.

        C.      ATTORNEYjFEES AND COSTS
                          I




        The owners reque~t an award of attorney fees and costs and cite
                          I




RCW 60.04.181(3) in su~port of their request. RCW 60.04.181(3) provides in relevant
                          I




part:
                          i




        The court may all~w the prevailing party in the [lien foreclosure] action,
        whether plaintiff o defendant, as part of the costs of the action, the moneys
        paid for recording he claim of lien, costs of title report, bond costs, and
        attorneys' fees an~ necessary expenses incurred by the attorney in the
        superior court, co rt of appeals, supreme court, or arbitration, as the court
        or arbitrator deem reasonable.

        Provided the own~rs comply with RAP 18.l(d), we grant them an award of
                          !




reasonable attorney fees ~d necessary expenses incurred on appeal. That award will be
                          I




determined by our comm·ssioner. RAP 18.l(f).

        Affirmed.




WE CONCUR:                                                                              j

 ~.
Pennell, C.J.
                      ~- .
                                                  Siddoway, J.

                                             11

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