                                                     This opinion was ·filed for record

                                                at    B:o~ ~ uJ17JJ n
                                                     ro~AN L. CARLSON
                                                      SUPREME .COURT CLERK



   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




BUSINESS SERVICES OF AMERICA II,
INC.,                                                          NO. 9 4 0 8 8 - 6

                    Petitioner,
                                                                   EN BANC
           V.

W AFERTECH, LLC,

                    Respondent.                        Filed: - -JUL 2 7 2817
                                                                  -------


           PER CURIAM-The 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
No. 94088-6                                                                        PAGE2




protest the misnomer by participating in years of litigation under the erroneous

caption, we grant review and reverse the Court of Appeals.

                                        FACTS

           This 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 N atkin/Scott for alleged safety violations. In response, N atkin/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 N atkin/Scott claims.

           BSA 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 evenhrnlly 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. IL 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)(l)

because the case had already been noted for trial. Bus. Servs. of Am. IL Inc. v.

WaferTech, LLC, 174 Wn.2d 304,313,274 P.3d 1025 (2012).
No. 94088-6                                                                     PAGE3




          Following 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 N atkin/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 appeal.
          Following 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.
          The 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
No. 94088-6                                                                      PAGE4




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,
2014)     (unpublished),        http://www.courts.wa.gov/opinions/pdf/D2%2045325-8-
II%20%20Unpublished%200pinion.pdf. 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.
          On remand, BSA moved for a niling that the improper heading was simply
a misnomer and that WaferTech had known since 2001 that "BSofA" 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 "BSofA" 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.

          BSA filed a petition for review in this court. We grant the petition and

reverse the Court of Appeals.

                                      ANALYSIS
          Generally, 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
No. 94088-6                                                                     PAGES




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.
          The 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 BSofA 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.
          Because 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
No. 94088-6                                                                     PAGE6




simply because of a misnomer in the caption is manifestly unjust and disserves the
economy of judicial resources. We will therefore not apply the law of the case so as to
preclude reconsideration of the propriety of denying BSA's motion to correct the
caption.
             The Court of Appeals is reversed, and the matter is remanded to the Court
of Appeals to reverse the trial court's denial of BSA's motion to correct the caption
and to address BSA's substantive challenges to the 2013 summary judgment and
attorney fees award. 1




      1
           Justice Wiggins did not participate in this case.
