                                                                     lLEO
                                                          COURr of APPEALS

                                                         2815 MAY 27 AM 9: 30

   IN THE COURT OF APPEALS OF THE STATE ORaglIVINWMAN
                                                         BY
                                     DIVISION II                  DE UTY

SHELCON CONSTRUCTION GROUP, LLC,                      No. 42845 -8 -II
a Washington limited liability company,
                                                     Consolidated with
                             Respondent.              No. 44995 -1 - II


       v.




SCOTT M. HAYMOND and JANE DOE
HAYMOND, husband and wife; A -3
VENTURE LLC, a Washington limited liability
company; A -4 VENTURE, an unknown                  PUBLISHED OPINION

entity type; A -1111 VENTURE LLC, a
Washington limited liability company; 14224
PIONEER LIVING TRUST; and ANCHOR
MUTUAL SAVINGS BANK,


                             Appellants.
SHELCON CONSTRUCTION GROUP, LLC,                      No. 44995 -1 - II

a Washington limited liability company,

                             Respondent,


       v.




SCOTT M. HAYMOND and JANE DOE
HAYMOND, husband and wife; A -3
VENTURE LLC, a Washington limited liability
company; A -4 VENTURE, an unknown
entity type; A -1111 VENTURE LLC, a
Washington limited liability company; 14224
PIONEER LIVING TRUST,


                             Defendants,


ANCHOR MUTUAL SAVINGS BANK,


                             Appellant.
No. 42845 -8 -II
Consolidated wi No. 44995 -1 - II



         WORSWICK, P. J. —        In this consolidated appeal, Scott Haymond and Anchor Mutual

Savings Bank (Anchor Bank) appeal judgments and decrees of foreclosure finding Haymond

liable for $245, 151. 42 plus 18 percent interest, and prioritizing Shelcon Construction Group,

LLC' s ( Shelcon) mechanic' s lien above Anchor Bank' s deed of trust. Haymond argues that the


trial court erred by ( 1) awarding Shelcon 18 percent interest in the absence of a signed agreement

to that amount, and by (2) miscalculating the amount of interest owed. Anchor Bank argues that

the trial court erred by ruling that Shelcon' s mechanic' s lien on Haymond' s property took

priority over Anchor Bank' s deed of trust on the same property despite the fact that Shelcon

released its lien before Anchor Bank recorded its deed of trust. We find no error and affirm.

                                                      FACTS


A.       Procedural Summary

          This consolidated case has a long and complicated history. In summary, Shelcon sued

Haymond and Anchor Bank to foreclose its mechanic' s lien on real property and to obtain

payment on construction contracts. It also sought a declaration that its lien was superior in

priority to Anchor Bank' s deed of trust on the property.

          Anchor Bank obtained summary judgment based exclusively on Williams v. Athletic

Field, Inc., 1 this court' s case concerning lien notice. Following a bench trial between, the trial

court granted lien foreclosure and contract damages to Shelcon. Our Supreme Court



 1
     Williams   v.   Athletic Field, Inc., 155 Wn.   App.   434, 444,   228 P. 3d 1297 ( 2010) ( holding that an
attestation clause signed by an employee of the lien filing service company did not satisfy the
lien statute' s requirement of corporate acknowledgement).




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subsequently overturned the case upon which the trial court had relied in granting summary

judgment to Anchor Bank.2 The parties stipulated to an order vacating the summary judgment in

Anchor Bank' s favor, and a bench trial followed between Shelcon and Anchor Bank. The trial


court ruled that Shelcon' s mechanic' s lien took priority over Anchor Bank' s deed of trust.

B.       Mechanic' s Lien


          Scott Haymond, a real estate developer, owned several legal entities. 3 He initiated a

development          project,   commonly known     as "   the   Farm," at which he planned to build a


commercial building.

          Haymond contracted with Shelcon, a general contractor, to perform construction work at


the Farm, including earthwork, excavation, demolition, clearing, and grading. Around January

17, 2006, Shelcon and Haymond first agreed to a scope of work for a contract price of

    732, 941. 92. Haymond and Shelcon subsequently amended the scope of work and contract price

several times.




2
     Williams   v.   Athletic Field, Inc., 172 Wn.2d 683, 698, 261 P. 3d 109 ( 2011) (      holding that a claim
of lien following the lien statute' s sample form is valid even in the absence of a proper corporate
acknowledgement).




3 Haymond was the registered agent and sole governing person of A -111 Venture, LLC and A-
1111 Venture, LLC ( known unofficially as " A -4 "). He also appeared to control and be the sole .

beneficiary of an entity called 14224 Pioneer Living Trust. 14224 Pioneer Living Trust owned
the Farm at the time of this         suit.   Shelcon named these entities as defendants. For clarity, we
refer to any or all of these entities as " Haymond."




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         On July 5 at 8: 35 a.m., Shelcon' s owner Shane Martin went to the Farm to prepare for

                              by measuring the Farm' s boundaries. Martin marked the boundaries with
                  grubbing4




clearing   and




fluorescent ribbon to assist Shelcon' s employees in visually determining the boundary lines.

Martin later testified that he never cleared and grubbed without first marking boundary lines. A

few days later on July 10th and 1 lth, Shelcon employees cleared and grubbed the Farm.

         On June 20, 2008, Shelcon recorded a $ 303, 291. 29 mechanic' s lien at the Pierce County

Auditor' s Office for its work on the Farm. The lien reflected work beginning July 5, 2006.

C.       Lien Release and Deed of Trust

         Meanwhile, at 2: 14 p.m. on July 5, 2006, several hours after Martin began measuring

boundaries at the Farm, Haymond granted a deed of trust to Washington First International Bank

 Washington First)       on   the Farm, to    secure a $   1, 540, 000 loan. The parties recorded this deed of


trust on July 5, 2006.

         Around April 2008, Haymond sought a loan from Anchor Bank. Haymond sought


financing to pay off the loan to Washington First and to provide extra funding to himself. When
Anchor Bank learned of Shelcon' s lien on the Farm, it told Haymond that it would not lend to

him unless the Shelcon lien was released. Haymond asked Shelcon to release the lien, promising

to pay Shelcon       with   loan   proceeds   from Anchor Bank. Shelcon released its lien with the purpose


of enabling Haymond to obtain funding from Anchor Bank. Shelcon did not believe its release




4"                                                                                                         1 Verbatim
     Clearing    and grubbing" refers to removing trees          and   removing   roots,   respectively.
Report     of   Proceedings ( VRP) ( Feb. 4, 2013) at 96.




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precluded it from claiming the unpaid work later. At the time of the lien release, Haymond owed

Shelcon $ 303, 291. 29          and   had   paid   only $ 17, 000.


         The lien   release, recorded           July    16, 2008,    provided       in   part: "   THE UNDERSIGNED LIEN


CLAIMANT          hereby        releases    the lien   on   the property    owned or        reputedly     owned   by...."   CP


 Sept. 11, 2013) at 647. The release contained no language addressing whether Haymond had

paid Shelcon or whether the lien release was limited or conditional in any way.

         Prior to the lien release, Haymond requested an additional $ 300, 000 in the loan amount

from Anchor Bank, saying that his budget                     was "   really   close and      tight."    CP ( Sept. 11, 2013) at


648. After the lien release, Haymond contacted Anchor Bank and claimed that the lien had been


a misunderstanding. He falsely claimed that he owed Shelcon $303, 291. 29 for a project

unrelated to the Farm, and that he had fully paid that amount. Anchor Bank accepted this

explanation. Shelcon was unaware of this misrepresentation.


          Also after the lien release, Haymond submitted several Shelcon invoices to Anchor Bank.

The three invoices      were       dated July 21, 2008,           and all   three   showed work         being " 100%    complete"



                            5
on   discrete   projects.        CP ( Sept. 11, 2013)        at   648. Shelcon had prepared these invoices and


Haymond      provided       them to Anchor to            obtain   loan disbursements. Shelcon and Haymond


understood      that these three invoices,             totaling $ 79, 200, " represented part, but not all, of what

Shelcon was owed at the time that the invoices were submitted. "6 CP ( Sept. 11, 2013) at 648.



5
    One invoice, for $ 61, 000,         stated: "   Water Line 100%           complete."           Another, for $8, 200, stated:
    Retention Pond 100% Complete."                  The third, for $ 10, 000,            stated: "   Utility Trenching 100%
Complete." CP ( Sept. 11, 2013) at 648.


6 Haymond owed Shelcon for invoices dating back to 2006.


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Haymond did not disclose to Anchor Bank that he owed additional money to Shelcon. These

were the only invoices that Haymond provided to Anchor Bank. Anchor Bank approved

payment of these invoices, and inspected the Farm to verify that work described in the invoices

was complete.




        Anchor Bank never communicated with Shelcon or any of its employees, although it had

Shelcon' s contact information. Anchor Bank did not attempt to verify with Shelcon whether

Haymond had paid the $ 303, 291. 29 lien amount. Instead, Anchor Bank relied upon the lien

release and proceeded with the loan to Haymond. On August 22, 2008, Raymond recorded a


deed of trust on the Farm to Anchor Bank as security for a $ 3, 900, 000 loan and release of

Washington First' s deed of trust.


D.      Second Lien and 18 Percent Interest


         Shelcon and Haymond amended their scope of work and contract price on September 8,

2008,   when   Shelcon   sent a   letter   and a contract   to Haymond.   This contract summarized all of


Shelcon' s work to date and all of Haymond' s payments to date. It set out changes in the future

scope of work and included new payment terms. These payment terms provided that Haymond

pay Shelcon for any future extra work at cost plus 15 percent, that any overdue payments would

accrue interest at 18 percent, and that Shelcon would be entitled to attorney fees and costs for

any future enforcement actions. The contract called for immediate payment. The contract also
included a merger clause:


         This Contract including Job Proposal and Scope of Work and the General
         Conditions attached hereto represent the entire agreement between the OWNER
         and CONTRACTOR and supersedes all prior negotiations, representations,
         correspondence, proposals or agreements. This Contract may be amended only
         by written instrument signed by both the OWNER and CONTRACTOR.
No. 42845 -8 -II
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CP ( Aug. 28, 2013) at 11.

         Neither party signed this contract. Martin personally presented the contract to Haymond

and the two discussed it, and Raymond never objected to its terms. Haymond accepted the

revisions and accepted its terms and conditions. After the date of the contract, Shelcon began to

charge Haymond cost plus 15 percent for all extra work, and Haymond began paying this

amount.




         After the initial lien release on July 16, 2008, Shelcon continued to work at the Farm until

February 12, 2009. On May 1, 2009, Shelcon recorded a second lien on the Farm for

 309, 369. 58.    This amount included work Shelcon had initially included in the first lien. The

lien requested interest, but it did not specify in what amount.

E.       Lawsuits


          On December 31, 2009, Shelcon filed suit against Haymond and Anchor Bank. Shelcon

sought contract      damages in the         amount of "no        less than $ 300, 000. 00," with the interest rate as


provided in the contract. CP ( Aug. 28, 2013) at 7. It also sought foreclosure of its lien against

the defendants' interests in the Farm, and an order declaring its lien interest superior to all others.

          After Anchor Bank was dismissed on summary judgment, Shelcon' s claims against

Haymond proceeded to a bench trial. At trial, Haymond asked Martin whether he knew that 18

percent   interest    was "   illegal   and protested    by   Mr. Haymond." VRP ( Sept. 19, 2011) at 173.


Martin    replied    that he did     not   know 18    percent was     illegal. Haymond then          asked: "     Is it correct


that   you' re not   asking for [ 18       percent   interest]   anymore ?"    VRP ( Sept. 19, 2011)         at   173. Martin


responded, "     From   what     I   understand now,      legally,   you can   only   get   12   percent."   VRP ( Sept. 19,
No. 42845 -8 -II
Consolidated wi No. 44995 -1 - II


2011)   at   173. Haymond then             asked, "   But you sued for 18 percent. All I' m trying to find out is if

you abandoned      that      part of your    lawsuit ?" to   which   Martin   replied, "   Correct, the difference


between the 12     and       18,   yes."   VRP ( Sept. 19, 2011) at 174. On further redirect examination,

Martin acknowledged that the contract provided for 18 percent interest on unpaid amounts, that

Haymond received the contract, and that Haymond authorized Shelcon to perform work after


having   the   document " in hand." VRP ( Sept. 19, 2011) at 186.


         Shelcon prevailed in the bench trial against Haymond: the trial court found Haymond


liable for an outstanding principal amount of $245, 151. 42. The trial court found that the

September 8, 2008 letter and contract were a written memorialization, executed by the conduct

of the parties. It concluded that Haymond owed 18 percent interest on the principal amount


owing to Shelcon. The trial court entered a judgment and decree of foreclosure against

Haymond. These findings of fact and conclusions of law were not binding on Anchor Bank,

because Anchor Bank was not a participant in this trial.


         After the parties stipulated to an order vacating the summary judgment in Anchor' s favor,

the lien priority case proceeded to a separate bench trial. The trial court entered a judgment and

decree of foreclosure against Anchor Bank.


         The trial court made the following conclusions of law:

                2. Shelcon' s work at the Subject Property during the morning hours of July
         5, 2006 constituted an improvement to the Subject Property, such that, for priority
         purposes, Shelcon' s lien relates back in time to 8: 35 a.m. on July 5, 2006, which
         precedes the time that Washington First International Bank' s deed of trust was
         recorded at 2: 14 p.m. on the same day."

                   3.   The doctrine of equitable subrogation permits Anchor Bank to step into
         the shoes      of   Washington First International Bank for lien priority              purposes.
No. 42845 -8 -II
Consolidated wi No. 44995 -1 - II

                  4. The application of equitable subrogation in this case does not affect the
       result, because Shelcon' s lien had priority over Washington First International
       Bank' s deed of trust.




                 Shelcon' s lien release on July 16, 2008 did not affect the amount for
                  6.
       which Shelcon could subsequently lien after it had finished its work at the Subject
       Property.


               13. Anchor Bank did not meet its burden of proof concerning its affirmative
        defense that Shelcon' s lien is barred by the doctrine of equitable estoppel.




                   16.   Shelcon'     s    lien, which is       comprised          of the    principal    amount    of
           262, 828. 26, prejudgment interest on the principal amount accruing at an annual
        rate of twelve percent from May 1, 2009, and the attorneys' fees and costs awarded
        to Shelcon       by   Judge       Fleming in   the   prior   trial in the amount          of $ 141, 181. 75, is
        superior in priority to Anchor Bank' s deed of trust concerning the Subject Property.

CP ( Sept. 11, 2013) at 631 -33.


        Haymond and Anchor Bank both appeal.

                                                        ANALYSIS


                   I. ANCHOR BANK' S ASSIGNMENTS OF ERROR TO FINDINGS OF FACT

        As an initial matter, we address Anchor Bank' s assignments of error to the trial court' s


findings   of   fact. Anchor Bank          assigns error     to 18   of   these   findings   of   fact —some in their


entirety, and some only to the extent that we might draw certain conclusions from them. Thus,

before addressing the merits of the appellants' claims, we evaluate whether Anchor Bank has

properly assigned error to the findings of fact and, where it has done so, whether the challenged

findings are supported by substantial evidence.




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A.           Standard ofReview

             We review a trial court' s findings of fact to determine if substantial evidence supports


them    and,    if   so, " whether   the findings    support    the trial   court' s conclusions of   law." Hegwine v.


Longview Fibre Co., 132 Wn.              App.      546, 555, 132 P. 3d 789 ( 2006). Unchallenged findings of


fact   are verities on appeal.         132 Wn.     App.   at   556. We      review conclusions of     law de   novo.   132


Wn. App. at 556. We generally do not consider assignments of error unsupported by argument

and citations to the record. Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 496, 585 P. 2d 71

    1978).


B.           Assignments of Error without Argument

             Several of Anchor Bank' s assignments of error do not assign error to the finding of fact

as written, but instead attempt to assign error to a finding of fact to the extent we may construe it

in a particular way. Because Anchor Bank does not argue that the findings themselves lack

sufficient evidence, we         do    not address    this type of      assignment of error.      Several other




7
    Anchor Bank does         not assign error      to the    following findings     of   fact ( FOF), but instead assigns
error to potential legal conclusions we might draw from them. RAP 10. 3( a)( 4) provides that an
appellant must assign error            to " each   error a   party by the trial court." We
                                                                     contends was made

then review those findings for substantial evidence. Hegwine, 132 Wn. App. at 555. RAP
10. 3( a)( 4) does not address how such findings may be construed by a reviewing court. Thus, we
decline to address the following assignments of error:
          2. " FOF 9 to the extent that it may be construed as a finding that Shelcon conducted a
          survey and definitively determined the legal boundary lines of the Subject Property."
          3. " FOF 10 to the extent that it may be construed as a finding that Shelcon conducted a
          survey and definitively determined the legal boundary lines of the Subject Property."
          4. " FOF 13 to the extent that it may be construed as a finding that Shelcon conducted a
          survey and definitively determined the legal boundary lines of the Subject Property."
          7. " FOF 18 to the extent it may be construed as a finding that Haymond and Shelcon
             entered any change order agreements."




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assignments of error purport to assign error to a finding of fact as written but fail to argue why

substantial evidence does not support them. Because Anchor Bank fails to argue why these

findings of fact are erroneous, we do not consider them.8



       8. "    FOF 28 to the extent it may be construed as a finding that Shelcon reasonably believed,
       in light of its prior history with Haymond, that it would receive full payment from
       Haymond for its unpaid work or that Shelcon' s reliance on promises by Haymond was
       reasonable."

       9. " FOF 33 to the extent it may be construed that Haymond made the additional funding
       request to pay Shelcon' s lien or that Haymond communicated to Anchor Bank that it was
       requesting additional funds to satisfy Shelcon' s lien.
       11. FOF 45 " to the extent it may be construed as a finding that Anchor Bank did not verify
       that the work described in submitted invoices was sufficiently complete before disbursing
        loan    proceeds   for   payment."    FOF 45   says: "   Anchor Bank did not contact Shelcon to verify
       whether Shelcon' s work was complete after Shelcon completed the work stated on the three
        invoices totaling $ 79, 200. 00."       CP Anchor at 626.
        18. "   FOF 70 to the extent it may be construed as an obligation secured by a lien superior
        to Anchor Bank'    s lien." FOF 70 is a table concluding how much money Shelcon was

        owed.     CP Anchor       at   630 -31. Anchor Bank does not challenge this amount in its
        argument. Br. of Appellant (Anchor Bank) at 4 -7.


        Furthermore, Anchor Bank does not argue that these potential constructions of the
findings of fact lack substantial evidence.


8 Anchor Bank does not support the following assignments of error with argument explaining
why they are not supported by substantial evidence:
        1. "    FOF 6 only regarding the          finding    that "   Scott Haymond accepted Shelcon' s bid
        sometime after receiving it, but before Shelcon commenced work on the Subject Property."
        5. " FOF 14 in its entirety."            Visual establishment of the boundary lines of
                                             FOF 14    reads: "

        the Subject Property was necessary before commencing clearing and grubbing of the
        Subject Property in order to minimize the risk of Shelcon trespassing onto neighboring
        properties."    CP ( Sept. 11, 2013) at 622. Anchor Bank argues that visual establishment of
        the boundary lines was not legally an improvement, but it does not argue that the trial court
        lacked substantial evidence to find that such visual establishment was necessary.
        6. " FOF 17 in its entirety." FOF 17 reads: " On or around August 15, 2006, Scott Haymond
        and Shelcon verbally agreed upon certain changes in the scope of work and the appropriate
        credits and debits to the contract price and the contract amount was reduced from $
        732, 941. 92 to $ 717, 193 [.] l2 based     upon a second written     bid dated August 15, 2006." CP
          Sept. 11, 2013) at 622.




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C.       Substantial Evidence Supports Contested Findings ofFact

         Anchor Bank assigns error to three findings and supports these assignments with


argument. We address these assignments of error to determine whether substantial evidence


supports them. Hegwine, 132 Wn. App. at 555.

         First, Anchor Bank assigns error to finding of fact 39 " with regard to representations

made    to Anchor Bank through the             submitted   invoices."      Br. of Appellant (Anchor Bank) at 5.


Finding   of   fact 39   reads: "   Shelcon never represented to Scott Haymond, Anchor Bank, or any

other person or      company that Shelcon         was owed a       total   of   only $79, 200. 00 in 2008."     CP ( Sept.


11, 2013) at 626. Anchor Bank argues that the three invoices totaling $79, 200 and marked

 100% complete" were such a representation, but it is clear from the language of these invoices


that   they   were marked "    100%    complete" only for the work listed on the face of the invoice.

Unchallenged finding of fact 34 describes that the invoices were labeled " Water Line 100%



          13. " FOF 56 in its entirety." FOF 56            reads: "   Prior to September 8, 2008, the practice and
          course of conduct between Shelcon and Scott Haymond was to apply all payments received
          from Scott Haymond to the             oldest amounts     due to Shelcon."        CP ( Sept. 11, 2013) at 628.
          14. " FOF 60 in its entirety."          FOF 60     reads: "      Scott Haymond accepted the revisions to
          scope and price stated in the September 2, 2008 written memorialization and Scott
          Haymond accepted the additional terms and conditions stated therein, one of which stated
          that henceforth Scott Haymond would pay Shelcon for all extra work on the basis of cost
          plus fifteen    percent (   15 %),    which Shelcon did in fact charge Scott Haymond, and Scott
          Haymond did in fact pay to Shelcon thereafter." CP ( Sept. 11, 2013) at 629.
          16. " FOF 61 in its entirety."    FOF 61 reads: " The September 2, 2008                                   written

          memorialization was executed by the conduct of Scott Haymond and Shelcon and called
          for substituted performance with regard to payment of interest and attorneys' fees, but did
          not callfor any      revisions   to    scope or cost of     Shelcon'      s work or contract."      CP ( Sept. 11,
          2013) at 629.
          17. " FOF 67 in its entirety." FOF 67            reads: "   During the course of Shelcon' s work, Scott
          Haymond authorized and directed Shelcon to perform extra work in the amount of
           229, 029. 74." CP ( Sept. 11, 2013) at 630. Br. of Appellant (Anchor Bank) at 4 -7.




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complete;" "     Retention Pond 100% Complete;"              and "   Utility Trenching   100% Complete."       CP


 Sept. 11, 2013)       at   625. Thus, substantial evidence established that Shelcon never represented


that $ 79, 200 was the total amount owed.


        Second, Anchor Bank assigns error to finding of fact 46. Finding of fact 46 states,

 Neither Scott Haymond nor Anchor Bank ever requested Shelcon to sign a subordination


agreement, a waiver of Shelcon' s lien rights, or any other document purporting to compromise

Shelcon' s right to subsequently record a lien for work performed either before or after the date of

Shelcon'   s   July   16, 2008 lien   release."   CP ( Sept. 11, 2013) at 626. Anchor Bank' s briefing

related to its assignment of error to finding of fact 46 does not address substantial evidence, but

rather attacks the legal argument at issue in this appeal, that Shelcon' s lien release constituted a

 document purporting to           compromise      Shelcon'   s right   to subsequently   record a   lien." CP ( Sept.


11, 2013) at 626. We examine this legal argument below. But to the extent that Anchor Bank


challenges the factualfinding that Shelcon never executed a subordination agreement, a waiver,

or a document (other than the lien release) purporting to limit Shelcon' s rights, substantial

evidence supports this finding of fact. Anchor Bank points to no such document in the record,

except for the lien release, which it argues is legally a limitation of Shelcon' s rights. Thus, this

finding of fact is supported by substantial evidence.

        Third, Anchor Bank assigns error to finding of fact 57. Finding of fact 57 reads:

        Shelcon' s letter to Scott Haymond dated September 8, 2008 informed Scott
        Haymond that Shelcon was agreeable to accepting Scott Haymond' s offer to pay
           79, 200. 00 to Shelcon in exchange for a partial lien release in this amount, but
        provided that Shelcon " reserved all lien rights, including the right to re -file a
        claim of lien for these and any other amounts that may become due.




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CP ( Sept. 11, 2013) at 629. As above, Anchor Bank appears to assign error to the legal

conclusion supported by this finding of fact: that Shelcon' s lien release was partial, not total and

unequivocal. We address this legal argument below in our analysis of the effect of the lien


release. But substantial evidence supports the trial court' s factual finding that the September 8,

2008 letter purported to reserve Shelcon' s lien rights: This letter was before the trial court as


plaintiff s exhibit 64, and it included the following language: that Shelcon released the lien " to

assist [   Haymond] ,   and reserved all rights, including the right to re -file a claim of lien for [the

existing    amounts   due]   and   any   other amounts which   may become due."   Thus, the trial court had


substantial evidence to find as a matter of fact that Shelcon reserved its lien rights in the

September 8, 2008 letter.


                                             II. 18 PERCENT INTEREST


           Haymond appeals the judgment, claiming that the trial court erred in its interest award.

He argues that an 18 percent interest rate cannot apply because Shelcon abandoned its claim for

18 percent interest and because Haymond never agreed to this term. Haymond further argues

that the trial court miscalculated the amount of interest due. We disagree.

A.         Argument Not Abandoned


           Haymond argues that Shelcon abandoned its claim for 18 percent interest through


Martin' s testimony during trial. Haymond fails to cite any authority that a party may abandon a

claim via witness testimony.

           Martin, a non -lawyer, testified on cross -examination that he no longer believed he was


legally entitled to 18 percent interest. Martin appears to have conditioned this statement on

Haymond' s counsel' s insistence during cross- examination that the 18 percent interest term was



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illegal. But as we discuss below, 18 percent interest is legal; in other words, the condition upon


which Martin based his statement does not apply. Haymond provides no authority or reason for

us to hold that Martin' s confusion about the law during cross -examination should deprive

Shelcon of the right to receive the 18 percent interest to which it is otherwise entitled.

Haymond' s argument that Shelcon abandoned its 18 percent interest claim fails.

B.       Parties Agreed to 18 Percent Interest


         Haymond next argues that, because he never signed the contract including the 18 percent

interest term, the trial court erred by finding that it applied to him. As a matter of first

impression, we affirm the trial court' s ruling that Haymond owes 18 percent interest, because the

parties agreed to the 18 percent interest term in writing.

         RCW 19. 52. 010( 1)       provides: "   Every loan or forbearance of money, goods, or thing in

action shall bear interest at the rate of twelve percent per annum where no different rate is agreed

to   in writing between the    parties. ".   The statute does not expressly state whether a signature is

required. Haymond argues that the trial court' s finding that the contract providing for 18 percent

interest was " executed by the conduct of the parties" is error under RCW 19. 52. 010. Br. of

Appellant Haymond at 5 - 6.


           Although there is no case law directly on point, we are guided by Washington cases

construing RCW 19. 52. 010 and contract law generally. In Topline Equip., Inc. v. Stan Witty

Land, Inc., we examined the writing requirement of RCW 19. 52. 010, and held that the writing

must specify the interest rate sought, or at least provide information sufficient to calculate the

interest   rate.   31 Wn.   App.   86, 91, 639 P. 2d 825 ( 1982). In other contexts, a valid written


agreement can exist without one party' s signature; acceptance of a written contract " may be


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Consolidated wi No. 44995 -1 - II


implied from     conduct as well as         from   words."   Sanwick v. Puget Sound Title Ins. Co., 70 Wn.2d


438, 443, 423 P. 2d 624 ( 1967) ( holding            that the lack of a signature did not render a contract not

  written '    for statute of limitations purposes where the party challenging the lack of signature

 acted and    has   continued     to   act" under   the   unsigned   instructions);   Hertzke v. State Dep' t ofRet.

Sys., 104 Wn.       App.   920, 933, 18 P. 3d 588 ( 2001) (        holding that substantial evidence of a written

agreement existed where there was a written offer followed by conduct as described in the

written offer).



           In the analogous context of the statute of frauds, some contracts must bear the signature

of the person against whom enforcement is sought. RCW 19. 36. 010. In certain circumstances,

the doctrine of part performance saves a contract that does not otherwise satisfy the statute of

frauds. Losh     Family,     LLC    v.   Kertsman, 155 Wn.      App.   458, 465, 228 P. 3d 793 ( 2010). This


exception exists because the statute of frauds seeks to reduce uncertainty in oral contractual

relations, and when        the   parties   have partly    performed,   that uncertainty is   reduced.   155 Wn. App.

at 465. Unwritten or unsigned agreements are saved under the doctrine of part performance


when ( 1) the contract is proven by clear, cogent, and convincing evidence; and ( 2) the acts

constituting part performance " unmistakably point to the existence of the claimed agreement."

In   re   Marriage ofDewBerry, 115 Wn.              App. 351,   361 - 62, 62 P. 3d 525 ( 2003) (   citing Granquist v.

McKean, 29 Wn.2d 440, 445, 187 P. 2d 623 ( 1947)).                    These cases discussing the doctrine of part

performance demonstrate that our law allows the enforcement of unsigned contracts, even where


a signature is required, when it is clear from the parties' actions that such a contract existed.


           Here, the trial court' s finding of fact 30 states that the September 8, 2008 letter was a

written memorialization executed by the conduct of the parties. The trial court therefore



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concluded that Haymond owed 18 percent interest. Haymond challenges only finding of fact 30,

so all other findings of fact are verities on appeal. Hegwine, 132 Wn. App. at 556. We thus

accept as verities that ( 1) Shelcon sent the writing including the 18 percent interest term to

Haymond, and ( 2) Haymond partially performed the revisions to the scope of work and contract

price as outlined in the letter by paying Shelcon the amounts as stated there. Therefore, the

unchallenged findings of fact demonstrate that Shelcon proposed the 18 percent interest term in a


writing, and that Haymond partially performed it.

        Moreover, evidence before the trial court supported its finding that the parties executed

this agreement by their conduct. Martin' s testimony demonstrated that Haymond discussed the

contract document with Martin, that Haymond never objected to its terms, and that Haymond


began to pay cost plus 15 percent as requested in the new contract, demonstrating that he was

performing under the new contract' s terms. Thus, substantial evidence supports the trial court' s

finding that Haymond' s conduct constituted agreement to the 18 percent interest term.

        We hold that where the interest term is in writing, and the debtor partly performed the

provisions in the writing, RCW 19. 52. 010 is satisfied. Therefore, in this case, Haymond' s

performance under the written contract specifying 18 percent interest should satisfy RCW

19. 52. 010. We affirm the trial court' s conclusion that Shelcon was entitled to 18 percent

interest.


C.      Calculation ofInterest

        In the alternative, Haymond argues the trial court' s calculation of interest owing is

erroneous. We disagree.




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          Interest begins to accrue when payment is due if the lien claims interest accruing and the

complaint prays for interest predating the lien filing. CKP, Inc. v. GRS Const. Co., 63 Wn. App.

601, 618, 821 P. 2d 63 ( 1991); Standard Lumber Co. v. Fields, 29 Wn.2d 327, 352, 187 P. 2d 283


 1947).    By contrast, where the lien does not request interest and the complaint does not seek

interest from the date payment was due, prejudgment interest begins to accrue only when the lien

is filed. CKP, 63 Wn. App. at 618; Standard Lumber, 29 Wn.2d at 352.

          The trial   court calculated prejudgment        interest   at $   167, 480. 60. Haymond argues that the .


correct   interest   calculation   is $ 110, 317. 95.   Haymond' s calculation is wrong: he calculates

interest beginning when Shelcon filed the second lien on May 1, 2009. Shelcon' s lien requested

interest, and Shelcon' s First Amended Complaint requested interest from the date payment was

due. Payment was due on September 8, 2008 because the September 8 contract, executed by the

conduct of the parties, called for immediate payment. The trial court properly computed interest

owing from the time         payment was     due to the time      of judgment,    resulting in $ 167. 480. 60, and


Haymond' s argument fails.

                                                III. PRIORITY OF LIEN


          Appellant Anchor Bank challenges the trial court' s findings of fact and conclusions of


law following the trial between Anchor Bank and Shelcon. It argues that the trial court erred in

concluding that ( 1) Shelcon was entitled to record a second lien that included work from the

previous    lien,   which   Shelcon had    released; (   2) equitable doctrines did not apply to estop Shelcon

from including its older work in the second lien; and ( 3) Shelcon began work on July 5, 2006, for

the purposes of establishing Shelcon' s lien priority over Anchor Bank' s deed of trust. We find

no error and affirm.




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A.        Standard ofReview

          Where the pertinent facts are not in dispute, we review de novo the legal issue of the


priority of one lien creditor over another. Kim v. Lee, 145 Wn.2d 79, 85 -86, 43 P.3d 1222

 2001).    We liberally construe the mechanic' s lien statute to provide security for lien claimants.

RCW 60. 04. 900; Williams        v.   Athletic Field, Inc., 172 Wn.2d 683, 697, 261 P. 3d 109 ( 2011).    We


review de novo whether the trial court' s findings of fact supports its conclusions of law. Scott' s


Excavating Vancouver, LLC v. Winlock Properties, LLC, 176 Wn. App. 335, 341 -42, 308 P. 3d

791 ( 2013),   review   denied   sub nom.    First- Citizens Bank & Trust Co.   v.   Gibbs & Olson, Inc., 179


Wn.2d 1011, 316 P. 3d 494 ( 2014).


B.        Ability To Record Second Lien

          Anchor Bank first challenges the trial court' s conclusion that Shelcon was entitled to


record a second lien that included work it had previously included in the first lien, which it had

released. We affirm the trial court' s ruling because a lien release where the underlying work is

not fully paid does not prevent the lien claimant from later recording a second lien.

          Anyone furnishing " labor, professional services, materials, or equipment for the

improvement of real property" is entitled to a•mechanic' s lien " upon the improvement for the

contract price of   labor,   professional services, materials, or equipment      furnished." RCW


60. 04. 021.   The statutory scheme is silent regarding the effect of a lien release. It provides that

when the amount due has been paid and upon demand, the lien holder shall release the lien.

RCW 60. 04. 071.     It does not address the effects of a release upon the rights of any party if a

release is granted without full payment being made.




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               Although there is no case in Washington directly on point, our case law and the rule of

liberal construction of the mechanic' s lien statute both strongly suggest that a lien release does

not preclude a later filing of a lien for some work that was not fully paid but was included in the

original released lien. In A.A.R. Testing Laboratory, Inc. v. New Hope Baptist Church, Division

One       of   this   court   held that "[   a] bsent a true subordination agreement, the priority of mechanics'

and materialmen' s liens against real property is not compromised by waiver and release

agreements executed               in   exchange     for   payment     through a certain         date."    112 Wn. App. 442, 444,

50 P. 3d 650 ( 2002).


               In A.A. R. Testing Laboratory, a general contractor waived, released, and forever

discharged its mechanic' s lien on the subject property as part of a settlement agreement in which

it   also agreed        to   complete    the   work   for    a given sum.        112 Wn.   App.     at   445. Several days before


the parties reached the settlement agreement releasing the lien, the owners of the subject property

obtained         two    construction     loans    and   issued   a   deed   of   trust to the   lending bank. 112 Wn. App. at

446. The bank was aware of the dispute with the contractor, and it conditioned its loan on the

lien      release.      112 Wn. App. at 446. The bank never reached a subordination agreement with the

contractor.            112 Wn. App. at 446. The contractor continued to execute lien releases and waivers

as   it   received payment          for the     work.     112 Wn. App. at 446 -47. Notwithstanding the lien waivers

and releases, Division One of this court held that the contractor' s lien rights retained their


priority over the deed of trust. 112 Wn. App. at 449. It held that the release of liens did not

extinguish            the inchoate     right   to lien for   previous unpaid work.          112 Wn. App. 449 -50.

Therefore, the court held, despite the lien releases, the contractor' s priority over the bank' s deed

of trust still related          back to the first date        of work.      112 Wn. App. at 449.



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          In Geo Exchange Systems, LLC v. Cam, we held that the expiration of an original lien


claim did not foreclose the lien holder from filing a second lien for the same amounts originally

claimed.        115 Wn.    App.   625, 632 -33, 65 P. 3d 11 ( 2003).     We looked to the plain language of the


mechanic' s lien statute, RCW 60. 04. 021, and the section governing filing, and concluded that " as

long as the claimant is still working on the contracted private project, a claimant may file a lien.

A specific lien claim expires within the eight -month period under RCW 60. 04. 141, but the


underlying       right   to claim a   lien does   not expire until   90 days   after work ceases."   115 Wn. App.

at   632 -33.    Thus, as in A.A.R. Testing Laboratory, we construed the lien rights broadly and held

that a lien for an unpaid amount may be filed at any time allowable under the statutory scheme

regardless of the expiration or release of a prior lien for the same amount.9

          Finally, in West v. Jarvi, our Supreme Court gave effect to the broad language of the

mechanic' s lien statutes and held that the voluntary release of a lien did not prevent the

lienholder from filing a second lien upon the discovery that some work had been accidentally

omitted    from the first lien. 44 Wn.2d 241, 250, 266 P. 2d 1040 ( 1954). The West court held that


a rule limiting lien rights " would serve no good purpose, would thwart the legislative intent, and

would enable property owners to defeat lien claims for materials and services of which they had

received    the benefit."      44 Wn.2d at 250. The court acknowledged that estoppel might be




9 We noted in dicta in Geo Exchange Systems that there was no " innocent third -party involved,"
as part of our explanation why the first lien' s expiration did not foreclose the possibility of
refiling. 115 Wn. App. at 632. Anchor Bank argues that this fact distinguishes that case because
Anchor Bank was an " innocent third party" who was prejudiced by the lien release here. But the
existence of an " innocent third party" does not affect the analysis whether the lien release statute
foreclosed Shelcon' s right to file a second lien. Geo Exchange Systems and A.A. R. Testing
Laboratory relied on the plain language of the statutory scheme, as do we.



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appropriate on different facts, such as where the real property owner had relied to her detriment

on the lienholder' s release. 44 Wn.2d at 250. However, in general, the court held that the

release of a lien for less than the amount due ( where the amount liened had been paid) did not


prevent the contractor from filing a second valid lien. 44 Wn.2d at 251.

         Here, the trial court interpreted the statute to mean that the " release of that first lien is not


encumbrance [ sic] upon the second lien unless it affirmatively says that the lien was satisfied."

VRP Sept. 28, 2012 at 17. The facts of this case differ from the facts of A.A. R. Testing

Laboratory, Geo Exchange Systems, and West in a few ways, but we adopt the broad

interpretation of RCW 60. 04. 021 that those cases employed. Anchor Bank does not supply, and

we are not aware of, any case law holding that a lien release extinguishes the right to lien any

work that was unpaid.'°


          We hold that Shelcon' s lien release did not extinguish its right to file a lien for the unpaid


amount. The lien release statute is completely silent regarding the legal effect of a voluntary lien



1°
     Anchor Bank   urges us   to   construe   the   objective   meaning     of   the   release —   that it completely
extinguished all claims on     the   unpaid work —based          on contract principles. In support of this
argument, Anchor Bank cites Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 187, 840
P. 2d 851 ( 1992).   But that case holds that liability releases, not lien releases, are governed by
contract principles.    120 Wn.2d at 187. Anchor Bank fails to provide any case law holding that
lien releases are subject to contract principles, and so we construe the lien release based on the
statutory scheme governing mechanic' s liens.
       Anchor Bank   also cites    DKS Const. Mgmt., Inc.        v.   Real Estate Improvement Co., 124 Wn.

App.    532, 102 P. 3d 170 ( 2004). In that case, Division Three of this court held that a mechanic' s
lien   was extinguished when       the lienholder " voluntarily       and   intentionally    released    its lien."   124

Wn. App. at 537. But the DKS court held that the lienholder was not entitled to file a second lien
outside the 90 -day statutory period after the last day of work. The court did not hold that a
release extinguishes the right to refile a lien within 90 days of the last day of work, as required by
60. 04. 091.   DKS is therefore inapplicable to this case, because Shelcon did file its second lien
within 90 days after its last day of work.



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release without full payment; it merely holds that a lien shall be released upon request when full

payment     has been    made.   RCW 60. 04. 071.        Meanwhile, the statute broadly provides that anyone

furnishing " labor, professional services, materials, or equipment for the improvement of real

property" is entitled to a mechanic' s lien " upon the improvement for the contract price of labor,

professional services, materials, or equipment             furnished." RCW 60. 04. 021.      We construe this


statute   liberally. Williams, 172 Wn.2d at 697. All cases examining similar issues, while

factually   distinct,   conclude   that   a second   lien is   permissible.   We hold that Anchor Bank has


failed to demonstrate that Shelcon was not entitled to file a second lien that included unpaid


work it had previously released and, therefore, find no error in the trial court' s conclusions of

law5and6.


C.        Equitable Estoppel


          Anchor Bank further argues that even if Shelcon was entitled to file a second lien,


Shelcon should be equitably estopped from asserting that lien because it misrepresented the

status of its outstanding work to Anchor Bank. We disagree because Anchor Bank' s reliance on

the lien release as a statement that Haymond had fully paid for Shelcon' s work was

unreasonable.




          Equitable estoppel is a question for the trier of fact unless only one reasonable inference

can   be drawn from the     evidence.       Colonial Imports, Inc.      v.   Carlton Nw., Inc., 121 Wn.2d 726,


737, 853 P. 2d 913 ( 1993).        Courts disfavor equitable estoppel, so a party claiming estoppel must

prove its elements by clear, cogent, and convincing evidence. Nickell v. Southview Homeowners

Ass' n, 167 Wn. App. 42, 54, 271 P. 3d 973 ( 2012).




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        To prove equitable estoppel, Anchor Bank must demonstrate that ( 1) Shelcon made an


admission, statement, or act        inconsistent   with a claim   it later   asserted; (   2) Anchor Bank


reasonably relied on Shelcon' s admission, statement, or act; and ( 3) Anchor Bank was injured as

a result.   See Liebergesell   v.   Evans, 93 Wn.2d 881, 888, 613 P. 2d 1170 ( 1980).             Regarding the

second element, where a party does not know the true facts, reliance is justified only where that

party had   no means   to discover them. Concerned Land Owners of Union Hill                     v.   King   Co., 64


Wn. App. 768, 778, 827 P.2d 1017 ( 1992).

        We assume without deciding that Anchor Bank can demonstrate the first and third factors

of equitable estoppel: that Shelcon made a statement inconsistent with a claim it later asserted,

and Anchor Bank was injured as a result. Shelcon filed an unequivocal lien release, which we


assume for the sake of argument was an act inconsistent with the later claim of liening the work

it had released. 11 Anchor Bank was injured as the result of relying on this act: it loaned

 3, 900, 000 to Haymond as a result of Shelcon' s lien release, and Shelcon' s later lien filing put

Shelcon' s claim on the Farm ahead of Anchor Bank' s deed of trust in priority.

        However, Anchor Bank cannot demonstrate that its reliance was reasonable. It argues


that it relied on the lien release as a statement that Haymond had fully paid Shelcon for its

outstanding work at the Farm. Anchor Bank also relied upon the invoices showing that work

was 100 percent complete for $79, 200 worth of work. But Anchor knew that Haymond was in


debt; this was the reason he sought financing from Anchor Bank. The trial court found that



11 We do not decide that a lien release is a statement inconsistent with a later filing of a lien
including work previously released.




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Haymond asked Anchor Bank to increase the loan amount by $300,000. 12 Anchor Bank did not

inquire of Haymond or of Shelcon whether Haymond had paid or why he needed the extra

 300, 000. Instead, Anchor Bank asked Haymond to have Shelcon release its lien and Shelcon

did so within days. Given these facts, and given Anchor Bank' s knowledge of Haymond' s

financial situation, Anchor Bank has not shown by clear, cogent, and convincing evidence that it

was reasonable to rely on this release as an assertion that Haymond had suddenly paid Shelcon in

full for its work on the Farm. 13 In this case, as the trial court concluded, Anchor Bank had the

means to discover the true facts, but it failed to do so. See Concerned Land Owners of Union

Hill, 64 Wn. App. at 778. 14
           Anchor Bank also argues that " when misrepresentations serve to deceive or mislead a


party, it is immaterial if investigation        would reveal         the truth."   Br. of Appellant (Anchor Bank) at


43   n.   16 ( citing Hoffer   v.   State, 110 Wn.2d 415, 426, 755 P. 2d 781 ( 1988)).                But Anchor Bank' s




12 Anchor Bank challenges this finding of fact. But as explained above, we do not assess this
assignment of error because Anchor Bank challenged the finding only to the extent that we
construe     it to   mean   Haymond     planned  300, 000 to pay Shelcon. Anchor Bank does
                                                  to   use   the $

not dispute that Haymond in fact made this request, nor does it argue that this finding of fact
lacks substantial evidence.


13 We note that Haylnond' s assertion to Anchor Bank that the $ 303, 291. 29 lien on the Farm was
a mistake is irrelevant to determining whether Anchor Bank reasonably relied on Shelcon' s
statements.




14 Anchor Bank argues that the trial court' s finding of fact finding no fault with Anchor Bank' s
protocols     is   proof   that Anchor Bank " reasonably         relied on   Shelcon'   s   lien   release."   Br. of
Appellant ( Sept. 11, 2013) at 42. We disagree. The trial court' s same finding of fact goes on to
explain the suspicious circumstances Anchor Bank could have investigated. The fact that the
trial court found it could not fault Anchor Bank' s practices does not mean the trial court found
that Anchor did not have the means to discover the truth.




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cases supporting this argument all come from the context of fraudulent misrepresentation claims.

See 110 Wn.2d at 425; Boonstra v. Stevens -Norton, Inc., 64 Wn.2d 621, 626, 393 P. 2d 287

 1964);   North Pacific Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 233, 628

P. 2d 482 ( 1981).     Here, Anchor Bank argues that estoppel should apply; it makes no fraudulent

misrepresentation claim. Moreover, as explained above, the situation arguably portrayed by the

lien   release —that   Haymond had suddenly   paid   Shelcon in full —could   not have actually deceived

Anchor Bank, because it      was not plausible.   See North Pacific Plywood, 29 Wn. App. at 233.

And because we look only to misrepresentations made by Shelcon, not Haymond, it is irrelevant

that Haymond     misrepresented    to Anchor Bank that the lien   was a   misunderstanding.   Shelcon


had no involvement with this misrepresentation. Therefore, we agree with Shelcon that Anchor

Bank' s reliance was unreasonable in part because it failed to inquire of Shelcon.

          Anchor Bank argues that the trial court' s conclusions of law are inconsistent with its

findings of fact. The trial court found, for example, that Shelcon released its lien with the


purpose of enabling Haymond to obtain funding from Anchor Bank and that Shelcon generated

statements in its invoices showing that work was 100 percent complete. The trial court also

found that Anchor Bank relied on the lien release and that the trial court could not find fault with


the Bank or its protocols in loaning $3, 900, 000 to Haymond. Anchor Bank argues that these

findings of fact support only the conclusion that equitable estoppel should apply. As described

above, however, these findings of fact demonstrate that, although Anchor Bank may have

innocently relied on Shelcon' s lien release and invoices, it did not reasonably rely on them.

          The trial court found that Anchor Bank had failed to prove equitable estoppel. Estoppel


is a question for the trier of fact unless only one inference can be drawn from the evidence.


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Colonial Imports, 121 Wn.2d at 737. Therefore, the trial court' s findings of fact, supported by

substantial evidence, show that Anchor Bank failed to prove the elements of equitable estoppel


by clear, cogent, and convincing evidence.

D.       First Day of Work

         Finally, Anchor Bank challenges the trial court' s determination that Shelcon' s first day of

work at the Farm for purposes of establishing its lien priority occurred on July 5, 2006. It argues

that Shelcon'   s work on    July   5   was not within   the scope of "professional      services,"     meaning that

Anchor Bank' s deed of trust would have priority over Shelcon' s lien. Br. of Appellant (Anchor

Bank) at 47. We disagree because Shelcon performed work, as defined by the applicable statute,

establishing its lien priority before Anchor Bank' s predecessor in interest recorded its deed of

trust.


         By statute, mechanic' s liens take priority over any lien, mortgage, deed of trust, or other

encumbrance attaching to the land or recorded after the " commencement of labor or professional

services or   first   delivery   of materials or equipment      by   the lien   claimant."   RCW 60. 04. 061.


Lienable work, including professional services, must be done " for the improvement of real

property."    RCW 60. 04. 021. "         Professional services" are " surveying, establishing or marking the

boundaries of, preparing maps, plans, or specifications for, or inspecting, testing, or otherwise

performing any other architectural or engineering services for the improvement of real property."

RCW 60. 04. 011( 13).       The definition     of "improvement"        includes, among       other   things, " providing



professional services upon real property or in preparation for or in conjunction with the intended

activities" of   constructing: or       landscaping.   RCW 60. 04. 011( 5)( c). Therefore, if Shelcon' s work




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Consolidated wi No. 44995 -1 - II


on July 5, 2006 involved, among other things, marking boundaries in preparation for

construction, then it was lienable and takes priority over a later deed of trust.

             Mere preparatory activities alone do not constitute improvement. For example, digging

test holes to measure the water level in the anticipation of beginning construction someday does

not   qualify      under    the   statute   as '   improvement.'          Colorado Structures, Inc. v. Blue Mountain


Plaza, LLC, 159 Wn.               App.   654, 663, 246 P. 3d 835 ( 2011).         Instead, preparatory work must be

done for      an   immediate       purpose of       beginning   an   improvement for lien priority to   attach.   159 Wn.


App.    at   663.    Finally, for preparatory work to be lienable it must be " part of a larger, lienable,

labor   and materials contract."               Pac. Indus., Inc. v. Singh, 120 Wn. App. 1, 9, 86 P. 3d 778 ( 2003);

see also TPST Soil Recyclers of Washington, Inc. v. W.F. Anderson Const., Inc., 91 Wn. App.

297, 302, 957 P. 2d 265 ( 1998).


             The work Shelcon did at the Farm on July 5, 2006 consisted of marking the property

boundaries to prepare for clearing and grubbing. Later that same day, Anchor Bank' s

predecessor in interest, Washington First Bank, recorded its deed of trust on the Farm. On July

10 and 11, 2006, Shelcon employees cleared and grubbed the Farm. Marking the property to

prepare for clearing and grubbing fits within the statutory definition of professional services for

the improvement of real property because they were preparatory work directly in advance of

construction work. Just five days after Martin marked the property, his employees returned to do

the physical work he had prepared for.


             Therefore, Shelcon' s work on July 5, 2006, had a close temporal connection with

construction work, and was part of an overall lienable scheme. See Colorado Structures, 159

Wn.     App.    at   663.    The July 5, 2006 preparatory work was part of Shelcon' s overall scheme of



                                                                     28
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Consolidated wi No. 44995 -1 - II


construction at the Farm, and it occurred just days before the construction work began. The trial


court properly concluded that Shelcon' s work at the Farm on July 5 constituted " professional

services" commencing on the land before the deed of trust, and therefore Shelcon' s lien took

priority over Anchor Bank' s deed of trust.

                                                    ATTORNEY FEES


          Finally, Shelcon seeks reasonable attorney fees on appeal under its agreement with

Haymond. We grant the attorney fees Shelcon requests from Haymond, because Shelcon is the

prevailing party and the contract between Shelcon and Haymond provides for attorney fees.

Shelcon is also entitled to reasonable attorney fees from Haymond under RCW 60. 04. 181( 3),

which provides that the prevailing party in an action to enforce a mechanic' s lien is entitled to

attorney fees. 15' 16

          Shelcon is entitled to reasonable attorney fees on appeal from Anchor Bank under RCW

60. 04. 181( 3) because its action against Anchor Bank was to enforce a mechanic' s lien.




15
     RCW 60. 04. 181( 3)         provides   that the "   court   may   allow   the prevailing party   in the   action ...   as

part of   the   costs of   the   action, ...   attorneys' fees and necessary expenses incurred by the attorney
in the superior court, court of appeals, supreme court, or arbitration."


16In the conclusion section of his brief, Haymond requests that we reduce the trial court' s award
of attorney fees to Shelcon. Haymond neither assigns error to the trial court' s award of attorney
fees nor provides argument and authorities in support of this request. Accordingly, we do not
consider it. RAP 10. 3( a)( 4), ( 6); In re Det. ofBrock, 126 Wn. App. 957, 961 n. 1, 110 P. 3d 791

 2005); Brownfield v. City of Yakima, 178 Wn. App. 850, 875 -76, 316 P. 3d 520 ( 2014).



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       In summary, we hold that the trial court did not err by awarding Shelcon 18 percent

interest, calculating interest, or finding that Shelcon' s lien took priority over Anchor Bank' s deed

of trust. We affirm.




 We concur:
                                                                      Worswick, P. J.
                                                                                        d---
 Melnick, J.




 Sutton, J.




                                                  30
