                                                                                                              F 1, L * D
                                                                                                 C=     P'T CIF            C   c




                                                                                                1' i   sMAR    25    ANI 8: 51




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

CALPORTLAND                COMPANY,       a    California                   No. 43760 -1 - II
corporation,



                                    Appellant,                        PUBLISHED OPINION


          V.




LEVELONE CONCRETE LLC, a Washington
limited        liability company;  DALTON
BROOKS         and   YULIA BROOKS, and their
marital           community;             TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA,             a     Connecticut     corporation;

FERGUSON             CONSTRUCTION               INC.,   a

Washington. corporation, - -- - -




          BJORGEN, J. —       CalPortland Company provided building materials to LevelOne Concrete

LLC, a subcontractor working on the construction of a new Costco building, for which Ferguson

Construction Inc. served as general contractor. After LevelOne failed to pay for the materials,

CalPortland recorded a lien against the Costco property under chapter 60. 04 RCW and later filed

this lawsuit. Before the lawsuit         was   filed, however, Ferguson   recorded a   bond in.lieu    of claim
No. 43760 -1 - II



under RCW 60. 04. 161, issued by Travelers Casualty and Surety Co., releasing the Costco

property from the lien. The trial court granted summary judgment in favor of Ferguson and
Travelers because CalPortland had failed to serve the summons and complaint on Costco and had

not specifically requested foreclosure of the lien in its pleadings. In this appeal by CalPortland,

we hold that service of process on Costco was no longer necessary after Ferguson had recorded

the bond and that CalPortland' s complaint sufficiently identified the relief requested.

Accordingly, we reverse and remand for further proceedings.

                                                   FACTS


        The parties do not dispute the underlying facts in their briefing. Costco contracted with

Ferguson to build a new store in Clark County, and Ferguson subcontracted with LevelOne to

perform work on the project. LevelOne then contracted with CalPortland for delivery of

concrete mix, but never paid for the materials delivered.

        CalPortland properly recorded a claim of lien under RCW 60. 04. 091 against the Costco

property   on   February   2, 2011.   In order to release the Costco property from the lien, on April 1,

2041 Ferguson recorded a bond in lieu of claim under RCW-60-.04.-161 . naming itself as principal -

and Travelers as surety. CalPortland filed its complaint on August 15, 2011.

        CalPortland' s complaint named various defendants, including Ferguson, Travelers

 collectively, " Ferguson "),   and   LevelOne, but did    not name   Costco. CalPortland never served


 Costco with the complaint. The complaint stated five causes of action, one of which was entitled

  Release of Lien Bond" and alleged the facts set forth above, as well as certain other facts

 bearing on the validity of the lien. Clerk' s Papers ( CP) at 5 - 10. In its prayer for relief,



                                                       2
No. 43760 -1 - II



CalPortland     requested "[   j] udgment against Ferguson and Travelers for the principal amount of

not   less than $ 327, 576. 31,"    but did not specifically seek to " foreclose" on the lien. CP at 10.

          Ferguson   answered      the   complaint,     raising   various   defenses. On March 12, 2012,


Ferguson moved for summary judgment on the grounds that

          CalPortland failed to commence a lien foreclosure action within 8 months of
          recording its claim of lien, and failed to serve the owner of the affected property
          within 90 days of filing its Complaint ...     as required by RCW 60. 04. 141 and
          60. 04. 161.


CP at 25 -26. Ferguson and Travelers also requested costs and attorney fees under RCW

64. 04. 181.


          The trial court granted the motion for summary judgment, setting forth the reasons in a

memorandum decision. It explicitly based its decision on " reasons provided in the defendants'

briefing," and concluded that CalPortland

          failed to satisfy the statutory        requirements.       First, the plaintiff failed to serve the
          owner of the subject property within ninety days of initiating an action to enforce
          a   lien. RCW 60. 04. 141. The         plaintiff   failed to    serve   Costco.
                                                                       Secondly to prevail,
           Calportland must adjudicate the merits of the underlying lien, and must seek to
          foreclose on it. Suing on the bond itself is insufficient. They must first prove the
          validity of the underlying lien.

 CP at 146. The trial court ultimately entered judgment in favor of Ferguson for costs and

 attorney fees. CalPortland timely appeals.

                                                         ANALYSIS


           CalPortland argues that it complied with the requirements of chapter 60. 04 RCW and that

 the court below therefore erred in granting Ferguson' s motion for summary judgment.

                  CalPortland                that the   statute   does   not require service of process on   the   owner
 Specifically,                     asserts
No. 43760 -1 - II



of the real property improved by a lien claimant' s labor or materials once a properly recorded

bond in lieu of claim has released the realty from the lien. Ferguson counters that, under the

plain language of the statute, the lien expires if the lien claimant does not timely serve the real

property owner with the summons and complaint, and thus a claimant who fails to do so cannot

seek to collect on the bond. Ferguson further argues that CalPortland did not adequately plead

its claim because it did not specifically seek to foreclose on the lien. We agree with CalPortland.

                                            1. STANDARD OF REVIEw


           Summary judgment is warranted if there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of law. CR 56. We review a grant of

summary judgment de         novo,   performing the     same    inquiry     as   the trial court.   Torgerson v. One


Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                       A party moving for summary

judgment bears the burden of demonstrating that there is no genuine issue of material fact.

Atherton Condo. Apartment -Owners Ass'            n   Bd. of Dir.    v.   Blume Dev. Co., 115 Wn.2d 506, 516,


799 P. 2d 250 ( 1990).      In determining whether summary judgment was proper, we consider all

facts, and the reasonable-inferences therefrom in the light most favorable to the nonmoving -

party.   Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005).


A court should grant summary judgment only if reasonable persons could reach but one

conclusion   from   all   the   evidence.   Vallandigham, 154 Wn.2d at 26.


         The meaning of a statute is a question of law we also review de novo. Dep' t ofEcology

v.   Campbell & Gwinn, LLC, 146 Wn. 2d 1, 9, 43 P. 3d 4 ( 2002). The " fundamental objective" of


                                                                    the Legislature'         intent."   Campbell &
 statutory interpretation " is to    ascertain and            out                        s
                                                      carry


 Gwinn, 146 Wn.2d at 9 -10. Where a " statute' s meaning is plain on its face, then the court must


                                                           M
No. 43760 -1 - II



give effect    to that   plain   meaning      as an expression of   legislative intent."   Campbell & Gwinn, 146


Wn.2d   at   9 - 10.   Such plain meaning " is discerned from all that the Legislature has said in the

statute and related statutes which disclose legislative intent about the provision in question."

Campbell & Gwinn, 146 Wn.2d at 11 - 12. If "
                                           the statute remains susceptible to more than one


reasonable meaning" after such inquiry, it is ambiguous and we must " resort to aids to

construction,     including      legislative     history."   Campbell & Gwinn, 146 Wn.2d at 12.


                                                 II. THE CONSTRUCTION LIEN


        Washington statutes provide that, given proper notice to the owner of the improved


property,


        any person furnishing labor, professional services, materials, or equipment for the
        improvement of real property shall have a lien upon the improvement for the
         contract price of labor, professional services, materials, or equipment furnished at
        the instance of the owner, or the agent or construction agent of the owner.


RCW 60. 04. 021.         The statute specifies that


         t] he lot, tract, or parcel of land which is improved is subject to a lien to the extent
         of the interest of the owner at whose instance, directly or through a common law
         or construction agent the labor, professional services, equipment, or materials
         were furnished

RCW 60. 04. 051.         These liens were formerly known as " mechanics" or " materialmen' s liens,"

but   are now    simply    referred     to   as " construction   liens." 27 ,MARJORIE ROMBAUER, WASHINGTON


PRACTICE: CREDITORS' REMEDIES — DEBTORS' RELIEF § 4. 5 1, at 347 ( 1998).


         The statute imposes a time limit on such liens, however, within which the party seeking

to collect must file suit and serve process in order to preserve its rights:

             n] o lien created by this chapter binds the property subject to the lien for a longer
         period than eight calendar months after the claim of lien has been recorded unless
         an action is filed by the lien claimant within that time in the superior court in the
         county        where     the   subject   property is located to   enforce   the lien,   and   service   is
No. 43760 -1 - II



          made upon the owner of the subject property within ninety days of the date of
          filing the action.

RCW 60. 04. 141.          Thus, to preserve a claim against the property, the claimant must file suit

within 8 months of recording the lien and then serve the property owner within 90 days of filing

suit. Bob Pearson Constr., Inc. v. First Cmty. Bank, 111 Wn. App. 174, 179, 43 P. 3d 1261

 2002).


          The statute also allows the owner or certain other interested parties to release the realty


from the lien by recording a " bond in lieu of claim ":

          Any owner of real property subject to a recorded claim of lien under this chapter,
          or contractor, subcontractor, lender, or lien claimant who disputes the correctness
          or  validity of the claim of lien may record, either before or after the
          commencement           of an   action   to   enforce    the lien ...     a bond issued by a surety
          company      authorized     to issue surety bonds in the            state....        The condition of the

          bond shall be to guarantee payment of any judgment upon the lien in favor of the
          lien claimant entered in any action to recover the amount claimed in a claim of
          lien,   or on   the   claim asserted    in the   claim of   lien.    The effect of recording a bond
          shall be to release the real property described in the notice of claim of lien from
          the lien and any action brought to recover the amount claimed. Unless otherwise
          prohibited by law, if no action is commenced to recover on a lien within the time
          specified in RCW 60. 04. 141, the surety shall be discharged from liability under
          the bond.


RCW 60. 04. 161.          The purpose of this provision " is to allow a party to file a bond to support

transferring to the bond a lien against the property to allow the party supplying the bond to free

up the property for        conveyance."     Olson Eng' g, Inc. v. KeyBank, 171 Wn. App. 57, 66, 286 P. 3d

390 (2012).        Thus, filing the bond does not destroy the lien entirely, but instead transfers the lien

from the    real   property to the bond. DBM           Consulting Eng' rs,        Inc.    v.   U.S. Fid. & Guar. Co., 142


Wn.   App.    35, 42, 170 P. 3d 592 ( 2007) ( holding          that the " lien bond releases the property from the

 lien, but the lien is then secured by the bond ").



                                                                 on
No. 43760 -1 - II



A.        CalPortland' s Failure to Serve Process on Costco

          The essence of Ferguson' s service -of-process argument, on which the trial court relied in

part in granting summary judgment, is that CalPortland' s failure to serve Costco with the

summons and complaint " rendered                   its   action   absolutely   void."     Br. of Resp' t at 15 - 16 ( citing

RCW 60. 04. 141);         Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 251 P. 3d 908

 2011); Pac. Erectors, Inc.            v.   Gall Landau      Young       Constr. Co.,   62 Wn. App. 158, 813 P. 2d 1243

 1991).    Ferguson maintains that this follows from a plain reading of the statute, regardless of

whether Costco had any actual interest in the litigation; pointing out that the statute defines the

property       subject   to the lien   as "`[   t] he lot, tract,   or parcel of   land   which   is improved. "' Br. of


Resp' t   at   18 ( quoting RCW 60. 04. 051).              CalPortland contends that it would have been improper


to serve Costco because the lien had already transferred to the bond at the time that CalPortland

filed suit, and Costco therefore had no further interest in the matter.

          Ferguson' s argument raises an issue of first impression. Although several cases


involving chapter 60. 04 RCW have turned on questions related to service of process and the

filing of a bond in lieu of claim, in none ofthese has the party seeking to collect filed suit after -

the bond in lieu of claim had already been recorded. Because the plain language of the statute

establishes that Costco' s realty was not " property subject to the lien" for purposes of RCW

60. 04. 141' s procedural requirements, we reject Ferguson' s argument and hold CalPortland' s

 service of process on Travelers and Ferguson sufficient.


          The analysis must begin with the language of the statute. Ferguson correctly argues that

 the statute' s language clearly establishes its meaning and that this court should therefore not




                                                                     7
No. 43760 -1 - II



engage in statutory interpretation. Contrary to Ferguson' s assertions, however, the statute' s plain

meaning establishes that CalPortland did not need to serve process on Costco.

        As set forth above, a construction lien cannot bind property for more than eight months

unless the claimant files suit within that time and " service is made upon the owner of the subject

                                             date                                   RCW 60. 04. 141.       Under RCW
property   within   ninety days     of the          of   filing the   action."




60. 04.021 and .051, also set out above, Costco' s realty was the property subject to the lien when

it was first recorded. By operation of law, however, Ferguson' s act of recording the bond

 release[ d] the real property described in the notice of claim of lien from the lien and any action

brought to     recover   the   amount claimed."          RCW 60. 04. 161.        As    we   have   noted, "[    a] lien bond


releases   the property from the lien, [ and] the lien is then             secured       by the bond." DBM Consulting

Eng' rs, Inc.,   142 Wn. App. at 42. As a result, once a bond in lieu of claim is recorded, the lien is

transferred to that bond. Olson Eng' g, 171 Wn. App. at 66.

        The bond did not name Costco as a principal or surety. Thus, when CalPortland filed

suit, Costco' did not have an ownership interest in any property " subject" to the lien within the

meaning - RCW 60: 04: 141 - Iri fact, - plain terms of the statute rendered Costco' s property
        of                            the

immune from " any action brought to recover the amount claimed" by CalPortland. RCW

60. 04. 161.    CalPortland, therefore, had no duty to serve Costco with the summons and

complaint. The only parties with an interest in the bond were Ferguson and Travelers: the

principal and surety named in the security. Thus, the trial court erred in relying on CalPortland' s

failure to serve Costco in granting summary judgment to Ferguson.

           Ferguson points out that in a recent case involving chapter 60. 04 RCW, this court

 accepted   the definition      of "owner" as "`    the    record     holder   of   the legal title, "'   and   held that RCW
No. 43760 -1 - II



60. 04. 141 " obligated [ the claimant] to serve the foreclosure action upon the record holder of the


legal title of the property designated in the claim of lien within 90 days of filing the action, in

order   to       keep   the   lien   alive."   Johnson, 161 Wn. App. at 875 ( quoting 27 RoMBAUER, supra, at

347   n.   1).    Ferguson argues that this authority required CalPortland to serve Costco.

             The definition employed by the Johnson court comes from a leading treatise, in which

Professor Rombauer notes that, based on the legislative history, the term " owner" in RCW

60. 04. 021 "       appears     to   mean      the   record   holder   of the   legal title."   161 Wn. App. at 875; 27

RoMBAUER,           supra, at        347   n. l.     The question addressed at that point by Professor Rombauer

involved at whose instance the materials or services must be provided in order to give rise to a

valid construction             lien. 27 RoMBAUER,             supra, at   347    n. 1.   Here, no one disputes that


CalPortland' s provision of materials initially gave rise to a valid construction lien.

             More importantly, the Johnson court did not face the issue presented here, because the

property owner in that case never posted a bond in lieu of claim at all, let alone prior to the filing
of   the suit.'         161 Wn. App. at 862 -66. In the present appeal, the property designated in the claim

of lien had already been released by operation of law from "the lien and any action brought-to -- -

recover          the amount      claimed" under          RCW 60. 04. 161. After this            release, "[   t] he lien [ was] then




  If anything, the result reached in Johnson tends to support CalPortland' s argument, not
Ferguson' s. The Johnson court held the claimant' s service of process on one Harold Johnson
 sufficient, despite the fact that Johnson did not own the property against which the lien was
 claimed, because Johnson had held himself out as the owner and shared an address with the
 actual owner of record, a                 different    person also named  161 Wn. App. at 862 -66,
                                                                                  Harold Johnson.
 884. Thus, the court refused to allow a technical defect in service of process to defeat a plainly
 valid claim.


                                                                          9
No. 43760 -1 - II



secured   by    the bond      rather   than the [ real] property."     DBM Consulting Eng' rs, 142 Wn. App. at

40. RCW 60. 04. 141           requires service on "      the owner    of   the   subject   property."   After the releases


triggered by the recording of the bond, Costco could not be deemed the owner of the subject

property      under   RCW 60. 04. 141.           The holding in Johnson is not to the contrary.

          Ferguson also points out that, under certain circumstances, a property owner could be

liable for more than the amount of the release -of lien bond, and argues that this supports
                                                   -


interpreting the statute to require service on the real property owner even where such a bond has

been posted. Br. of Resp' t at 16 -18 ( citing RCW 60. 04. 181; Olson Eng' g, 171 Wn. App. at 64;

Irwin Concrete, Inc.          v.   Sun Coast     Prop., Inc.,   33 Wn.   App.     190, 653 P. 2d 1331 ( 1982)).    These


authorities, though, do not bear on the question presented.


          The first authority cited, RCW 60. 04. 181, lays out the procedure a court must follow

when distributing funds after a construction lien is foreclosed and the encumbered property has
been sold. It provides that where " a lien is established, the judgment shall provide for the

enforcement         thereof   upon     the property liable,"     and allows for a personal judgment in the amount


of the deficiency between the foreclosure sale proceeds and the underlying debt, which " may be

                                           any party liable therefor." RCW 60. 04. 181( 2).              The statute says
collected      by   execution against




nothing       about   the   identity   of "the   property liable,"    and thus has no bearing on whom a claimant

must serve in order to preserve its lien under RCW 60. 04. 141.

          In Olson Engineering, another authority cited by Ferguson, KeyBank had recorded a

bond in lieu of claim after it purchased real property subject to a construction lien, and the trial

 court entered a deficiency judgment against the bank when the bond amount proved inadequate

 to   cover   the   claimant' s    attorney fee     award.   171 Wn. App at 62 -64. In the other authority cited


                                                                 10
No. 43760 -1 - II



by Ferguson, Irwin Concrete, a trustee' s sale following foreclosure on a deed of trust had
extinguished a subcontractor' s subsequent construction lien against a parcel. We nonetheless


held the successful bidder liable to the subcontractor on a theory of unjust enrichment. Irwin

Concrete, 33 Wn.    App.   at   194 -95, 198.   In neither of these cases, however, did the court base the


real property owner' s liability on the ground that the realty was subject to the construction lien.
KeyBank was liable regardless because it had named itself as principal when it recorded the

bond in lieu of claim, and the trial court in Irwin Concrete relied on unjust enrichment precisely

because it had dismissed the lien at issue.


        That the owner of the real property improved could under certain circumstances have

personal liability on a claim giving rise to a construction lien, notwithstanding the recording of a

bond in lieu of claim, does not illuminate what the " subject property" is for purposes of RCW

60. 04. 141' s service -of-process requirement. CalPortland' s failure to serve Costco with the

summons and complaint or name it as a defendant might preclude any judgment against Costco,

although we make no ruling on that point, but it does not bear on the validity of CalPortland' s

lien with respect to-the bond recorded by Ferguson:

        Because a bond in lieu of claim had already been recorded, the plain meaning of the

 statutory language did    not require   CalPortland to   serve   Costco. We hold that the trial court erred


 in granting summary judgment on the basis of CalPortland' s failure to serve process on Costco.
 B.      Sufficiency of CalPortland' s Pleadings

         The trial court' s alternative basis for granting summary judgment to Ferguson is that

 CalPortland did not seek to foreclose on the lien. CalPortland disputes this ruling, arguing that

 its complaint properly alleges the existence and validity of the lien. Ferguson argues that the


                                                        11
No. 43760 -1 - II



complaint does not properly allege these matters, because CalPortland did not specifically plead

foreclosure   of the       lien.    CalPortland' s position is correct.


         As an initial matter, Ferguson argues that CalPortland has waived any challenge to the

trial court' s alternative basis for granting summary judgment because it did not properly raise the

issue in its briefing. RAP 10. 3( g) provides that an " appellate court will only review a claimed

error which is included in an assignment of error or clearly disclosed in the associated issue

pertaining thereto."          We generally " do not address issues that a party neither raises appropriately

nor   discusses meaningfully              with citations   to authority."   Saviano v. Westport Amusements, Inc.,


144 Wn.    App.         72, 84, 180 P. 3d 874 ( 2008) ( citing RAP 10. 3(            a)(   6)).   Where a party' s brief makes

perfectly clear what part of the decision below is being challenged, however, we will overlook

the party' s failure to specifically assign error to it, particularly when the text of the brief includes
the disputed portion. In re Disciplinary Proceeding Against Conteh, 175 Wn.2d 134, 144, 284

P. 3d 724 ( 2012) ( citing          State v. Neeley, 113 Wn. App. 100, 105, 52 P. 3d 539 ( 2002)).

         CalPortland'         s   first   assignment of error states   that "[   t]he trial court erred in granting

                                               because-CalPortland complied with [chapter --
 Ferguson' s] motion for summary judgment ". -". -


60. 04 RCW]                           its                   the bond           the                     was released."   Br. of
                   by bringing              claim against              after         real   property


Appellant     at   1.    The brief specifically identifies and quotes in full the trial court' s alternative

basis for its decision, presenting substantial argument as to why that ground did not justify

 granting Ferguson' s motion for summary judgment. Even were we to agree with Ferguson that

 CalPortland' s assignment of error did not specifically challenge the trial court' s alternative basis

 for granting summary judgment, the briefing identifies and reproduces that portion of the trial

 court' s decision and makes the nature of the challenge perfectly clear. RAP 1. 2( 9) mandates that


                                                                 12
No. 43760 -1 - II



  t] hese rules will be liberally interpreted to promote justice and facilitate the decision of cases

on   the   merits."       Following that mandate, we address the merits of the issue.

            CalPortland agrees with the trial court that it must establish the validity of its lien before

it may recover on the bond, but argues that its complaint properly raised the issue. Ferguson

contends that the statute required CalPortland to specifically seek " foreclosure" of its lien within

eight months of recording it, and that failure to strictly comply with the procedural requirement

was fatal to the claim because suits to collect on construction liens are " special proceeding [s].

Br.   of   Resp' t   at   8 - 13.   Thus, Ferguson argues, the construction lien would necessarily have

expired because, in a special proceeding, amendments to the pleadings do not relate back to the

time of filing.

            CalPortland counters that the words " foreclose" or " foreclosure" are not required under

the statute, and would be inappropriate where the lien is not secured by real property. Reply Br.

of Appellant at 3 -6. Because CalPortland' s complaint alleged all the facts needed to establish the

validity of its lien, and the request for relief satisfied the requirements of the construction lien
statute and the rules - f civil procedure-,we hold-that the trial-court erred in granting summary - -
                      o

judgment to Ferguson on the basis of the alleged inadequacy of CalPortland'.s pleadings.

            The law is clear that CalPortland must establish the validity of its lien before it may

 collect on the bond. Olson Eng' g, 171 Wn. App. at 57, 66 ( interpreting RCW 60. 04. 161 such

 that " to be entitled to the proceeds of the lien release bond, the lien claimant must obtain a

 favorable judgment              upon   the lien ").   In DBM Consulting, for example, the construction lien

 claimant prevailed at trial on its breach of contract claim, but did not litigate or obtain judgment

 on   the validity        of   its lien. 142 Wn. App.      at   41.   The DBM court held that the claimant could not



                                                                      13
No. 43760 -1 - II



proceed against the surety named in the bond in lieu of claim because it had not obtained a

judgment    foreclosing    its lien.     142 Wn. App. at 42. The parties do not dispute this point. The

only question is whether CalPortland' s complaint adequately raised the validity of the lien and
CalPortland' s entitlement to the bond proceeds.


        The requirements for a valid construction lien are set forth at RCW 60. 04. 051, and the

procedure    for recording      such a   lien    appears at    RCW 60. 04. 091. In the fifth cause of action stated


in its complaint, CalPortland alleges all the facts necessary both to give rise to a valid

construction lien and to establish compliance with the recording requirements. The complaint

then discusses the bond in lieu of claim, stating that " Defendants Ferguson and Travelers are

bound to pay CalPortland any sum as CalPortland may recover as a result of its claim of lien,
together    with costs of suit."       CP at 9. This is a straightforward attempt to litigate the validity of

the lien.


        RCW 60. 04. 171         provides       that "[   t] he lien provided by this chapter, for which claims of

lien have been recorded, may be foreclosed and enforced by a civil action in the court having
jurisdiction in the mariner prescribed for the judicial foreclosure of                 a mortgage."   The procedure -


for judicial foreclosure of a lien or mortgage is set forth at chapter 61. 12 RCW. Nowhere in that

 chapter does the statute specify that a party seeking to foreclose must identify the action as a

 foreclosure.


         According to the leading practitioner' s treatise on Washington debtor -creditor law,
  foreclosure is    a   form   of   lawsuit,   subject    to the   civil rules of procedure."   27 RoMBAUER, supra,




                                                                   14
No. 43760 -1 - II


                        2
     3. 5   at   141.        With   respect        to   pleadings,   the   civil rules require   only "( 1) a short and plain


statement of the claim showing that the pleader is entitled to relief and (2) a demand for

judgment for the               relief   to   which        he deems himself entitled." CR 8(           a).   The purpose of this


 notice                         rule    is to " facilitate     a proper      decision   on   the merits."    Stansfield v. Douglas
                 pleading"


                  146 Wn.2d 116, 123, 43 P. 3d 498 ( 2002) ( internal                        quotation marks omitted).         A chief
County,

purpose of            the    rules of civil procedure           is " to    eliminate procedural     traps."        Gott v. Woody, 11 Wn.

            504, 508, 524 P. 2d 452 ( 1974).                   To the      extent possible,    then, " the rules of civil procedure
App.

should           be   applied    in   such a       way that   substance will prevail over         form." First Fed. Say. & Loan


Ass' n of Walla Walla v. Ekanger, 93 Wn.2d 777, 781 -82, 613 P. 2d 129( 1980).
                 Under the      heading " Relief requested," the treatise on debtor -creditor law discussed above

further specifies that, in a judicial foreclosure proceeding,

                  t]he prayer of the complaint must specify the relief sought. A money judgment is
                 prayed for from those defendants alleged to have a monetary liability to the
                 plaintiff; a decree of foreclosure is sought against every entity with either a title
                 interest, a junior encumbrance, or a possessory interest; and the right to recover a
                 deficiency is requested or waived and the appropriate redemption period stated.

27 ROMBAUER,                  supra §       3. 5   at   143. Thus, it appears that, where the plaintiff asserts only the - -


monetary liability of a defendant who does not have a title or possessory interest, a request for a

money judgment would suffice.

                 Item       nine of   the   relief requested         in CalPortland'    s complaint    is   a "[   j] udgment against

Ferguson              and    Travelers for the           principal amount of not        less than $ 327, 576. 31."        CP at 10. The



 2
     Ferguson           argues   that these         are special proceedings under            CR 81.    Assuming this to be the case,
 that rule does not affect our analysis. CR 81( a) states that the civil rules shall govern all civil
 proceedings, "[              e] xcept where inconsistent with rules or statutes applicable to special
 proceedings."                Nothing in relevant statutes or other rules requires explicit mention of "foreclose"
 or " foreclosure" in proceedings such as this. Therefore, the statutes and civil rules we discuss
 here resolve this issue.
                                                                               15
No. 43760 -1 - II



complaint also requests costs and       fees   under   RCW 60. 04. 181.    With this, the complaint


contained a concise statement of the nature of the claim and the facts entitling CalPortland to

relief, and demanded the remedy to which CalPortland thought itself entitled: a money

judgment.. The attorney fee request cited to the relevant statute. The complaint gave Ferguson

sufficient notice of the nature of the claim and the matters likely to be at issue.

        Requiring dismissal of the claim simply because CalPortland failed to use the word

 foreclosure" elevates form over substance. Division One of this court recently rejected a

similar argument:




        Infinity contends that while the court' s order provides that Stonewood is entitled
        to " execute" on the bond, the order cannot obligate the surety because it does not
        specifically " foreclose" the lien as required by [ DBM Consulting Engineers, Inc.
        v.   U.S.   Fidelity & Guaranty Co.,      142 Wn.      App.   35, 170 P. 3d 592 ( 2007)].   This
        argument elevates form over substance and misreads DBM, which requires that
        the validity of the mechanics' lien be litigated before execution on the release of
        lien bond is appropriate. DBM does not impose vocabulary requirements for
        judgments.


Stonewood Design, Inc.       v.   Heritage Homes, Inc.,     165 Wn. App. 720, 725, 269 P. 3d 297 ( 2011).

Nor do we read DBM to impose such vocabulary requirements on a party' s pleadings.

         CalPortland' s complaint specified the appropriate relief and the basis for that relief with

 sufficient clarity to allow Ferguson to prepare a defense. We reverse the grant of summary

judgment and remand for adjudication of the validity of CalPortland' s lien.

                                               ATTORNEY FEES


         CalPortland also assigns error to the trial court' s award of costs and fees to Ferguson.

 Because we reverse the trial court' s grant of summary judgment to Ferguson, we also reverse the

 trial court' s fee award.




                                                          16
No. 43760 -1 - II


         Both CalPortland and Ferguson request costs and fees on appeal. RCW 60. 04. 181( 3)


allows for fee awards to the party prevailing before this court in actions involving construction

liens. Because we remand for further proceedings, however, the prevailing party remains to be

determined, and thus no fee award is warranted. If CalPortland prevails on remand, it will be

entitled to the reasonable costs and fees it incurred in this appeal. See Stieneke v. Russi, 145 Wn.

App. 544, 572, 190 P. 3d 60 ( 2008).

         We reverse and remand for further proceedings.




                                                   BJ kfGEN, T
We concur:

 l   i
                        3




J3OHANSON, A.C. J.




Mme, J.




                                                  17
