Trefan Archibald, V. Gina J. Dobson

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GINA J. DOBSON,
DIVISION ONE
Appellant,
No. 82409-1-I
v.
PUBLISHED OPINION
TREFAN ARCHIBALD, a citizen of the
State of Washington,
Respondent.
DWYER, J. — Gina Dobson appeals the summary judgment dismissal of
her breach of contract action against Trefan Archibald. Dobson contends that
she was not required to register as a contractor in order to bring suit and,
accordingly, the trial court erred by dismissing her civil action as being foreclosed
by her unregistered status. Finding no error, we affirm.
I
In June 2018, Trefan Archibald hired Gina Dobson to refinish his
hardwood floors for $3,200. Dobson was not a registered contractor. Indeed,
she was employed as a full-time longshoreman. Archibald had been referred to
Dobson by Daniel Cabrera, for whom Dobson had done “some repair, remodel,
and miscellaneous in-home construction work” in 2016. Cabrera was referred to
Dobson by Anna Stoller, who had previously hired Dobson to repair part of a
foundation, build and install a drain, and refinish a wood floor. Stoller was
referred to Dobson by her realtor, Lisa Sears. Sears had also been Dobson’s
No. 82409-1-I/2
realtor and became aware of Dobson’s construction and home repair work after
she saw improvements Dobson had made to her own home. Sears herself had
also previously hired Dobson to do some painting.
Archibald paid Dobson a $700 deposit prior to Dobson commencing her
work. Dobson worked on Archibald’s floors but at the completion of the project,
on July 6, 2018, Archibald was unhappy with the appearance of the floors. Thus,
Archibald informed Dobson that he would not pay her the remaining $2,500 of
the agreed-upon price.
In response, Dobson recorded a lien against Archibald’s property. She
then commenced this action on May 31, 2019. Archibald filed his answer on
September 13, 2019. On December 8, 2020, Archibald filed a motion for
summary judgment, asserting that because Dobson was not a registered
contractor, she could not bring suit. Dobson then filed a cross-motion for
summary judgment.
In January 2021, Archibald requested leave to amend his answer to
include Dobson’s status as an unregistered contractor as an affirmative defense.
The trial court granted leave to amend. Later that month, the trial court granted
Archibald’s motion for summary judgment, denied Dobson’s motion for summary
judgment, and dismissed the case with prejudice.
Dobson appeals.
II
As an initial matter, we address the nature of the nonregistered contractor
provisions set forth in RCW 18.27.080. Dobson’s contentions on appeal rely on
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the notion that nonregistration is an affirmative defense, which must be timely
pleaded and proved by the defendant. The language of the pertinent statute,
however, does not support this view. That statute, RCW 18.27.080, provides that
[n]o person engaged in the business or acting in the capacity of a
contractor may bring or maintain any action in any court of this
state for the collection of compensation for the performance of any
work or for breach of any contract for which registration is required
under this chapter without alleging and proving that he or she was a
duly registered contractor and held a current and valid certificate of
registration at the time he or she contracted for the performance of
such work or entered into such contract. For the purposes of this
section, the court shall not find a contractor in substantial
compliance with the registration requirements of this chapter
unless: (1) The department has on file the information required by
RCW 18.27.030; (2) the contractor has at all times had in force a
current bond or other security as required by RCW 18.27.040; and
(3) the contractor has at all times had in force current insurance as
required by RCW 18.27.050. In determining under this section
whether a contractor is in substantial compliance with the
registration requirements of this chapter, the court shall take into
consideration the length of time during which the contractor did not
hold a valid certificate of registration.
(Emphasis added.)
In other words, in any action in which the plaintiff seeks
compensation for work as a contractor, the plaintiff is required to allege
and prove that at the time the work was performed, the plaintiff was a
registered contractor with a current and valid certificate of registration.
“Washington contractors cannot sue clients to recover
compensation or for breach of contract if the contractors are not properly
registered.” Coronado v. Orona, 137 Wn. App. 308, 311, 153 P.3d 217(2007). This prohibition is distinct from the affirmative defense of illegality
of contract in that the registration statute does not render the contract
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illegal or void. Davidson v. Hensen, 135 Wn.2d 112, 127, 954 P.2d 1327(1998). Instead, a contractor’s failure to comply with registration
requirements “merely limits its enforceability for public policy reasons.”
Bort v. Parker, 110 Wn. App. 561, 571, 42 P.3d 980 (2002). “Effectively,
an unregistered contractor has no standing to seek redress from the
courts if the person benefiting from the fruits of his unlicensed labor
refuses to pay.” Bort, 110 Wn. App. at 571. By its plain language, the
statute creates not an affirmative defense but, rather, a prerequisite to
suit.
Confusion pertaining to the nature of the requirements created by
the registration statute appears to arise from two published opinions:
Davidson, 135 Wn.2d 112, and Bosnar v. Rawe, 167 Wn. App. 509, 273
P.3d 488 (2012). Both cases address specific factual scenarios that are
not here at issue.
In Davidson, our Supreme Court explained that because the
registration statute did not render an underlying contract void, it did not
impact an arbitrator’s jurisdiction when there was an otherwise valid
agreement to arbitrate. 135 Wn.2d at 130-32. In this context, the
Davidson court perhaps unartfully described nonregistration as “more akin
to an affirmative defense than a jurisdictional issue.” 135 Wn.2d at 130-
31. The court did not, however, hold that nonregistration is an affirmative
defense that must be pleaded by the defendant or be deemed waived.
See Davidson, 135 Wn.2d at 126-33.
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In Bosnar, Division Three of this court initially held that the superior
court’s de novo review of a small claims court decision was limited to the
record before it. 167 Wn. App. at 512. It then further held that, on the
record before it, the small claims court had properly “carefully considered
the nature of the parties’ relationship” and appropriately exercised “its fact-
finding and equitable discretion” in determining that the contract at issue
was between two contractors and therefore suit was not barred. Rawe,
167 Wn. App. at 512-13. See Frank v. Fischer, 108 Wn.2d 468, 472, 739
P.2d 1145 (1987) (registration prerequisite to suit not applicable to
disputes between contractors because “statutory purpose of RCW 18.27
was to protect the public, and the Legislature did not intend to protect
contractors from each other or prime contractors from unregistered
subcontractors”).
Here, Dobson addressed her registration status in her complaint by
alleging that she “is not a contractor under RCW 18.27.010(1)(a) and does
not need to be licensed as a contractor.” Archibald responded to that
averment in his answer by stating that he “objects to the compound nature
of the averments [in the paragraph in question], lacks sufficient information
as to a portion thereof and denies each and every allegation set forth
therein.” As registration—or, as here, the inapplicability of the registration
requirement—must be alleged and proved by the plaintiff, Archibald was
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not required to do anything other than deny Dobson’s allegations for the
matter to be properly put at issue.1
III
Dobson contends that summary judgment dismissal in favor of Archibald
was erroneously granted and that the trial court erred by denying her own motion
for summary judgment. Because there were no material questions of fact and
because Dobson is not entitled to seek relief on her claim in Washington courts,
we disagree.
We review the grant or denial of a motion for summary judgment de novo.
This court engages in the same inquiry as the trial court. Benjamin v. Wash.
State Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary judgment
is appropriate if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121
Wn.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c). All evidence must be viewed
in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co.,
145 Wn.2d 417, 429, 38 P.3d 322 (2002).
Here, it is undisputed that Dobson was not a registered contractor, that
she agreed to refinish Archibald’s floor in exchange for $3,200, that she
performed work on Archibald’s floor (which he found unsatisfactory), and that he
refused to pay her for that work. It is also undisputed that Archibald and Dobson
1 Accordingly, we need not address Dobson’s contention that the trial court erred by
allowing Archibald to amend his pleadings to include Dobson’s nonregistration as an affirmative
defense. The plain language of the statute makes clear that nonregistration is not an affirmative
defense, and both Archibald’s original and amended answers adequately addressed the issue by
denying Dobson’s allegation that she was not a contractor.
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did not have a preexisting social relationship—rather, Archibald hired Dobson
after having been referred to her by Cabrera, for whom Dobson had previously
performed some repair, remodel, and miscellaneous in-home construction work.
Cabrera’s initial connection to Dobson was likewise through a referral from
another one of Dobson’s former clients.
“Contractor” is defined by statute as including
any person, firm, corporation, or other entity who or which, in the
pursuit of an independent business undertakes to, or offers to
undertake, or submits a bid to, construct, alter, repair, add to,
subtract from, improve, develop, move, wreck, or demolish any
building, highway, road, railroad, excavation or other structure,
project, development, or improvement attached to real estate or to
do any part thereof including the installation of carpeting or other
floor covering, the erection of scaffolding or other structures or
works in connection therewith, the installation or repair of roofing or
siding, performing tree removal services, or cabinet or similar
installation; or, who, to do similar work upon his or her own
property, employs members of more than one trade upon a single
job or project or under a single building permit except as otherwise
provided in this chapter.
RCW 18.27.010(1)(a).
Even a single and isolated business venture is not exempt from the
registration requirements of the registration act. Nw. Cascade Constr., Inc. v.
Custom Component Structures, Inc., 83 Wn.2d 453, 460, 519 P.2d 1 (1974).
Accordingly, even when the evidence is viewed in the light most favorable
to Dobson, it establishes that she was a contractor and was not entitled to relief
because she failed to allege and prove that she was properly registered as a
contractor. Dobson, in pursuit of her referral-based side business, undertook a
project to improve Archibald’s building by refinishing the floor of his home.
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Dobson disagrees, citing to Rose v. Tarman, 17 Wn. App. 160, 561 P.2d
1129 (1977), for the proposition that she does not fall into the statutory definition
of a contractor because she is primarily employed as a longshoreman and the
flooring work she performed for Archibald was “an isolated act in her spare time
as a favor.”2 But the cited authority does not provide a safe harbor for Dobson.
In Rose, the court explained that the registration requirement was not
applicable when two friends with a longstanding social relationship entered into
an agreement in which one agreed to provide bulldozing services to the other,
because
the evidence is uncontroverted that Rose was not in the pursuit of
an independent business, as that phrase is understood in plain and
ordinary usage. The record indicates that this transaction between
two social friends was far removed from a typical business
enterprise. Rose did not hold himself out to the public as a
bulldozer operator, nor did he actively solicit a contract with
Tarman. In fact it was Tarman who initiated this agreement by
requesting Rose’s services and the use of his bulldozer, and Rose
acquiesced only after Tarman’s persistent efforts. Rose performed
the work at odd hours in the evenings and in his spare time on
weekends; additionally, there was expert testimony that the alleged
agreed-upon price was far below the going rate for similar work.
Under these circumstances we do not think that Rose comes within
the statutory definition of a contractor as one in the pursuit of an
independent business. Furthermore, the avowed purpose of
preventing unscrupulous contractors from preying on a defenseless
public would not be served by denying access to the courts to an
individual who neither sought nor desired to perform bulldozing
services, and did so only when prevailed upon by a friend.
17 Wn. App. at 163.
Admittedly there are superficial similarities between the facts in Rose and
the facts herein—like Rose, Dobson performed work during her off hours and did
2 Br. of Appellant at 16.
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not initiate the contact between the parties. However, unlike in Rose, Dobson
and Archibald did not have a preexisting “social friend[ship]” that removed their
transaction “from a typical business enterprise.” 17 Wn. App. at 163. To the
contrary, Dobson and Archibald knew each other exclusively through this
business transaction. It is undisputed that Archibald was referred to Dobson by
one of Dobson’s former customers, who himself knew Dobson through another
former customer. This is consistent with a referral-based independent business.
The narrow factual scenario that allowed Rose to avoid the registration bar is
simply not applicable to Dobson. Dobson’s agreement to refinish Archibald’s
wood floor for $3,200 was in pursuit of her independent business, regardless of
her unrelated full-time employment.
We affirm both the trial court’s summary judgment dismissal of the action
and its denial of Dobson’s motion for summary judgment.3
WE CONCUR:
3 As Archibald was the prevailing party at the trial court and remains the prevailing party
on appeal, we reject Dobson’s contention that the trial court erred in awarding reasonable
attorney fees to Archibald pursuant to RCW 4.84.250 and deny her request for attorney fees on
appeal. Archibald does not request an award of attorney fees on appeal, and thus is not entitled
to fees on appeal. See RAP 18.1(b) (“The party must devote a section of its opening brief to the
request for the fees or expenses.”).
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