Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LIGHTWEIGHT STEEL FRAMING                   )
2007 LTD., a Washington corporation,        )
                                            )       No. 66032-2-I
                      Appellant,            )
                                            )       DIVISION ONE
          v.                                )
                                            )
W.G. CLARK, CM, INC., a Washington          )       UNPUBLISHED OPINION
corporation; BRIX CONDOMINIUM,              )
LLC, a Washington limited liability         )
company; et. al.                            )
                      Respondents.          )       FILED:   April 30, 2012
_______________________________  )

       Spearman, A.C.J.  --  A dismissal without prejudice is not appealable 

unless its effect is to determine the action and prevent a final judgment or to 

discontinue the action.  Because we conclude that the order dismissing the 

complaint in this case without prejudice is not appealable, and because 

discretionary review is not warranted, we dismiss the appeal.

                                        FACTS

       In 2007, subcontractor Lightweight Steel Framing 2007 Ltd. (LSF) and 

general contractor W.G. Clark, Inc. (WGC) executed a contract for work on a 

condominium project.  Sections U2 and U3 of the contract required the parties to 

submit their disputes to nonbinding mediation, followed by binding arbitration.  

Section U3 also states the following: 

No. 66032-2-I/2

       Subcontractor agrees not to file any claim in mediation, arbitration, 
       or litigation, until thirty (30) days after having submitted its full 
       claim in writing to Mike Ducey, president of [WGC] along with
       detailed cost documentation and all points of argument in 
       Subcontractor's favor.  Subcontractor acknowledges its 
       responsibility to cooperate with [WGC] in avoiding unnecessary 
       arbitration or litigation providing [WGC] all information available 
       upon which a decision can be made.1  

WGC assigned the contract to the project developer, Brix Condominium, LLC 

(Brix), and gave notice that all references in the contract to WGC would be 

deemed to mean "Brix."  

       In 2008, Brix terminated LSF and a dispute arose over LSF's unpaid 

invoices.  By letter dated February 4, 2009, Brix invoked the arbitration and 

mediation provisions of the contract and made a formal demand for arbitration.  

The parties subsequently agreed on a mediator and arbitrator but were unable to 

agree on mediation dates.  

       In August 2009, LSF filed a complaint in King County Superior Court

against Brix and others for breach of contract, quantum meruit, lien foreclosure, 

and recovery of its contractor registration bond.  The complaint requested a stay 

pending resolution of the claims in mediation and arbitration.  In an amended 

complaint, LSF dropped its lien claims but continued to request a stay.  Both 

complaints requested relief in amounts to be proven "at trial or arbitration."  

       1 (Emphasis added.) 

                                          - 2 - 

No. 66032-2-I/3

       In August 2010, Brix moved for summary judgment.  Citing section U3 of 

the parties' contract, it argued that LSF had filed claims in litigation without

satisfying the conditions precedent for such claims.  In a response titled 

"Response To . . . Motion for Summary Judgment . . . [a]nd Plaintiff's Motion to 

Compel Arbitration," LSF argued that issues of fact existed regarding its 

compliance with section U3, that the court should stay the litigation, and that the 

court should compel Brix and WGC to arbitrate the dispute.  The response and 

accompanying declarations alleged that Brix had "refused to set arbitration 

dates."  Brix replied that LSF had not satisfied section U3's condition precedent 

to suit and that the lawsuit therefore had to be dismissed.  It also argued that 

LSF had not noted nor filed a motion to compel arbitration, that an arbitration 

was already pending, and that only the arbitrator, not the court, had authority to 

set dates in the arbitration proceeding.  

       On September 10, 2010, the superior court granted summary judgment 

dismissing the complaint without prejudice due to LSF's "failure to comply with a 

condition precedent to filing this lawsuit." LSF appeals.    

                                      DECISION

       LSF contends the superior court erred in dismissing its complaint.  It 

argues that its compliance with section U3 of the contract was a question for the 

                                          - 3 - 

No. 66032-2-I/4

arbitrator, respondents waived enforcement of section U3 by filing for arbitration,

and there were issues of fact concerning LSF's compliance with section U3. 

LSF also contends the court erred in failing to grant its motion to compel 

arbitration.

       Brix responds that the court's dismissal without prejudice is not 

appealable, and that the court did not err in granting summary judgment in any 

event.  Brix also argues that LSF did not note or file a motion to compel 

arbitration or mediation, and even if the motion was properly before the court, 

only the arbitrator had authority to require the parties to set dates for mediation 

and arbitration. We conclude the order on review is not an appealable order.

       A dismissal without prejudice is not appealable unless its effect is to 

determine the action and prevent a final judgment or to discontinue the action.  

RAP 2.2(a)(3); Munden v. Hazelrigg, 105 Wn.2d 39, 44, 711 P.2d 295 (1985).  

The dismissal without prejudice in this case did not effectively determine the 

action or prevent a final judgment.  The complaint can be refiled if and when LSF 

satisfies the condition precedent.  LSF claims that Brix  "can simply continue to 

assert that whatever information [a]ppellant has supplied or may supply in the 

future does not comply" with the condition precedent.  But just because such 

assertions can be made does not mean that the superior court must accept 

                                          - 4 - 

No. 66032-2-I/5

them.  The dismissal without prejudice is not appealable.

       LSF argues alternatively that the order is appealable because it implicitly 

denied LSF's motion to compel arbitration.  An order denying a motion to compel 

arbitration is appealable as a matter of right under RAP 2.2(a)(3); Verbeek 

Props., LLC v. GreenCo Envtl., Inc., 159 Wn. App. 82, 86, 246 P.3d 205 (2010).  

But the record does not support LSF's claim that the court implicitly denied its 

motion to compel arbitration.  The motion is not mentioned in either the order of 
dismissal or the narrative report of proceedings.2  Furthermore, given the 

arguments in the briefing below, the court could have concluded that the motion 
was not properly before it or was moot and therefore need not be addressed.3  In 

these circumstances, there is no basis to conclude that the court implicitly 

denied, or even ruled on, the motion to compel arbitration.  Accordingly, this 

contention fails and the order is not appealable.  

       RAP 5.1(c) provides that a notice of appeal of a decision that is not 

appealable will be treated as a notice for discretionary review.  This court will 

       2 Although the narrative report ends with to the assertion that "[a]ppellant's motion to 
compel arbitration was implicitly denied," this is plainly post-hoc commentary, not a statement 
attributable to counsel or the court.

       3 Brix argued below that the motion was not properly noted or filed, the motion was 
essentially moot since arbitration was pending, the motion was raised in the lawsuit and therefore 
had to be dismissed along with the lawsuit, the setting of mediation/arbitration dates was a 
matter for the arbitrator, and LSF had to prove compliance with the condition precedent before it 
could make a motion to compel.

                                          - 5 - 

No. 66032-2-I/6

grant discretionary review only on the narrow grounds set forth in RAP 2.3(b).  

LSF has not argued that it is entitled to discretionary review and nowhere 

addresses the criteria in RAP 2.3(b).  Nevertheless, we have reviewed the 

record in light of those criteria and have determined that discretionary review is 

not warranted.  

       We deny both parties' request for attorney's fees on appeal and dismiss 

the appeal.

WE CONCUR:

                                          - 6 -