Opinion Information Sheet

			

                                                                               FILED
                                                                           MAR 29, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RICHARD RAWE,                                             No.  29781-1-III
                                                )
                      Appellant,                )
                                                )         Division Three
              v.                                )
                                                )
MARIJAN BOSNAR,                                 )         PUBLISHED OPINION
                                                )
                      Respondent.               )
                                                )

       Brown, J. ? Richard Rawe appeals the superior court's decision upholding a 

small claims decision by a district court commissioner that granted Marijan Bosnar's 

complaint for money due in performing labor for Mr. Rawe.  Mr. Rawe contends the trial 

court erred in failing to apply RCW 18.27.080 because Mr. Bosnar is not a "duly 

registered contractor."  We, like the superior court in de novo review, conclude Mr. 

Rawe failed to properly assert RCW 18.27.080; we, like the trial court in our de novo 

review, consider a hybrid hourly employment arrangement and hold the trial court did 

not err in awarding $1,400 to Mr. Bosnar.  Accordingly, we affirm.               

                                            FACTS

       Mr. Rawe owned residential rental property needing considerable repairs, 

No. 29781-1-III 
Rawe v. Bosnar

including leveling and reinforcement. He contacted Mr. Bosnar about the work.  Mr. 

Bosnar told Mr. Rawe he was not a registered contractor, but had been before he 

retired. Eventually, the parties agreed to an arrangement mixing cost reimbursements, 

hourly employment, and an understanding that a minimum amount of work would be 

required.  Disputes arose as to the scope of Mr. Bosnar's work and whether the work 

would be done on an hourly or lump sum basis.  The parties were unable to resolve 

their differences and Mr. Bosnar sued Mr. Rawe in small claims court for money owed.    

       At trial, Mr. Rawe commented Mr. Bosnar was not a registered contractor, "so he 

cannot make any binding contract that the court can enforce." Report of Proceedings 

(RP) at 18.  The small claims court entered a $1,400 judgment for Mr. Bosnar without 

specifically addressing Mr. Bosnar's status as an unregistered contractor.  Rather it 

articulated their arrangement to pay costs, Mr. Bosnar's hourly rate, and the expected

amount of minimum employment.  Mr. Rawe appealed to the superior court.  

       The superior court on de novo review affirmed, explaining in a letter decision 

that its judgment was partly based on Mr. Rawe's failure to raise the issue of Mr. 

Bosnar not being a registered contractor as an affirmative defense before the small 

claims court. Mr. Rawe unsuccessfully requested reconsideration.  This appeal 

followed.   

                                          ANALYSIS

       The issue is whether the trial court erred in failing to consider and apply the non-

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registered contractor provisions of RCW 18.27.080 to prevent Mr. Bosnar from bringing 

his claim for money owed.  Mr. Rawe contends he did not need to do more to assert 

this affirmative defense in small claims court.  

       We review a superior court's order denying reconsideration for abuse of

discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 

685, 41 P.3d 1175 (2002).  The issue of whether RCW 18.27.080 bars Mr. Bosnar's 

claim, however, is a question of law, which we review de novo.  Dougherty v. Dep't of 

Labor & Indus., 150 Wn.2d 310, 314, 76 P.3d 1183 (2003).

       In Anderson v. Frandsen, 36 Wn. App. 353, 356, 674 P.2d 208 (1984), Division 

One of this court held, "RCW 18.27.080 . . . prohibits actions brought by [an 

unregistered] contractor." Additionally, this court has held, "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) (citing RCW 18.27.080)).  

       But our Supreme Court clarified in Davidson v. Hensen, 135 Wn.2d 112, 123, 

954 P.2d 1327 (1998), a party that does not, "timely assert the affirmative defense of 

nonregistration," waives it.  In Davidson, the homeowners sought to overturn an 

arbitration award in favor of the contractor.  The Court held, "We decline to overturn the 

arbitrator's award based on a refusal to re-open the hearing for additional evidence . . . 

.  The Davidsons had an opportunity to timely assert nonregistration before the 

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Rawe v. Bosnar

arbitrator, but failed to do so."  Id.  

       In his factual recitation, Mr. Rawe testified he was aware beforehand that Mr. 

Bosnar was not a registered contractor and understood unregistered contractors, 

"cannot make any binding contract that the court can enforce." RP at 18.  But he did 

not specifically object or raise the issue, preferring instead to dwell on their working 

relationship and Mr. Bosnar's failure to keep good track of his work time.  The court's 

lack of discussion of this issue highlights that the issue was not sufficiently raised. Mr. 

Rawe did attempt to formally raise the registration issue before the superior court, but 

the superior court was limited on de novo review to the record before it.  See Hand, 38 

Wn. App. at 172 (superior court's review of a small claims judgment is de novo on the 

record).  Thus, because Mr. Rawe did not properly raise the registration defense below, 

under Davidson, the defense is waived.  Accordingly, the small claims court properly 

entered judgment in favor of Mr. Bosnar after sorting out the parties' factual disputes.  

       In sum, the trial court's decision shows it carefully considered the nature of the 

parties' relationship.  The record amply reflects the parties' attempts to work around the 

contractor registration problem by contemplating Mr. Bosnar's employment on an hourly 

basis, not as a contractor, with costs paid by Mr. Rawe and with a minimum amount of 

employment estimated.  In the end, the trial court in exercising its fact-finding and 

equitable discretion treated Mr. Rawe as an owner/contractor employing Mr. Bosnar.

       Mr. Rawe requests attorney fees on appeal under RCW 4.84.185 (frivolous 

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action), RCW 18.27.350 (Consumer Protection Act), and RCW 19.86.090 (unfair 

business practices). An attorney fee award under these statutes is predicated on Mr. 

Rawe being the prevailing party.  He is not.  Therefore, his fee request is denied.

       Affirmed.

                                                    _______________________________
                                                    Brown, J.

WE CONCUR:

____________________________                        _______________________________
Korsmo, A.C.J.                                      Sweeney, J.

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