we must give effect to all language in the statute
How later courts described this case
- we must give effect to all language in the statute
Written by the judges who cited it.
The opinion
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FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
FEBRUARY 9, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 9, 2023
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
GINA DOBSON, ) No. 100862-7
)
Petitioner, )
)
v. ) EN BANC
)
TREFAN ARCHIBALD, )
) Filed: February 9, 2023
Respondent. )
______________________________ )
MONTOYA-LEWIS, J.— In order to protect the public, the Washington State
Legislature passed a law requiring contractors to register with the Department of
Labor and Industries before advertising, offering to do work, or performing any work
as a contractor. RCW 18.27.020. In so doing, the legislature has stated an interest
in protecting the public from unreliable, fraudulent, financially irresponsible, or
incompetent contractors. RCW 18.27.140. Consequently, in any action where an
individual doing work as a contractor sues for breach of contract for work done as a
contractor, that individual is required to allege and prove that at the time they
performed the work, they were a registered contractor. RCW 18.27.080.
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Dobson v. Archibald
No. 100862-7
In this case, a homeowner, Trefan Archibald, hired an individual, Gina
Dobson, to refinish his hardwood floors. Dobson worked as a longshoreman full-
time but did some construction work on the side. Archibald selected her for the job
based on a referral and her reputation of completing similar construction projects.
Upon completion of the floors, Archibald was dissatisfied with the results and
refused to pay the agreed-upon price. Dobson sued for breach of contract and, as
part of the suit, claimed she was not a contractor and did not need to be registered.
We are asked to determine two issues. First, whether such an individual is a
“contractor” under RCW 18.27.010(1)(a). Second, whether nonregistration under
RCW 18.27.080 is an affirmative defense that must be timely pleaded or is otherwise
waived.
The Court of Appeals held that Dobson was a contractor within the meaning
of the contractor registration statutes and that Archibald was not required to raise
nonregistration as an affirmative defense. We agree. We hold that Dobson is a
contractor as defined by statute and that registration is a prerequisite to suit.
Therefore, Dobson was precluded from bringing this lawsuit, and her breach of
contract action was properly dismissed. We affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
Dobson works as a longshoreman, loading and unloading ships at the Port of
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Dobson v. Archibald
No. 100862-7
Seattle’s seaport terminals. Over the last few years, Dobson has simultaneously
completed home repair work for pay on several occasions. Dobson never registered
as a contractor with the Department of Labor and Industries.
In 2018, Archibald, a homeowner in the Seattle area, contacted Dobson to
inquire about refinishing hardwood floors in his home. Archibald learned about
Dobson through a mutual friend; they never had any prior interactions. In 2016,
Dobson had done some work for this friend, such as remodeling his guest bathroom
and miscellaneous in-home repairs and construction work.
Dobson has acquired customers for her home repair work through a referral
process. For instance, Archibald’s friend was referred to Dobson by a second friend
for whom Dobson had also refinished hardwood floors and done some other
construction work. This second friend was referred to Dobson by Dobson’s realtor.
Impressed by improvements Dobson made to her own home, the realtor occasionally
asked Dobson to perform repairs or improvements for the houses she was listing.
When Archibald and Dobson began discussing the hardwood refinishing
project, Archibald asked about Dobson’s work experience. Dobson explained that
she did this type of construction and repair work when not working full time as a
longshoreman, though it is unclear whether she ever claimed to be registered as a
contractor. Archibald specifically wanted Dobson to use a Rubio Monocoat finish
for the project. Dobson had never used that finish before. She typically used
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Dobson v. Archibald
No. 100862-7
polyurethane finish, which is applied using a very different procedure. Despite her
inexperience, Dobson agreed to use Rubio Monocoat at Archibald’s insistence.
Archibald claims that Dobson was not forthcoming about her lack of experience with
the requested finish.
While Archibald was looking for someone to refinish his floors, he also got a
quote from a professional company for $4,321.40, which appears to include the costs
of preparation and materials in the approximate amount of $1,000.00. Archibald
chose to hire Dobson, and they agreed that Dobson would do the work for $3,200.00.
Archibald paid Dobson a $700.00 deposit before the work began, and he purchased
the materials for the job for $579.22. The $700.00 deposit was factored into the
$3,200.00 total, but the $579.22 for the cost of materials was not—this was
additional money out of Archibald’s pocket.
Dobson completed the work during her off-hours from working as a
longshoreman. When Dobson finished the project, Archibald was unhappy with the
appearance of the floors and refused to pay the remaining $2,500.00 of the agreed-
upon price.
B. Procedural History
Dobson filed suit against Archibald for breach of contract. In her complaint,
Dobson alleged that she is not a contractor and did not need to be registered.
Archibald moved for summary judgment, asserting that as an unregistered
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Dobson v. Archibald
No. 100862-7
contractor, Dobson could not bring suit under RCW 18.27.080. Dobson then filed a
cross motion for summary judgment, arguing, in part, that failure to register is an
affirmative defense that Archibald waived. Archibald later amended the answer to
include Dobson’s status as an unregistered contractor as an affirmative defense. The
court granted Archibald’s motion to amend his answer and Archibald’s motion for
summary judgment, denied Dobson’s cross motion for summary judgment, and
dismissed the case with prejudice.
The Court of Appeals affirmed the trial court, holding that Dobson was a
contractor within the meaning of contractor registration statutes and that Archibald
was not required to raise Dobson’s nonregistration as an affirmative defense.
Dobson v. Archibald, 21 Wn. App. 2d 91, 92, 505 P.3d 115 (2022). We granted
review. 199 Wn.2d 1026 (2022).
II. ANALYSIS
We review the grant of a motion for summary judgment de novo. Benjamin
v. Wash. State Bar Ass'n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. CR 56(c). All evidence
must be viewed in the light most favorable to the nonmoving party. Clements v.
Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993).
Whether Dobson qualifies as a contractor and whether her nonregistration
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Dobson v. Archibald
No. 100862-7
constitutes an affirmative defense are questions of statutory interpretation. Statutory
interpretation is a question of law we also review de novo. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). In interpreting statutes,
our “objective is to ascertain and carry out the Legislature’s intent.” Id. We discern
the plain meaning by considering the language of the statute and related statutes. Id.
at 11. If the statute is ambiguous, we then refer to legislative history and other aids
to construction. Id. at 12. If the plain meaning cannot be determined from the
statutory provision at issue, the court considers the statutory scheme as a whole, or
related statutes. Id. at 10. It is also well established that ‘“[t]he drafters of legislation
. . . are presumed to have used no superfluous words and we must accord meaning,
if possible, to every word in a statute.”’ In re Recall of Pearsall-Stipek, 141 Wn.2d
756, 767, 10 P.3d 1034 (2000) (alterations in original) (quoting Greenwood v. Dep’t
of Motor Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975)).
A. Qualifying as a Contractor
As a threshold matter, we must establish whether Dobson is a contractor.
After applying the statutory rules of construction and our standards of review, we
hold that Dobson qualifies as a contractor under RCW 18.27.010(1)(a). The
legislature defines the term, as well as the reasons for requiring registration, and this
case falls squarely within the terminology used in the statute and the basis for it.
The legislature requires contractors to register with the Department of Labor
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Dobson v. Archibald
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and Industries before advertising, offering to do work, or performing any work as a
contractor. RCW 18.27.020. The purpose of this requirement is “to afford
protection to the public” from “unreliable, fraudulent, financially irresponsible, or
incompetent contractors.” RCW 18.27.140; Nw. Cascade Constr., Inc. v. Custom
Component Structures, Inc., 83 Wn.2d 453, 460, 519 P.2d 1 (1974). The registration
act requires strict enforcement. RCW 18.27.005.
“Contractor,” as defined by RCW 18.27.010(1)(a), is
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.
(Emphasis added.)
Rather than attempting to interpret who qualifies as a contractor in a vacuum,
we read RCW 18.27.010(1)(a) in conjunction with the other sections of chapter
18.27 RCW to provide context. Campbell & Gwinn, 146 Wn.2d at 12. For instance,
RCW 18.27.080 states that any person “engaged in the business or acting in the
capacity of a contractor” is prohibited from suing for breach of contract for
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Dobson v. Archibald
No. 100862-7
performance of work if they are not registered as a contractor. (Emphasis added.)
The legislature distinguishes between individuals engaged in the business of a
contractor and those “acting in the capacity of a contractor.” Id. The legislature’s
choice to include not only those who are engaged in the business of contracting but
also those acting in the capacity of a contractor indicates the legislature’s intent to
capture those who do the type of work described under .010(1)(a) both formally and
informally. See, e.g., Pearsall-Stipek, 141 Wn.2d at 767 (we must give effect to all
language in the statute).
Further, RCW 18.27.010(14) defines an “unregistered contractor” as a person
“doing work as a contractor without being registered in compliance with this
chapter.” The legislature’s choice to frame an unregistered contractor in terms of
the work being done rather than whether it is an official business further indicates
the legislature’s intent to capture those who do the type of work described under
.010(1)(a). It is undisputed in the record that Dobson is unregistered, and in looking
at the plain language of the statute as a whole, Dobson is a person who—in acting
in the capacity of a contractor—undertook the project of refinishing Archibald’s
hardwood floors in his home. 1
The Court of Appeals has previously addressed the question of who qualifies
1
Dobson emphasizes the intermittent nature of her home repair work, focusing on the
“pursuit of an independent business” language in RCW 18.27.010(1)(a). Specifically, Dobson
argues that she was not in the pursuit of an independent business and that “business pursuit” is not
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Dobson v. Archibald
No. 100862-7
as a contractor under RCW 18.27.010, .080 in Rose, looking to the facts and
circumstances to determine whether someone was engaged in the business or acting
in the capacity of a contractor. Rose v. Tarman, 17 Wn. App. 160, 561 P.2d 1129
(1977). Those factors, adaptable to differing circumstances, comport with the plain
language of the statute by focusing on whether an individual is acting in the capacity
of a contractor from the formation of the agreement through the performance of the
work. There, Rose agreed to provide bulldozing services in clearing Tarman’s
property. Id. at 161. The Court of Appeals held that contractor registration statutes
were inapplicable based on consideration of the following five specific facts. Id. at
163. First, prior to forming this agreement, Rose had been social friends with
Tarman for five years, and they were far removed from a typical business enterprise.
Id. Second, Rose performed the bulldozing services during odd hours in the
evenings and during his spare time on weekends. Id. Third, the agreed-upon price
for performance was far below the going rate for similar work. Id. Fourth, Rose did
defined in chapter 18.27 RCW. She contrasts the definition of a “business pursuit” insurance
exclusion from Stoughton v. Mut. of Enumclaw, 61 Wn. App. 365, 368, 810 P.2d 80 (1991), with
the concept of an “isolated transaction” for purposes of the sale of a business in Dale v. Black, 81
Wn. App. 599, 601-02, 915 P.2d 1116 (1996). However, neither of those cases involved any
analysis of the contractor registration statutes. Dale, 81 Wn. App. 599; Stoughton, 61 Wn. App.
365. Moreover, Dobson’s reliance on the intermittent nature of her home repair work to assert that
she was not in the pursuit of an independent business is directly foreclosed by this court’s precedent
established by Northwest Cascade. There, we held that a party engaging in a single isolated
business venture is not exempt from the requirements of the registration act. Nw. Cascade Constr.,
Inc., 83 Wn.2d at 459. Reading the statute plainly, we are unpersuaded that Dobson’s intermittent
contracting work was not in the “pursuit of an independent business.”
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Dobson v. Archibald
No. 100862-7
not hold himself out to the public as a bulldozer operator. Id. Finally, Tarman was
the person to actively solicit a contract with Rose. Id.
Today, we adopt the Rose court’s analysis as a rule. In determining whether
or not an individual is a contractor in the pursuit of an independent business, the
court considers (1) the nature of the relationship with the client, (2) the time of
performance, (3) the agreed-upon price for performance and whether it is
substantially below the going rate for similar work, (4) the public perception of the
individual’s role in performing such work, and (5) which party solicits the contract.
On balance, we find that these factors weigh in favor of Dobson qualifying as a
contractor. While the second and fifth factors weigh against Dobson being a
contractor, the remaining three factors weigh strongly in favor of such a finding.
As to the first factor, Dobson and Archibald have a referral-based,
businesslike relationship. Dobson and Archibald were not even acquaintances, let
alone social friends. The only way they got in touch was through a referral from one
of Dobson’s and Archibald’s mutual friends. However, there is no indication that
friendship or any relationship beyond this transaction developed between Dobson
and Archibald, and the referral was strictly based on the similar home repair work
Dobson had done for the friend. The professional, rather than personal, nature of
this relationship weighs in favor of Dobson being a contractor.
As to the third factor, the price of performance is substantially within the
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Dobson v. Archibald
No. 100862-7
going rate for similar work. Specifically, Dobson and Archibald agreed on
$3,200.00 for the price of performance. However, Archibald was also responsible
for purchasing the materials to refinish the floors, which cost $579.22. Therefore,
the total cost of the project was $3,779.22. The quote from the professional company
indicated that it would have charged $4,321.40, which appears to include the cost of
preparation and materials in approximately the amount of $1,000.00. Thus, the
comparative costs excluding preparation and materials were $3,200.00 for Dobson
and approximately $3,321.40 for the professional company and including
preparation and materials, $3,779.22 for Dobson and $4,321.40 for the professional
company. Therefore, we conclude that the agreed-upon price of performance for
Dobson’s work is not substantially below the going rate for similar work.
Moreover, additional benefits may have been included in the price for the
professional company. First, the professional company would have provided the
convenience of handling the purchase and organization of all materials and
preparation of refinishing the floors. Second, while Dobson had never before used
the Rubio Monocoat finish, no facts in the record suggest that this professional
company also lacked experience with the requested finish. Thus, the professional
company’s costs also may have included a greater level of experience and
confidence using that finish. As a result, we conclude that the agreed-upon price of
performance with Dobson is not substantially below the going rate for similar work,
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Dobson v. Archibald
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which weighs in favor of Dobson being a contractor.
As to the fourth factor, Dobson held herself out to the public as a contractor.
Though the parties dispute whether Dobson represented that she was a registered
contractor, Dobson took on home repair work for pay based on referrals by previous
clients. Even in viewing the facts in the light most favorable to Dobson, she was
earning money for construction work she got based on referrals by other people she
had worked for, beginning with a realtor with whom Dobson had a professional
relationship. The realtor was impressed by the improvements Dobson had made to
her own home, so she asked Dobson on multiple occasions to perform repairs or
improvements for the houses she was listing. This was a business relationship
between two professionals that laid the foundation for the chain of referrals leading
to Archibald. The public is likely to believe that someone who gets work based on
these business relationships and referrals from other clients is in fact a contractor.
Only the second and fifth factors weigh against finding Dobson a contractor.
As to the second factor, Dobson refinished Archibald’s hardwoods during her off
time from working as a longshoreman. As to the fifth factor, Archibald initiated
contact with Dobson. Balancing all of the factors together, we hold that Dobson is
a contractor.
This fact-specific analysis is consistent with the legislature’s stated intended
purpose for chapter 18.27 RCW. See, e.g., Campbell & Gwinn, 146 Wn.2d at 9
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(“The court’s fundamental objective is to ascertain and carry out the Legislature’s
intent.”). Namely, the purpose of the chapter is “to afford protection to the public
including all persons, firms, and corporations furnishing labor, materials, or
equipment to a contractor from unreliable, fraudulent, financially irresponsible, or
incompetent contractors.” RCW 18.27.140. Since the stated purpose of the
registration act is indeed to prevent fraud against the public, even a single and
isolated business venture is not exempt from registration requirements. Nw.
Cascade Constr., Inc., 83 Wn.2d at 459. Dobson engaged in multiple contractor
jobs ranging from in-home repairs to refinishing floors to entirely remodeling a
bathroom. She had multiple clients, who relied on her quality of service through a
referral process. Failing to recognize that these circumstances constitute “acting in
the capacity of a contractor” would be contrary to the intent of the registration statute
to protect the public. RCW 18.27.080; see also Nw. Cascade Constr., Inc., 83 Wn.2d
at 460.
As a result, we affirm the Court of Appeals decision. We hold that Dobson is
a contractor within the meaning of contractor registration statutes.
B. Registration as a Prerequisite to Suit
Since Dobson was required to register as a contractor, we must also determine
whether registration is a prerequisite to suit or whether nonregistration is an
affirmative defense. If failure to register precludes the contractor from bringing the
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Dobson v. Archibald
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suit, then the plaintiff-contractor must allege and prove that they either registered or
are not required to register. If nonregistration is an affirmative defense, then the
defendant-customer must timely raise it or it is otherwise waived. We hold that the
registration requirement is a prerequisite to suit; thus, since Dobson was required to
register as a contractor but did not do so, she cannot use the courts of law to enforce
the contract.
RCW 18.27.080 is titled “Registration prerequisite to suit.” (Emphasis
added.) In this section, the legislature requires contractors to show that they are
registered in order to bring a breach of contract action. Specifically, 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.
(Emphasis added.) In other words, contractors in Washington can sue clients only
to recover compensation or for breach of contract if the contractor is properly
registered, and the contractor holds the burden to allege and prove their registration.
Coronado v. Orona, 137 Wn. App. 308, 311, 153 P.3d 217 (2007). Failure to register
bars the contractor from bringing the suit at all. This section is in derogation to the
common law and must be strictly construed. Andrews Fixture Co. v. Olin, 2 Wn.
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Dobson v. Archibald
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App. 744, 749, 472 P.2d 420 (1970). The effect of nonregistration under this statute
is that the contractor cannot recover in court, not that the contract is rendered void
or illegal. Davidson v. Hensen, 135 Wn.2d 112, 127, 954 P.2d 1327 (1998); Bort v.
Parker, 110 Wn. App. 561, 571, 42 P.3d 980 (2002). The plain language of the
statute identifies registration as a prerequisite to sue.
There is no indication anywhere in chapter 18.27 RCW that nonregistration is
an affirmative defense that could be waived. However, Dobson contends that this is
the case and that Archibald waived it by neglecting to timely plead nonregistration
as a defense. Dobson’s confusion stems from two prior decisions that reference
affirmative defense in dicta. We decline to adopt that dicta in our holding.
First, in Davidson, this court stated in dicta that “nonregistration is more akin
to an affirmative defense than a jurisdictional issue” because it limits enforceability
of a contract rather than rendering a contract illegal and void. Davidson, 135 Wn.2d
at 130-31. But we did not hold that nonregistration is in fact an affirmative defense;
rather, we held that because nonregistration does not render the contract illegal, there
was no ground for judicial review of an arbitration award based on illegality of
contract. Id. at 126-27.
Second, in Bosnar, the Court of Appeals held that when a contract involves
an employer/employee relationship with “attempts to work around the contractor
registration problem,” the suit is not barred on the basis of nonregistration. Bosnar
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v. Rawe, 167 Wn. App. 509, 512-13, 273 P.3d 488 (2012). The Court of Appeals
also noted, based on Davidson, that the owner “failed to properly assert RCW
18.27.080,” but it did so under the incorrect assumption that the Davidson court held
RCW 18.27.080 was an affirmative defense. See id. at 512-13, 510. Moreover, the
question of which party must raise the issue of registration was not dispositive to the
conclusion in Bosnar that the district court did not err in finding RCW 18.27.080
inapplicable to a contract between an employer and employee. Id. at 510. Neither
of these cases held that nonregistration is an affirmative defense.
We rely on the plain meaning of the statute. RCW 18.27.080 states that
registration is a prerequisite to suit and is intended to ensure anyone acting in the
capacity of a contractor registers with the state or forfeits the right to sue to enforce
a contract on the basis of nonpayment. Dobson did not fulfill the prerequisite to
register as a contractor and therefore forfeited her right to sue for breach of contract.
Finally, Dobson misinterprets Civil Rule 8(c) as support for the assertion that
the registration statute is an affirmative defense. CR 8(c) requires affirmative
defenses such as “illegality” to be set forth in the pleadings. However, as we have
explained, a contractor’s failure to comply with registration requirements does not
render the underlying contract illegal or void, but rather it “merely limits its
enforceability for public policy reasons.” Bort, 110 Wn. App. at 571; Davidson, 135
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Dobson v. Archibald
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Wn.2d at 127. Thus, CR 8(c)’s requirement for affirmatively pleading illegality as
a defense is inapplicable.
Consequently, we affirm the Court of Appeals. We hold that registration
under RCW 18.27.080 is a prerequisite to suit, and nonregistration is not an
affirmative defense that must be timely pleaded or otherwise waived. Since Dobson
did not fulfill the prerequisite of registering as a contractor, she is barred from suit
for this breach of contract action.
C. Attorney Fees
Neither party is entitled to an award of attorney fees and costs on appeal. RAP
18.1. Though Archibald is the prevailing party, he is not entitled to attorney fees
because he failed to request attorney fees from the Court of Appeals in his opening
brief. RAP 18.1(a)-(b), (j). Dobson is not entitled to attorney fees either because
she is not the prevailing party. RAP 18.1(a)-(b).
III. CONCLUSION
The legislature intended to protect the public from individuals who acted in
the capacity of a contractor but failed to follow the law requiring them to register as
contractors with the state. As the legislature laid out clearly, this statute seeks to
protect the public from “unreliable, fraudulent, financially irresponsible, or
incompetent” contractors. RCW 18.27.140. Based on the complaint and answer in
this case, Dobson acted as a contractor but failed to register as one. Therefore,
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Dobson was barred from bringing suit for breach of contract and such action was
properly dismissed. We also decline to award attorney fees and costs to either party
on appeal. Accordingly, we affirm and remand to the trial court for further
proceedings consistent with this opinion.
______________________________
WE CONCUR:
___________________________ ______________________________
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