King Carpentry v. 1345 K Street, SE, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 19-CV-1162 & 20-CV-0422

KING CARPENTRY, INC., APPELLANT

V.

1345 K STREET SE, LLC;

ADI CONSTRUCTION OF VIRGINIA, LLC;

GREAT AMERICAN INSURANCE COMPANY, APPELLEES.

Appeals from the Superior Court

of the District of Columbia

(CAB7636-18 & CAB7634-19)

(Hon. Fern Flanagan Saddler & Hon. Jason Park, Trial Judges)

(Argued September 16, 2021 Decided November 4, 2021)

Stephen M. Seeger, with whom Alexandra E. Busch was on the brief, for

appellant.

Alexia Kent McClure, with whom Deanna L. Peters, of the bar of the State of

Virginia, pro hac vice, by special leave of court, was on the brief, for appellee ADI

Construction.

J. Andrew Baxter for appellee 1345 K St SE, LLC.

Eric G. Korphage for appellee Great American Insurance Company.

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Before GLICKMAN, EASTERLY, and DEAHL, Associate Judges.

EASTERLY, Associate Judge: In these consolidated appeals, we analyze the

distinction between mandatory and permissive forum selection clauses. We also

examine the Subcontractor’s Lien statute, D.C. Code § 40-303.01 et seq. (2012

Repl.), to determine whether certain procedural requirements ensuring notice of

encumbrances on real property apply when a lien on the property has been released

and replaced with an undertaking. We conclude that the trial court dismissed King

Carpentry’s complaint based on an incorrect analysis of both of these issues in the

first order on appeal in 19-CV-1162, and we reverse and remand for further

proceedings consistent with this opinion. And because our reversal of the first

judgment strips it of any res judicata effect, we likewise reverse the second order on

appeal in 20-CV-422 dismissing King Carpentry’s complaint on res judicata

grounds.

I. Facts and Procedural History

1345 K Street SE, LLC, the owner and developer of the property at that

address in the District, hired ADI Construction of Virginia to serve as the general

contractor on a condominium project at that location. ADI hired King Carpentry as

a subcontractor for rough carpentry and framing. ADI and King Carpentry signed a

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contract with a forum selection clause stating that the parties “consented to personal

jurisdiction and venue, for any action arising out of breach or threatened breach of

this Agreement in the Circuit Court in and for Fairfax County, Virginia.” During

the project, they had disagreements about the scope of work and compensation.

When King Carpentry did not get paid the amount it thought it was due, it filed a

Notice of Mechanic’s Lien against the development property with the District’s

Recorder of Deeds pursuant to a section of the District’s Subcontractor’s Lien

statute, D.C. Code § 40-303.03.

After the recordation of the mechanic’s lien, 1345 K Street SE and ADI filed

a “Consent Petition for Approval of Written Undertaking to Release Mechanic’s

Lien” pursuant to D.C. Code § 40-303.17; see also D.C. Code § 40-303.16. In the

consent petition, they asked the Superior Court to approve the substitution of a bond

issued to them by Great American Insurance Company (“GAIC”) as security for any

judgment against the property, 1 direct recordation of the undertaking, and order

1

The Bond, signed by representatives from 1345 K Street SE and ADI,

acknowledged both the existence of King Carpentry’s mechanic’s lien and the ability

under the District’s Subcontractor’s Lien statute to discharge the lien upon filing of

an undertaking and bond. It then stated that:

Effective upon approval . . . by the Superior Court of the District of Columbia

and recordation of an undertaking by Principals with the Recorder of Deeds

for the District of Columbia, in the event that any final judgment is entered by

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“release [of] the [p]roperty from the lien filed by . . . King Carpentry.” The Superior

Court granted the petition and issued an order approving the undertaking and bond,

directing recordation, and “decree[ing] that upon the recording of such undertaking,

the property . . . shall forthwith stand released from the lien of Respondent King

Carpentry.”

King Carpentry subsequently filed a complaint in D.C. Superior Court,

alleging “Breach of Contract against ADI” and “Enforcement of Mechanic’s Lien

Against Undertaking against 1345 K St[reet SE], ADI, and GAIC.” ADI filed a

motion to dismiss the complaint 2 arguing that (1) the contract claim should be

dismissed because its contract with King Carpentry contained a forum selection

clause designating Fairfax County, Virginia as the exclusive forum to litigate

disputes and King Carpentry had filed his complaint in the District and (2) the

mechanic’s lien claim should be dismissed because King Carpentry had failed to

follow the requisite procedures of the Subcontractor’s Lien statute, specifically by

the Superior Court . . . adjudicating said lien to be valid and determining the

amount which the same would have been enforceable against the property

affected thereby, together with such costs and interest as may be awarded,

shall be fully satisfied . . . . (emphasis added).

2

After 1345 K Street SE obtained the undertaking with ADI, ADI appeared

to take the lead in litigating this matter in the trial court. Continuing in that role on

appeal, ADI filed an appellee’s brief that 1345 K Street SE joined in full.

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failing to file a notice of lis pendens with its complaint and by failing to notify other

lienors of the action. In opposition to the motion, King Carpentry argued that (1)

the forum selection clause was permissive and not mandatory, and (2) the procedures

that King Carpentry had allegedly failed to follow did not apply to suits such as King

Carpentry’s where the lien had been discharged prior to the initiation of a suit. The

trial court (Saddler, J.) granted ADI’s motion in a short order with only two

paragraphs of analysis that did not address King Carpentry’s arguments in any detail.

Following the trial court’s dismissal of King Carpentry’s complaint, King

Carpentry filed a second complaint, seeking a judgment against ADI and GAIC on

the amount of the bond issued by GAIC as security of any judgment against the

property. ADI and GAIC moved to dismiss on res judicata grounds, and the trial

court (Park, J.) granted the motion. King Carpentry timely appealed both orders.

II. Whether the Contract Claim was Properly Dismissed Pursuant to the

Forum Selection Clause in the Contract

The trial court dismissed King Carpentry’s breach of contract claim against

ADI on the ground that King Carpentry and ADI “specifically negotiated the . . .

forum selection clause.” This court has held that forum selection clauses are

permissible so long as (1) the existence of such a clause is reasonably communicated

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to the plaintiff and (2) enforcement would not be unreasonable. Forrest v. Verizon

Communications, Inc., 805 A.2d 1007, 1010–11 (D.C. 2002). King Carpentry has

not challenged the instant forum selection clause on either ground. Instead, it argues

that the forum selection clause in its contract with ADI merely permits litigation in

Fairfax County; it does not require litigation in that forum. The trial court rejected

this argument and ruled that the clause in the ADI-King Carpentry contract

expressed “a clear intention to litigate any breach or threatened breach of the subject

agreement in the Circuit Court for Fairfax County, Virginia.” We review the trial

court’s interpretation of the forum selection clause de novo. Parker v. K & L Gates,

LLP, 76 A.3d 859, 864–65 (D.C. 2013).

Absent a forum selection clause, a plaintiff is free to sue wherever they can

satisfy the requisite jurisdictional requirements. See Restatement (Second) of

Conflict of Laws § 80 cmt. a (Am. Law Inst. 1988). Thus, it is critical to determine

precisely what parties have contracted for when they agree to a forum selection

clause. In particular, courts reviewing such clauses must determine whether the

clause “authorizes another forum as an alternative to the forum of the litigation or

whether it makes the designated forum exclusive.” Albemarle Corp. v. AstraZeneca

UK Ltd., 628 F.3d 643, 650–51 (4th Cir. 2010) (emphasis in original); accord D&S

Consulting, Inc. v. Kingdom of Saudi Arabia, 961 F.3d 1209, 1213 (D.C. Cir. 2020)

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(acknowledging the distinction between a “mandatory” clause which “requires that

litigation proceed in a specific forum,” and a “permissive” clause which allows

“litigation to occur in a specified forum but does not bar litigation elsewhere”

(internal quotation marks omitted)). The dividing line between “mandatory” or

“exclusive” and “permissive” forum selection clauses is not a matter of formalism.

D&S Consulting, 961 F.3d at 1214 (“No magic words . . . are required to establish a

mandatory clause.”). Instead, we examine the text of the clause for its plain meaning

and read it in context of the full agreement. Jabbour v. Bassatne, 673 A.2d 201, 203

(D.C. 1996). In other words, “[w]hether a [forum selection] clause is mandatory or

permissive is a matter of basic contract interpretation.” D&S Consulting, 961 F.3d

at 1213.

With these principles in mind, we examine the three-sentence paragraph of

the ADI-King Carpentry contract containing a forum selection clause. The first

sentence is a choice of law provision. The second sentence is a mediation provision.

The third sentence is the forum selection clause. The paragraph reads in full:

This Contract shall be governed by the law of the Commonwealth of

Virginia. The parties agree that any claim arising out of or related to

this agreement and the Project that ADI Construction of Virginia, LLC

and Subcontractor are unable to resolve consensually shall first be

submitted to mediation, which mediation shall be conducted in Fairfax

County, Virginia, and such other place as the parties shall mutually

agree. The parties further agree that if the mediation is unsuccessful,

they hereby consent to personal jurisdiction and venue, for any action

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arising out of breach or threatened breach of this Agreement in the

Circuit Court in and for Fairfax County, Virginia.

The choice of law and mediation clauses appear to be mandatory: without

qualification, the parties state that Virginia law “shall” be used and that they “shall”

first try to resolve disputes via mediation. But the forum selection clause is written

differently. It does not say that any action “shall” be brought in Fairfax County,

Virginia. It states that the parties have “consent[ed] to” venue in Fairfax County. 3

Consent is an “agreement, approval, or permission.” Black’s Law Dictionary

(11th ed. 2019). Agreeing to one venue does not mean rejecting all others; “specific

language of exclusion” is required to give such an agreement that meaning.

IntraComm, Inc. v. Bajaj, 492 F.3d 285, 290 (4th Cir. 2007) (“A general maxim in

interpreting forum-selection clauses is that an agreement conferring jurisdiction in

one forum will not be interpreted as excluding jurisdiction elsewhere unless it

contains specific language of exclusion.” (internal quotation marks omitted)

(emphasis in original)). The forum selection clause of the ADI-King Carpentry

3

Because “standard choice of law provision[s] . . . [are] generally understood

to incorporate only substantive law, not procedural law,” we analyze the forum

selection clause under our law, notwithstanding the choice of law clause directing

reliance on Virginia law. Olivarius v. Stanley J. Sarnoff Endowment for

Cardiovascular Science, Inc., 858 A.2d 457, 463 (D.C. 2004) (internal quotation

marks omitted).

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contract contains no such language. For example, it does not say that the parties

agree venue is “only” or “sole[ly]” or “exclusive[ly]” in Fairfax County, Virginia.

See BAE Systems Technology Solution & Services, Inc. v. Republic of Korea's

Defense Acquisition Program Administration, 884 F.3d 463, 472 (4th Cir. 2018), as

amended (Mar. 27, 2018) (explaining that in the absence of exclusionary language

or context, a forum selection clause providing that disputes “shall

be resolved through litigation and the Seoul Central Court shall hold jurisdiction”

was permissive and not mandatory). Nor does it communicate by any other means

that the contracting parties agreed to Fairfax County being the exclusive venue. The

forum selection clause effectively provides that if either party files suit in Fairfax

County, the other party waives any objection it might otherwise have on personal

jurisdiction or venue grounds. But it does not bind either party to bring any suit in

Fairfax County.

Accordingly, we conclude that the forum selection clause in the ADI-King

Carpentry contract is permissive and that the Superior Court erred in concluding that

venue for any breach of contract action was limited to Fairfax County, Virginia.

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III. Whether Claim to “Enforce[] Mechanic’s Lien Against Undertaking” was

Properly Dismissed For Failure to Follow Procedural Requirements Set Forth

in the Subcontractor’s Lien Statute

The trial court dismissed King Carpentry’s claim to “Enforce Mechanic’s

Lien against Undertaking Against 1345 K St[reet SE], ADI, and GAIC” because

King Carpentry failed to fulfill a procedural requirement of the Subcontractor’s Lien

Statute. Specifically, the trial court determined that King Carpentry was required

pursuant to D.C. Code § 40-303.13 (a)(1)(B) to record a notice of lis pendens against

the property within ten days of filing suit and that its failure to do so compelled

dismissal of its claim. King Carpentry concedes it did not comply with D.C. Code

§ 40-303.13 (a)(1)(B). But it argues that it was under no obligation to do so—indeed

it could not—because after 1345 K Street SE and ADI filed an undertaking, there

was no basis for King Carpentry to record a lis pendens against the property. See

D.C. Code § 40-303.17 (allowing the filing of an “[u]ndertaking to discharge liens

before suit”). The interaction of the procedural requirements of D.C. Code § 40-

303.13(a)(1)(B) with D.C. Code § 40-303.17 presents a question of statutory

interpretation that we review de novo. See District of Columbia v. Place, 892 A.2d

1108, 1110–11 (D.C. 2006).

We have often observed that statutory interpretation is a “holistic endeavor.”

Office of the People’s Counsel v. Public Service Commission, 163 A.3d 735, 740

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(D.C. 2017) (internal quotation marks omitted). That is unquestionably true in this

case where, to understand how D.C. Code § 40-303.13(a)(1)(B) and D.C. Code §

40-303.17 interact, we must not only examine the particular text of these provisions,

but understand how they fit into the Subcontractor’s Lien Statute, D.C. Code § 40-

303.01 et seq., as a whole.

A “lien” is “[a] legal right or interest that a creditor has in another’s property,

lasting usu[ally] until a debt or duty that it secures is satisfied.” Black’s Law

Dictionary (11th ed. 2019). The Subcontractor’s Lien statute recognizes that

subcontractors who do work on real property but are not compensated pursuant to

the terms of their contract are creditors (just like contractors who are protected by

the Mechanic’s Lien statute, D.C. Code § 40-301.01 et seq.) and are entitled to a lien

to ensure they get paid. D.C. Code § 40-303.01. A subcontractor’s lien is statutorily

created upon filing a notice with the Recorder of Deeds of the District of Columbia

and serving the claim of the lien on the property owner. D.C. Code § 40-303.03.

Thereafter, a subcontractor may enforce the lien by filing suit in equity, D.C. Code

§ 40-303.08, and if the subcontractor prevails, the court shall order the sale of the

property and direct that the subcontractor be paid from the proceeds. D.C. Code §

40-303.09. But to pursue payment in this manner, the subcontractor must satisfy the

procedural requirements of D.C. Code § 40-303.13, namely, filing suit within 180

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days of recording its lien and recording, within 10 days of filing suit, a lis pendens,

i.e., a “notice of pendency of action in accordance with [D.C. Code] § 42-1207(b) 4

in the land records.” D.C. Code § 40-303.13.

Meanwhile, the property owner may take steps to unencumber the property.

If a suit is already pending, the owner may either pay into the court registry “the

amount claimed by the lienor, and such additional amount, to cover interest and

costs, as the court may direct,” or “[f]ile a written undertaking, with one or more

sureties, to be approved by the court, to the effect that . . . they will pay the judgment

that may be recovered, which may include interests and costs.” D.C. Code §

4

D.C. Code § 42-1207 is the lis pendens statute, which provides for notice to

the public of pending litigation related to real property and safeguards plaintiffs’

interest in that property. Heck v. Adamson, 941 A.2d 1028, 1029 & n.1 (D.C. 2008)

(“The legal effect of lis pendens . . . is that nothing relating to the subject matter of

the suit can be changed while it is pending and one acquiring an interest in the

property involved therein from a party thereto takes such interest subject to the

parties’ rights as finally determined, and is conclusively bound by the results of the

litigation.” (internal quotation marks and brackets omitted)).

In relevant part, subsection (a) of the statute provides that “[t]he pendency of

an action . . . affecting the title to . . . or asserting a . . . lien . . . in real property . . .

in the District . . . shall not affect a party not a party thereto, unless a notice of the

pendency of the action . . . is filed for recordation, as required by subsection (b) of

this section.” D.C. Code § 42-1207(a). Subsection (b) provides that a notice referred

to in Subsection (a) shall be effective only in certain types of actions—those that

“affect[] the title to . . . or assert[] a . . . lien . . . in real property . . . in the District”—

and only if it contains specified information and is in writing, properly signed, and

notarized. D.C. Code § 42-1207(b).

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40-303.16(a)(1)–(2). “On the payment of the money into court, or the approval of

the undertaking . . . , the property shall be released from the lien, and any money so

paid in shall be subject to the final decree of the court.” D.C. Code § 40-303.16(b).

Additionally, a property owner need not wait for the subcontractor to file suit

to unencumber the property. Pursuant to D.C. Code § 40-303.17, an owner may, as

1345 K Street SE (with ADI) did in this case, offer “an undertaking . . . before any

suit [is] brought in order to discharge the property from existing liens, in which case

notice shall be given as aforesaid to the parties whose liens it is sought to have

discharged.” Once the suit is filed, “the same proceedings shall be had as above

directed in relation to the undertaking to be given,” and “said undertaking shall be

to the effect that the owner and his said sureties will pay any judgment that may be

rendered in any suit that may thereafter be brought for the enforcement of said lien.”

D.C. Code § 40-303.17. Unlike a suit to enforce a lien, which requires the owner of

the property, the principal contractor, and all other lienors to be named parties, D.C.

Code § 40-303.08, a suit to recover against an undertaking requires only the property

owner to be named, D.C. Code § 40-303.18 (directing that if an undertaking is

approved before a suit is filed, “such suit shall be a suit in equity against the owner,

to which the sureties may be made parties”)—i.e., the person (or entity) who filed

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the undertaking and stands personally liable for any judgment, see D.C. Code § 40-

303.16; see also infra note 6.

With this context, we return to the text of D.C. Code § 40-303.13(a)(1)(B)—

“[a]ny person with a lien and who has recorded a valid notice of intent shall only

enforce the lien by . . . [r]ecording, within 10 days of filing suit, a notice of pendency

of action in accordance with § 42-1207(b) in the land records”—and consider if it

has any application to King Carpentry in this case. We conclude it does not.

First, King Carpentry, at the time it filed suit, was not a “person with a lien”

within the meaning of D.C. Code § 40-303.13(a)(1)(B). King Carpentry had no lien

because 1345 K Street SE, along with ADI, had filed a consent petition for approval

of an undertaking to serve as security, in lieu of the property, against any future

judgment, and the trial court approved the undertaking. See supra note 1. Once the

court granted their consent petition and released the property from the lien, King

Carpentry lost its status as a lienor.

Second, King Carpentry did not sue to “enforce the lien” it no longer

possessed. Instead, it sued for “enforcement of [a] mechanic’s lien against [the]

undertaking.” King Carpentry explained in its complaint that “[p]ursuant to the

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Consent Petition, which this Court granted, the Bond has been entered in the

Recorder of Deeds for King Carpentry’s Lien” and that “GAIC, as surety and issuer

of the Bond, and ADI and 1345 K St[reet SE], as principals under the Bond, are

subject to any final judgment in favor of King Carpentry.” As a legal matter, this

was entirely correct. Although King Carpentry no longer possessed a lien against

the property, it still had a right of recovery under the Subcontractor’s Lien statute,

which provides that the substitution of an undertaking for a lien does not defeat the

cause of action thereunder; it merely alters it from an in rem proceeding to an in

personam action against the owner and any sureties. See D.C. Code § 40-303.17

(allowing an owner to file an undertaking before any suit is brought); D.C. Code §

40-303.18 (“If such an undertaking be approved before any suit [is] brought, such

suit shall be a suit in equity against the owner, to which the sureties may be made

parties.”). 5

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This distinction is apparent in decisions that predate the enactment of the

Subcontractor’s Lien statute in 1901. Compare Lefler v. Forsberg, 1 App. D.C. 36,

41 (D.C. Cir. 1893) (“The proceeding to fix and enforce the lien is in its nature a

proceeding in rem.”), with Brown v. Waring, 1 App. D.C. 378, 380 (D.C. Cir. 1893)

(explaining that a plaintiff must still prove the “validity of [a discharged] lien . . . to

recover the personal judgment, for the payment of which the bond or undertaking

has been given and approved” (emphasis added)).

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There is language in D.C. Code § 40-303.17 directing that, if “an undertaking

as above mentioned” is offered before a suit is filed, the “same proceedings shall be

had as above directed in relation to the undertaking to be given after the

commencement of the suit.” The trial court read this language to refer back to D.C.

Code § 40.303.13 and thereby require compliance with D.C. Code § 40-

303.13(a)(1)(B). As a historical matter, it is certain that the drafters of D.C. Code §

40-303.17 (which retains its language from 1901) were not thinking of the lis

pendens provision, which was only added to the Subcontractor’s Lien statute in

2005. Compare Law of March 3, 1901, ch. 854, §1251, 31 Stat. 1387, and

Mechanics Lien Amendment Act of 2001, D.C. Council, Report on Bill 14-248 at

17 (Sept. 25, 2001), with Mechanic’s Lien Amendment Act of 2005, D.C. Council,

Report on Bill 16-105 at 14–15 (June 1, 2005). Furthermore, the plain language of

D.C. Code § 40-303.17 is unambiguous as to its point of reference. The

“undertaking as above directed” is the “written undertaking, with one or more

sureties, to be approved by the court” in D.C. Code § 40-303.16; likewise the “same

proceedings . . . as above directed in relation to the undertaking to be given after the

commencement of the suit” refers back to D.C. Code § 40-303.16, which discusses

17

the procedure for filing an undertaking and discharging a lien after a lawsuit has

been filed. 6

Third and finally, as a party without a lien on the property, King Carpentry

could not file a notice of lis pendens “in accordance with [D.C. Code] § 42-1207(b)

in the land records.” D.C. Code § 40-303.13. As set forth in D.C. Code § 42-1207,

such a notice is appropriate and effective only when a plaintiff brings “an action . . .

affect[ing] the title . . . or assert[ing] a . . . lien . . . in real property . . . in the District.”

See supra note 5.

For all these reasons, we conclude that King Carpentry, having filed its

complaint after ADI and 1345 K Street SE successfully discharged the lien on the

6

In their briefs, both King Carpentry and ADI address whether King

Carpentry failed to comply with the requirement under D.C. Code § 40-303.08 to

name as party defendants “all other persons who may have filed notices of liens,” or

whether that requirement is superseded by D.C. Code § 40-303.18 when an

undertaking is filed discharging the lien on the property. This issue was litigated in

Superior Court, but the trial court never ruled on it. It appears that the parties address

this issue to forestall or encourage affirmance on other grounds. For the reasons

discussed above, we conclude ADI’s argument that King Carpentry failed to name

the proper parties under D.C. Code § 40-303.08 is misguided: King Carpentry’s

action was not “a proceeding to enforce a lien,” and the “same proceeding” language

in D.C. Code § 40-303.17 does not refer back to the party naming requirements of

D.C. Code § 40-303.08.

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property, was not subject to the procedural requirement under D.C. Code § 40-

303.13(a)(1)(B) to file a lis pendens within ten days of filing suit.

IV. Conclusion

Based on the above analysis, we reverse the judgment in 19-CV-1162. We

also reverse the judgment in 20-CV-422. As noted above, the trial court relied on

the judgment in 19-CV-1162 to conclude that the complaint filed in 20-CV-422 was

barred by res judicata. But reversal of a judgment terminates its res judicata effect.

See Colvin v. Howard University, 257 A.3d 474, 484 n.10 (D.C. 2021) (quoting

Adams v. Jonathan Woodner Co., 475 A.2d 393, 397 (D.C. 1984)) (“A judgment

based upon issue preclusion or claim preclusion is no longer valid when the decision

upon which the court relied in applying either of the doctrines has been reversed.”

(brackets omitted)). We remand for further proceedings consistent with this opinion.

So ordered.