Washington’s construction lien statute makes clear that all lien foreclosure actions arising out of the same project should be joined into a single lawsuit. Filing a motion to intervene in a pending foreclosure lawsuit will also stay the normal eight-month deadline for filing a lien foreclosure lawsuit—at least until the motion is finally decided. The lien statute further says that the trial court should allow such intervention unless doing so would cause undue delay or incurable hardship to other parties.
What Happens When a Motion to Intervene Is Denied?
In a recent case, one of our clients faced just that scenario. Our client sought to appeal as a matter of right after the trial court wrongfully denied its motion to intervene in a pending lien foreclosure lawsuit. A commissioner in Division I of the Washington State Court of Appeals rejected the appeal. The commissioner reasoned that the trial court’s denial of our client’s motion to intervene in the underlying lien foreclosure lawsuit was not a final judgment or a decision terminating the action, so our client had no automatic right to appeal. While the commissioner allowed further briefing on whether our client might nonetheless be entitled to interlocutory discretionary review, such review is seldom granted.
The Right to Appeal a Denial of Intervention in Washington
Although federal courts have consistently recognized an automatic right to appeal from denial of a motion to intervene, Washington law on this issue is surprisingly muddled. Nonetheless, we moved to modify the commissioner’s ruling.
This week a panel of three judges from the Washington Court of Appeals overruled the commissioner and confirmed that our client does have an automatic and absolute right to appeal the trial court’s decision denying intervention. While that does not mean the battle is won, it does give our client a firmer platform for presenting its arguments.
Why This Decision Matters for Contractors and Lien Claimants
The Court of Appeals’ (unpublished) order in BNBuilders Inc. v. 1015 Second Avenue Seattle, LLC et al (Court of Appeals Case No. 87465-9-I) will now provide some guidance and authority for other contractors or lien claimants who find themselves in a similar situation.
If you have questions about lien foreclosure actions or your rights to appeal, our construction and appellate teams are here to help. Contact us to discuss your options.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
