Filed
Washington State
Court of Appeals
Division Two
July 14, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ELIZABETH M. PARMAN, No. 60735-2-II
Appellant,
v.
PUBLISHED OPINION
ESTATE OF RUTH MARIE PARMAN, and
SHAWN PARMAN, a single man,
Respondents.
VELJACIC, C.J. — In 2018, Elizabeth Parman filed an unjust enrichment action against
Shawn Parman, her ex-husband, and Ruth Parman, Shawn’s mother who is now deceased
(collectively, the Parmans).1 Elizabeth subsequently filed a notice of lis pendens. Prior to the first
appeal in this case, the Parmans moved to cancel the lis pendens two times; the trial court denied
both motions. On remand, the Parmans filed a third motion to cancel the lis pendens, which the
trial court granted.
Elizabeth now appeals the trial court’s cancellation of the lis pendens. Elizabeth raises two
arguments on appeal. First, Elizabeth argues that the law of the case doctrine precluded Shawn
from filing his third motion to cancel the lis pendens. Second, Elizabeth argues that the trial court
erred in cancelling her lis pendens and claims that an unjust enrichment action, along with a request
1
Because the parties share the same last name, we will refer to the parties by their first names when applicable. No disrespect is intended.
60735-2-II
for an equitable lien, that has a sufficient nexus to the property at issue is an action affecting title
to real property under RCW 4.28.320. Elizabeth requests attorney fees on appeal.
The Parmans respond that Elizabeth is prohibited from arguing that an equitable lien
securing an unjust enrichment claim is sufficient for a lis pendens under the law of the case
doctrine. And even if we were to address the merits of the argument, the Parmans maintain that
an unjust enrichment claim coupled with an equitable lien is not sufficient to obtain a lis pendens.
The Parmans request attorney fees on appeal.
We conclude that: (1) neither party was precluded from making their arguments under the
law of the case doctrine; (2) the trial court erred in cancelling the lis pendens. A claim for unjust
enrichment, that seeks an equitable lien where the plaintiff’s claim is based on their resources
being used to enhance the value of the real property at issue, is an action that affects title to real
property as required under RCW 4.28.320 and RCW 4.28.328(2); and (3) neither party is entitled
to attorney fees on appeal.
Accordingly, we reverse the trial court’s cancellation of the lis pendens. We decline to
award attorney fees to either party.
FACTS
I. BACKGROUND
The underlying facts of this case are addressed in our previous decision in Parman v.
Parman, No. 57860-3-II (Wash. Ct. App. Apr. 23, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2057860-3-II%20Unpublished%20Opinion.pdf
(hereinafter Parman I). We provide a brief summary for context.
Elizabeth purchased the property at issue (also known as the “Renata Lane property”) in
1997 for $117,000. Elizabeth and Shawn quitclaimed the Renata Lane property to Ruth and Robert
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Parman on March 29, 2000. Robert and Ruth did not pay any value for the property. Elizabeth,
Shawn, and their two children lived in the main portion of the house on the property while Robert
and Ruth lived in an in-law apartment.
Robert passed away in 2005, leaving the property to Ruth. Ruth assured Elizabeth that
Elizabeth and Shawn would inherit the property. Over the course of staying on the property,
Elizabeth spent an additional $143,000 on the property with the goal of developing a horse farm.
Elizabeth and Shawn got divorced in 2017. Afterward, Ruth revoked her will, leaving the
Renata Lane property solely to Shawn. “According to Ruth, she removed Elizabeth from her will
based on the way Elizabeth treated [her] and the rest of [the] family members.” Parman I, No.
57860-3-II, slip op. at 4 (internal quotation marks omitted) (alterations in the original).
Elizabeth commenced an action against the Parmans in 2018.2 Elizabeth raised several
causes of action, including unjust enrichment.3 Elizabeth alleged that the Parmans were unjustly
enriched by excluding Elizabeth from inheriting the property in light of her personal investments
and labor over the years. Elizabeth requested a “[j]udgment against [the Parmans] in the amount
of the value of all expenditures and contributions [she] ha[d] made in connection with” the Renata
Lane property. Clerk’s Papers (CP) at 9.
Elizabeth subsequently filed a notice of lis pendens in 2019.
2
Ruth passed away on June 10, 2019. Ruth’s estate was subsequently substituted as a party defendant in the case.
3
Specifically, Elizabeth included causes of action for joint venture/partnership, estoppel, negligent/intentional misrepresentation, and tortious interference with contract/business expectancy.
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II. THE FIRST TWO MOTIONS TO CANCEL THE LIS PENDENS
The Parmans first moved to cancel the lis pendens on September 21, 2020. The trial court
denied the motion, reasoning that “an equitable lien creates an opportunity or the right to a lis
pendens.” Rep. of Proc. (Oct. 9, 2020) at 28.
In September 2021, the Parmans moved for summary judgment. The trial court partially
granted the motion, dismissing Elizabeth’s claims for negligent/intentional misrepresentation,
joint venture/partnership, and unjust enrichment.
In March 2022, the Parmans moved for summary judgment to dismiss Elizabeth’s breach
of contract claim—the only remaining cause of action. The court granted the motion. Elizabeth
subsequently filed a notice of appeal regarding the orders granting summary judgment.
Following the trial court’s orders on summary judgment, the Parmans moved to cancel the
lis pendens for the second time. The trial court again denied the motion. The trial court explained
that because Elizabeth was appealing, the case was not “settled, discontinued, or abated” as
required under RCW 4.28.320.
III. THE FIRST APPEAL
Elizabeth appealed, in part, the trial court’s orders granting summary judgment and
quieting title in favor of the Parmans. The Parmans cross-appealed the trial court’s first order
denying the motion to cancel the lis pendens.
In an unpublished decision, we held, among other things, that summary judgment denying
Elizabeth’s unjust enrichment claim was improper and reversed on this basis.
While ruling only on the quiet title action, we held that the trial court did not err in quieting
title to the Parmans. Elizabeth argued that she had “an equitable interest in the Renata Lane
Property via her unjust enrichment claim, which create[ed] an equitable lien.” Parman I, No.
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57860-3-II, slip op. at 44. Elizabeth claimed that she had an “interest” in the property because of
the alleged equitable lien. Id. We disagreed, explaining that “[a] party to a quiet title action must
succeed on the strength of his or her own title.” Id. Since Elizabeth had no interest in the property,
there was no basis to quiet title in her favor.
Finally, we dismissed the Parmans’ cross-appeal regarding the lis pendens as untimely.
We explained that since the trial court’s order denying the Parmans’ motion to cancel the lis
pendens was filed in October 2020, the Parmans’ cross-appeal filed in October 2022 was well-past
the 30-day limit required under RAP 5.2(a).
Even though the Parmans did not challenge the second order denying their motion to cancel
the lis pendens, we commented:
[T]he record contains a second and more recent order denying a motion to cancel
lis pendens, dated November 18, 2022, that is not on appeal. After the appeal and
cross-appeal were filed in this case, the Parmans moved to cancel the lis pendens
again on the basis that the action was settled in light of the superior court’s summary
judgment ruling. At no point in their second motion to cancel the lis pendens do
the Parmans argue that the lis pendens was procedurally defective or impermissibly
interfered with the probate code, as they argue to this court.
. . . RCW 4.28.320 has three conditions that must be met for a court, in its
discretion, to cancel a lis pendens. Guest [v. Lange], 195 Wn. App. [330], . . . 336[,
381 P.3d 130 (2016)]. The Parmans do not address this standard in their crossappeal. Even if we reached the merits of this cross-appeal, the Parmans’ crossappeal would fail because the action was not settled, discontinued, or abated in
October 2020. RCW 4.28.320. Because our review is based on an abuse of
discretion standard, the superior court cannot be said to have abused its discretion
in denying the motion to cancel the lis pendens in October 2020.
Id. at 54 n.21.
IV. THE THIRD MOTION TO CANCEL THE LIS PENDENS
Following remand, the Parmans filed another motion to cancel the lis pendens. This time,
the trial court granted the motion. The court explained that Elizabeth’s unjust enrichment action
was “not an action affecting title to real property” under RCW 4.28.328. CP at 408.
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Elizabeth appeals.
ANALYSIS
I. LAW OF THE CASE DOCTRINE
Elizabeth argues that the law of the case doctrine precluded the Parmans from challenging
the lis pendens following remand from this court. The Parmans similarly argue that Elizabeth is
precluded from arguing that her unjust enrichment action, coupled with an equitable lien, can be
the basis for a lis pendens. We conclude that the law of the case doctrine does not preclude either
parties’ argument.
A. Law of the Case Doctrine
The law of the case doctrine is codified under RAP 2.5(c).4 “In its most common form,”
the doctrine “stands for the proposition that once there is an appellate holding enunciating a
principle of law, that holding will be followed in subsequent stages of the same litigation.”
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). The doctrine “‘forbids, among other
things, a lower court from relitigating issues that were decided by a higher court, whether explicitly
or by reasonable implication, at an earlier stage of the same case[].’” Lodis v. Corbis Holdings,
4
RAP 2.5(c) provides:
The following provisions apply if the same case is again before the appellate court
following a remand:
(1) Prior Trial Court Action. If a trial court decision is otherwise properly
before the appellate court, the appellate court may at the instance of a party review
and determine the propriety of a decision of the trial court even though a similar
decision was not disputed in an earlier review of the same case.
(2) Prior Appellate Court Decision. The appellate court may at the instance
of a party review the propriety of an earlier decision of the appellate court in the
same case and, where justice would best be served, decide the case on the basis of
the appellate court’s opinion of the law at the time of the later review.
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Inc., 192 Wn. App. 30, 56, 366 P.3d 1246 (2015) (internal quotation marks omitted) (alterations
in the original) (quoting San Juan v. Rullan, 318 F.3d 26, 29 (1st Cir. 2003)).
The doctrine “serves to ‘promote[ ] the finality and efficiency of the judicial process by
protecting against the agitation of settled issues.’” State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d
1104 (2003) (alteration in original) (internal quotation marks omitted) (quoting Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988)).
Critically, the doctrine applies to only appellate decisions. Worden v. Smith, 178 Wn. App.
309, 324, 314 P.3d 1125 (2013). “The doctrine ‘does not apply to identical issues raised repeatedly
before the trial court.’” Id. (quoting In re Estate of Jones, 170 Wn. App. 594, 605, 287 P.3d 610
(2012)).
B. The Parmans and the Lis Pendens
The Parmans were not precluded from litigating the lis pendens on remand because we did
not explicitly or by reasonable implication decide the issue previously. “Failure to cross-appeal
an issue generally precludes its review on appeal.” Amalgamated Transit Union Loc. 587 v. State,
142 Wn.2d 183, 202, 11 P.3d 762 (2000). In Parman I, we dismissed the Parmans’ cross-appeal
challenging the trial court’s first decision regarding their motion to cancel the lis pendens as
untimely under RAP 5.2(a). No. 57860-3-II, slip op. at 54. Anything else in the opinion appearing
to address the merits of the trial court’s decision is dicta. Sw. Suburban Sewer Dist. v. Fish, 17
Wn. App. 2d 833, 841 n.3, 488 P.3d 839 (2021) (Dicta is “‘an observation or remark made by a
judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of
law, or the solution of a question suggested by the case at bar, but not necessarily involved in the
case or essential to its determination.’”) (internal quotation marks omitted) (quoting State ex rel.
Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954))).
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As a result, the Parmans could properly challenge the lis pendens on remand since there
was no appellate decision on the issue. Worden, 178 Wn. App. at 324.
C. Elizabeth and the Equitable Lien
Elizabeth was not precluded from arguing that her unjust enrichment action, along with an
equitable lien, could be the basis for a lis pendens. In Parman I, Elizabeth argued that her unjust
enrichment claim created an equitable lien, which established an interest in the title to the property.
No. 57860-3-II, slip op. at 44. We disagreed and held that Elizabeth’s argument was unpersuasive
in the context of quieting title, meaning only that Elizabeth did not have any right to title. Id.
Accordingly, this court affirmed the trial court’s ruling quieting title to the Parmans. Id.
Critically, however, we did not address whether an equitable lien affects title to real
property, a different question than that presented to us in Parman I. Because of this, Elizabeth is
not precluded from arguing she has a basis for a lis pendens arising from her particular unjust
enrichment claim: one deriving from enrichment to the Parmans by virtue of improvements she
made to the real property on which the lis pendens would be filed against, for which she is seeking
an equitable lien if successful.
II. ELIZABETH’S LIS PENDENS
Elizabeth argues that the trial court erred in cancelling the lis pendens. Because Elizabeth
is pursuing an equitable lien for her unjust enrichment action, she claims that her action affects
title to real property under RCW 4.28.320, supporting a lis pendens. The Parmans argue that
Elizabeth’s unjust enrichment action, secured by an equitable lien, does not affect title to real
property under RCW 4.28.320. We agree with Elizabeth.
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A. Standard of Review
Generally, we review decisions to cancel a lis pendens for an abuse of discretion. Guest,
195 Wn. App. at 335. But we review a trial court’s legal determinations de novo, regardless of a
trial court making such determination in their discretionary authority. State v. Westwood, 10 Wn.
App. 2d 543, 550, 448 P.3d 771 (2019); Dix v. ICT Grp., Inc., 160 Wn.2d 826, 833-34, 161 P.3d
1016 (2007). Moreover, “[t]he meaning of a statute is a question of law reviewed de novo.” Dep’t
of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
Here, the trial court determined that Elizabeth’s unjust enrichment action was “not an
action affecting title to real property” under RCW 4.28.328. CP at 408. This was a legal
determination. See Guest, 195 Wn. App. at 335-337 (analyzing whether a filed supersedeas bond
meant that an action was “settled, discontinued, or abated,” thereby preventing a trial court to
cancel a lis pendens, under RCW 4.28.320).
Therefore, we review the trial court’s cancellation of the lis pendens de novo.
B. Unjust Enrichment and Equitable Liens
“In matters of equity, ‘trial courts have broad discretionary power to fashion equitable
remedies.’” Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172 (2006) (quoting SAC
Downtown Ltd. P’ship v. Kahn, 123 Wn.2d 197, 204, 867 P.2d 605 (1994)). But “it is a wellestablished rule that an equitable remedy is an extraordinary . . . form of relief.” Sorenson, 158
Wn.2d at 531. Because of this, “[a] court will grant equitable relief only when there is a showing
that a party is entitled to a remedy and the remedy at law is inadequate.” Id.
“Unjust enrichment is the method of recovery for the value of the benefit retained absent
any contractual relationship because notions of fairness and justice require it.” Young v. Young,
164 Wn.2d 477, 484, 191 P.3d 1258 (2008). To succeed in such an action, a plaintiff must
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establish: (1) “a benefit conferred upon the defendant by the plaintiff;” (2) “an appreciation or
knowledge by the defendant of the benefit; and” (3) “the acceptance or retention by the defendant
of the benefit under such circumstances as to make it inequitable for the defendant to retain the
benefit without the payment of its value.” Id. (internal quotation marks omitted) (quoting Bailie
Commc’ns, Ltd. v. Trend Bus. Sys., Inc., 61 Wn. App. 151, 159-60, 810 P.2d 12 (1991)).
Under § 56(1) of the Restatement (Third) of Restitution and Unjust Enrichment (A.L.I.
2011), when “a defendant is unjustly enriched by a transaction” that “the claimant’s assets or
services are applied to enhance or preserve the value of particular property to which the defendant
has legal title, . . . the claimant may be granted an equitable lien on the property in question.” More
specifically, a plaintiff alleging unjust enrichment may obtain an equitable lien on a property if
they “demonstrate a transactional nexus between the unjust enrichment that is the basis of liability
and the specific property in which the claimant asserts remedial rights.” Id. § 56 cmt. b. “The
transactional nexus between the recipient’s unjust enrichment and the property made subject to
lien is most often supplied . . . when claimant’s assets have been used to enhance or maintain the
value of the property in question.” Id. § 56 cmt. d.
An equitable lien “‘is the right to have property subjected in a court of equity to the
payment of a claim.’” Nelson v. Nelson Neal Lumber Co., 171 Wash. 55, 61, 17 P.2d 626 (1932)
(quoting Kukuk v. Martin, 331 Ill. 602, 163 N. E. 391, 392 (1928)). Equitable liens do “not exist
until it is imposed by a written judgment or decree of [a trial] court.” 19 ELIZABETH A. TURNER,
WASHINGTON PRACTICE: FAMILY & COMMUNITY PROPERTY LAW § 11:40, at 279 (2015).
When a party obtains an equitable lien, there is “no estate or property in the thing to which
[the equitable lien] attach[es]; they provide no basis for a possessory action . . . against the debtor.
. . . [T]he debtor retains both title and the right to possession until court action is taken to subject
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the security to payment of the debt it secures.” Monegan v. Pac. Nat. Bank of Wash., 16 Wn. App.
280, 287, 556 P.2d 226 (1976).
But “[a]n equitable lien has the ordinary characteristics of a lien for security.”
RESTATEMENT (THIRD) § 56 cmt. c. And when a “judgment is not satisfied, the claimant/lienholder
can obtain a judicial sale of the property subject to lien,” and the sale of “the proceeds [can be]
applied to the satisfaction of the defendant’s obligation to the claimant.” Id.
C. Lis Pendens
Under RCW 4.28.320, a party may file a lis pendens with the county auditor “[a]t any time
after an action affecting title to real property has been commenced.” (Emphasis added.) A “lis
pendens” is “[a] notice, recorded in the chain of title to real property . . . to warn all persons that
certain property is the subject matter of litigation, and that any interests acquired during the
pendency of the suit are subject to its outcome.” BLACK’S LAW DICTIONARY 1117 (11th ed. 2019).
This filing serves to (1) give constructive notice that “the property is in dispute and . . . the
record owner’s interest is in question” and (2) “‘freeze[] the status of the property in time,’
preventing a party to the underlying action from transferring their interest.” 134th St. Lofts, LLC
v. iCap Nw. Opportunity Fund, LLC, 15 Wn. App. 2d 549, 557, 479 P.3d 367 (2020) (quoting
Snohomish Reg'l Drug Task Force v. 414 Newberg Rd., 151 Wn. App. 743, 752, 214 P.3d 928
(2009)). A lis pendens has no impact on the parties’ substantive rights, but because it clouds title,
a lis pendens can interfere with a property owner’s efforts to sell land or otherwise transfer
ownership. See 134th St. Lofts, 15 Wn. App. 2d at 557-58; John Morgan Constr. Co. v. McDowell,
62 Wn. App. 79, 84, 813 P.2d 138 (1991).
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A court may, in its discretion, remove a lis pendens if three conditions are met: “(1) the
action must be settled, discontinued, or abated, (2) an aggrieved person must move to cancel the
lis pendens, and (3) the aggrieved person must show good cause and provide proper notice.”
Guest, 195 Wn. App. at 336; RCW 4.28.320. An action is settled, discontinued, or abated if there
has been a final disposition in the case. Guest, 195 Wn. App. at 337-38.
When a party files a lis pendens “in an action not affecting the title to real property,” they
are “liable to an aggrieved party who prevails on a motion to cancel the lis pendens.” RCW
4.28.328(2). “Washington courts have not established a specific guiding criteria to aid in
determining whether an action ‘affects title to real property’ under RCW 4.28.328(2).” 134th St.
Lofts, 15 Wn. App. 2d at 558.
D. Lis Pendens and Equitable Liens
Whether “an action seeking to establish and impress an equitable lien” for monetary
damages “affect[s] the title to real property” differs across jurisdictions. 51 AM. JUR. 2D Lis
Pendens § 38 (2021); RCW 4.28.328(2). Jurisdictions that restrict the use of a lis pendens in this
context do so because such actions, “even if [they] relate[ ] in some way to specific real property,
. . . [do] not directly affect title to or right of possession of real property.” 54 C.J.S. Lis Pendens
§ 11 (2020). Other jurisdictions, however, permit a lis pendens “based on an action to recover a
money judgment where a valid judgment has been secured and made a lien against the property.”
Id.
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1. Arizona Law
When interpreting our lis pendens statute, we have previously relied on Arizona law, which
has a similar lis pendens statute. 134th St. Lofts, 15 Wn. App. 2d at 558; Schwab v. City of Seattle,
64 Wn. App. 742, 748, 826 P.2d 1089 (1992). Arizona is an example of a jurisdiction that permits
a lis pendens “based on an action to recover a money judgment where a valid judgment has been
secured and made a lien against the property.” Compare 54 C.J.S. Lis Pendens § 11, with Santa
Fe Ridge Homeowners’ Ass’n v. Bartschi, 219 Ariz. 391, 396-98, 199 P.3d 646 (Ct. App. 2008).
In Tucson Estates, Inc. v. Superior Court, 151 Ariz. 600, 605, 729 P.2d 954 (Ct. App.
1986), the court articulated that “the purpose behind the doctrine of lis pendens is best served by
construing the statute to permit the filing of a notice of lis pendens in any action involving an
adjudication of rights incident to title to real property.” And in Coventry Homes, Inc. v. Scottscom
P’ship, 155 Ariz. 215, 218, 745 P.2d 962 (Ct. App. 1987), the court concluded that “an action to
impose an equitable lien on real property is an action affecting title to that property.” But the court
also explained that “[t]here must be some basis for concluding that an equitable lien or constructive
trust would be imposed on the real property subject to the notice of lis pendens.” Id.
The Arizona Court of Appeals later articulated that “a lawsuit affects a right incident to
title if any judgment would expand, restrict, or burden a property owner’s right as bestowed by
virtue of that title.” Bartschi, 219 Ariz. at 396. Bartschi affirmed that Coventry Homes did not
support “the notion that merely asking the court of imposition of a lien on real property compelled
a conclusion that the lawsuit affected title to real property.” Id. at 397.
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2. Washington Law
There is no modern authority in Washington evaluating whether an action seeking an
equitable lien to secure a debt for monetary damages can be the basis for a lis pendens. Elizabeth
relies extensively on our Supreme Court’s decision in Morton v. Le Blank, 125 Wash. 191, 215 P.
528 (1923), for such a proposition.
Morton concerned a dispute over whether a purchaser of land was bound by the outcome
of earlier litigation involving that same property. 125 Wash. at 191-92. Le Blank sold a 30-acre
tract to Eller under an agreement that contemplated a future $2,000 mortgage in the event that Eller
did not make payments on the existing mortgage on the property. Id. at 192-93. When Eller did
not perform, Le Blank sued and filed a lis pendens, seeking either execution of the mortgage or a
judgment declaring a $2,000 lien on the land. Id. at 193. While that action was pending, Eller
conveyed the property to Morton, who had constructive notice of the suit through the lis pendens.
Id. Shortly after Eller’s conveyance to Morton, the trial court awarded Le Blank a judgment
against Eller in “the sum of $2,000, which” was secured by an equitable lien on the land at issue.
Id. at 194.
The original judgment was reversed on appeal. Id. at 194-95. On remand, Le Blank
amended his complaint seeking only a lien on the property, not an execution of the mortgage. Id.
To be clear, Le Blank never had a mortgage that granted him an interest in the property; there was
only a contract between Le Blank and Eller. Id. The trial court issued the lien. Id. at 195.
Morton filed a separate action seeking to quiet title to the property. Id. at 195. The trial
court quieted title in favor of Morton, and Le Blank appealed. Id. at 195-96. On appeal, our
Supreme Court addressed whether Morton took “title to the land in question subject to the final
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judgment rendered in the case of Le Blank against Eller, because of the original filing of the lis
pendens.” Id. at 196.
Our Supreme Court concluded that the lis pendens remained effective against Morton. Id.
at 197-99. The court reasoned that Morton was subject to the lis pendens because Le Blank’s
action affected title to real property under RCW 4.28.320. Id. at 196. The court explained that Le
Blank’s action, from its inception, sought to enforce the “execution of a $2,000 mortgage upon the
land of Eller to Le Blank,” or, “in the alternative, the direct foreclosure . . . [of a] equitable lien
upon the land for $2,000 as against Eller.” Id. at 196-97. Consequently, Le Blank’s equitable lien
did not “destroy the effect of the filing of the notice of lis pendens.” Id. at 199.
Following Morton, courts in Washington have concluded that “the purpose of the lis
pendens statute is best served by a broad interpretation of its language.” Schwab v. City of Seattle,
64 Wn. App. 742, 750, 826 P.2d 1089 (1992).
3. Elizabeth’s Appeal
Here, the trial court erred in cancelling the lis pendens.
All relevant authority supports the validity of a lis pendens in this case. Under § 56 of the
Restatement (Third), Elizabeth could properly pursue an equitable lien because her unjust
enrichment claim focused on assets that she expended to develop the Renata Lane property. This
is so because her personal investments into the Renata Lane property established a transactional
nexus between “the basis of liability and the specific property.” Id. § 56 cmt. b.
Elizabeth’s situation matches that of the illustrations provided in the Restatement:
Mother and Stepfather (who reside in New York) invite Son to live in their Florida
condominium, promising that he will either inherit it or be allowed to purchase it
on favorable terms, as estate-planning considerations might dictate. Son moves to
Florida and lives in the condominium for five years. During this time Son pays
taxes, current maintenance expense, and condominium fees; he also pays for
improvements and necessary repairs. Mother and Stepfather thereafter repudiate
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their promise to Son, announcing their intention to sell the condominium to an
unrelated purchaser. The promise to Son is unenforceable under the Statute of
Frauds. On suit by Son against Mother and Stepfather, the court finds no unjust
enrichment from Son’s payment of taxes, maintenance, and fees, because these
items may be viewed as the equivalent of rent. On the other hand, Son has a claim
in unjust enrichment (§ 27) for the value added by the repairs and improvements,
determined by the court to be $50,000. The court may subject the condominium to
an equitable lien in favor of Son, securing defendants’ liability in the amount of
$50,000.
Id. § 56 cmt. d, Ill. 8.
Additionally, under Arizona law, an equitable lien can support a lis pendens if there is a
basis for a lien to be imposed on the property at issue. Coventry Homes, 155 Ariz. at 218; Bartschi,
219 Ariz. at 396. The Parmans make no effort to argue against the applicability of either Coventry
Homes or Bartschi.5
Furthermore, notwithstanding that Morton has slightly different facts, it supports the
validity of a lis pendens in this case. Le Blank ultimately sought relief in the form of an equitable
lien; he was not pursing an action that would have given him an interest in the property. 125 Wash.
at 193. Nevertheless, our Supreme Court upheld the enforceability of the lis pendens, meaning
that it was an action that affected title to real property for the purposes of RCW 4.28.320. Id. at
196-99.
5
The Parmans cite to Bartschi for the proposition that a “lis pendens cannot be used as a tool to obtain leverage in cases that do not truly affect title.” Br. of Resp’t at 17. But Bartschi reaffirmed Coventry Homes’s holding that an equitable lien can be the basis for a lis pendens, so long as there is a basis “to conclude that a lien would be imposed on the property subject to the lis pendens.” Bartschi, 219 Ariz. at 397. As previously explained, here, there is a basis to conclude that an equitable lien would be imposed on the property because of Elizabeth’s investments into the Renata Lane property. Because of this, Bartschi is also factually dissimilar because the plaintiffs in that case, a homeowners’ association, had no basis to impose a lien on the defendant’s property. Id. at 397-98.
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On these facts an equitable lien affects title to real property when looking at practical
consequences of such a lien being imposed on the Renata Lane property. Assuming Elizabeth
obtained a judgment for unjust enrichment and the trial court imposed an equitable lien on the
property, Elizabeth would have the right to force a judicial sale of the property in the event that
the Parmans failed to satisfy the debt. RESTATEMENT (THIRD) § 56 cmt. c. As such, Elizabeth’s
unjust enrichment action would certainly “involve[e] an adjudication of rights incident to title to
real property” because it would affect the Parmans ownership of the Renata Lane property.
Schwab, 64 Wn. App. at 748.
The Parmans claim that permitting Elizabeth to impose a lis pendens on the property would
“circumvent Washington’s prejudgment attachment statute.” Br. of Resp’t at 16; RCW 6.25.080.
While a lis pendens can have several negative impacts on an individual’s ownership of a property,
its purpose is to give notice about what might happen after trial. 134th St. Lofts, 15 Wn. App. 2d
at 557-58. And on these facts, Elizabeth was eligible to file a lis pendens.6, 7
6
The Parmans also allege that allowing Elizabeth to file a lis pendens would permit “any plaintiff alleging unjust enrichment based on improvements to another’s land [to] automatically cloud title and sidestep the [prejudgment] attachment statute’s safeguards.” Br. of Resp’t at 17. As we have previously held, “the purpose of the lis pendens statute is best served by a broad interpretation of its language.” Schwab, 64 Wn. App. at 750. Our decision satisfies that purpose, but we do not opine on other scenarios outside this case. On these facts, Elizabeth’s unjust enrichment claim and request for an equitable lien, based on years of investment and labor into the property at issue, was sufficient to be the basis of a lis pendens.
7
Even though an equitable lien has not been issued in this case, the unjust enrichment action that is seeking an equitable lien, which derives from the property, is an action affecting title to real property. Consequently, Elizabeth could properly file a lis pendens prior to receiving a judgment for unjust enrichment or receiving an equitable lien on the Renata Lane property.
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Therefore, we conclude that the trial court erred in cancelling the lis pendens. An unjust
enrichment claim that has a sufficient transactional nexus to a property may qualify for an equitable
lien which can support a lis pendens.8
III. ATTORNEY FEES ON APPEAL
A. Elizabeth’s Request
Elizabeth requests attorney fees pursuant to RAP 18.1(a) and RCW 11.96A.150.
Under RAP 18.1(a), a court may award attorney fees on appeal “[i]f applicable law grants
to a party the right to recover,” and they dedicate a section of their brief to the request. Under
RCW 11.96A.150(1), a court, in its discretion, may award attorney fees “to any party to the
proceedings . . . from the assets of the estate or trust involved in the proceedings . . . or from any
nonprobate asset that is subject to the proceedings.”
Given the procedural posture of the case, we decline to award attorney fees on appeal.
B. The Parmans’ Request
The Parmans also request attorney fees on appeal.
RCW 4.28.328(2) and (3) both provide avenues for recovering damages and attorney fees
when a lis pendens is wrongfully filed. But “where the claimants have a reasonable, good faith
basis in fact or law for believing they have an interest in the property, a lis pendens is substantially
justified.” S. Kitsap Fam. Worship Ctr. v. Weir, 135 Wn. App. 900, 912, 146 P.3d 935 (2006).
Here, consistent with our conclusion above, Elizabeth had a substantial justification for
filing the lis pendens because her unjust enrichment action affects title to real property.
Consequently, the Parmans are not entitled to attorney fees under RCW 4.28.328(2) and (3).
8
Because we conclude that the trial court erred in cancelling the lis pendens, we do not need to separately address whether the trial court abused its discretion in cancelling the lis pendens because the action was not “discontinued, settled, or abated” under RCW 4.28.320.
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CONCLUSION
Accordingly, we reverse the trial court’s cancellation of the lis pendens and remand for
proceedings consistent with this opinion.
Veljacic, C.J.
We concur:
Maxa, J.
Che, J.
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