IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON KULEANA, LLC, a Washington limited liabilitycompany; and HAROLD E. JOHNSON, a single person, Appellants,

v. DIVERSIFIED WOOD RECYCLING, INC., a Washington business 

### corporation,* Respondent. No. 68962-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: July 22, 2013 •:. J C^3: O") o t^.3 '''"'. "'

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Becker, J. — This appeal is a sequel to this court's earlierdecisions 

### involving ajudgmententered inSpokane County SuperiorCourt on a lien foreclosure action. Diversified Wood Recycling. Inc. v. Johnson, 161 Wn. App. 859,251 P.3d 293. review denied. 172 Wn.2d 1025 (2011); Diversified Wood 

### Recycling. Inc. v. Johnson. 161 Wn. App. 891, 251 P.3d 908. review denied. 172 

### Wn.2d 1025 (2011). Appellants seekto avoid the judgments affirmed inthose two appeals. We affirm the trialcourt's decision to dismiss their complaint on grounds ofresjudicata and collateral estoppel. 

### The lien in question was claimed by Diversified Wood Recycling Inc. Diversifiedperformed brush clearing work. Diversified performed that work at the *On June 17, 2013, a notation orderwas entered granting First American Title Insurance Company's motion to substitute First American in place ofDiversified Wood Recycling Inc.No. 68962-2-1/2 request of a Harold Johnson. Diversified's invoices sent to a Harold Johnson
were never paid. Diversified recorded a claim of lien on the property where the work was performed, which according to title records was owned by Harold Johnson. Diversified then filed and served a foreclosure action naming Harold Johnson as defendant. Harold Johnson, Jr., answered the complaint. After a two-day trial, the court entered ajudgment offoreclosure against Harold Johnson, Jr. Afterjudgmentwas entered, Harold Johnson, Sr. and his solely-owned company, Kuleana LLC, brought a motion to intervene inthe foreclosure action for the purpose of moving to vacate it. Johnson Senior alleged 

### that he or his company were record owners ofthe property identified inthe claim of lien. He argued thatthe action was void because neither he nor his company 

### had beenjoined or served in the foreclosure action. The trialcourtdenied the motion to intervene. 

### Two separate appeals followed in which this court affirmed thejudgment offoreclosure and the order denying the motion to intervene. That both Harold Johnsons lost their respective appeals was due inlarge part to the confusion 

### they themselves generated by merging their identities for certain business purposes. "Because the two HaroldJohnsons effectively held themselves out as the same person without making itpossible for Diversified to distinguish between them atthe time ofrecording the lien and filing suit, the trial court legitimately 

### treated them as the same person for purposes ofdeciding whether Diversified 

### complied with statutory requirements." Diversified, 161 Wn. App. at 882. Other facts relevantto those two appeals are well known to the parties and areNo. 68962-2-1/3 

### discussed at length inthe two previous appeals. We will not repeatthem here except as necessary to resolve the present appeal. Johnson Senior and Kuleana broughtthe present action against 

### Diversified inSpokane County Superior Court inJanuary 2012 as a complaintfor declaratoryjudgment and to quiet title. They presented the same deeds that
were submitted as exhibits inthe foreclosure action. They alleged thatthe deeds 

### prove they have ownership interests in the property described in Diversified's lien. They asked the court to declare thatthey are the sole owners ofthe property described intheir deeds, that their interests inthat property are not affected by 

### the foreclosure because they were notjoined as parties, and that Diversified has 

### no claim againstthe cash supersedeas they deposited inthe lienforeclosure action. The trial court dismissed their complaint upon Diversified's motion for summaryjudgment. This appeal followed. 

### Summaryjudgment is reviewed de novo. Summaryjudgment is proper only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson v. Steinbach. 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). 

### Collateralestoppel, also knownas issue preclusion, bars relitigation of issues ofultimate fact that have been determined by a finaljudgment in actions 

### involving the same parties. State v. Williams, 132Wn.2d 248, 253-54, 937 P.2d 1052(1997). 

### The elements necessary for collateral estoppel are present here. Afinal 

### judgment on the merits, in an action involving the same parties, prevented appellants from intervening in the foreclosure action. Appellants nowseektoNo. 68962-2-1/4
establish their ownership ofproperty described intheir deeds as part of a quiet title action against Diversified. The ownership ofthe property covered by the lien
was at issue in the foreclosure action. See Diversified, 161 Wn. App. at 883-85. And itwas also an issue litigated in connection with appellants' motion to intervene. Their lack of coherent proofofthe property interests in question was

one ofthe reasons we affirmed the trial court's denial ofthe motion. We examined the inconsistent and poorly documented positions taken by appellants and said, "It is not clear exactly how much property they each claim to own or where such property is located in relationship to the property that was described in the claim of lien and that was foreclosed on by thejudgment." Diversified. 161 Wn. App. at 899. Appellants do not explain why they should be permitted to relitigate, against Diversified, the issue ofwhether property they own is included in Diversified's lien. 

### Itappears appellants are also attempting to relitigate whether Diversified properly maintained its claim of lien, so as to be entitled to be paid from the proceeds ofthe foreclosure sale. Thejudgment offoreclosure decrees that Diversified has a lien on certain described property. Itorders the sheriffto sell 

### the property at auction and, after applying the proceeds to the costs ofsale, to distribute the proceeds to Diversified for all amounts due underthejudgment, 

### including interest, attorney fees, and costs. Appellants do not expressly say that 

### by proving their ownership interests inthe present action, they intend to prevent the property they claim to own from being sold at auction to satisfy Diversified's lien. Butthey do not explain, and it is hard to imagine, what other practicalNo. 68962-2-1/5 objective they could hope to accomplish by means oftheir present action against Diversified. Collateral estoppel must not be applied to work an injustice. "The question is always whetherthe party to be estopped had a full and fair opportunity to litigate the issue." State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn. App. 299, 304, 57 P.3d 300 (2002). Johnson Senior had ample notice ofthe pending foreclosure action, and he knew itwas aimed at property in which he and his company claimed an interest. Diversified, 161 Wn. App. at 899-900. He 

### and his company had a full and fairopportunity inthe earlier action to show some impediment to selling the property at auction to satisfy Diversified's lien. "Ifan ownerwho has been served but notjoined does nothing, the property will be sold at auction to satisfy the lien." Diversified. 161 Wn. App. at 904. We conclude Johnson Senior and Kuleana are barred from relitigating whether Diversified is entitled to be paid from the proceeds of a foreclosure sale ofthe property identified inthe lien. The present action is also barred by resjudicata. Res judicata is claim 

### preclusion. Itbars relitigation of a claim already determined by a finaljudgment involving the same parties. Williams v. Leone &Keeble, Inc.. 171 Wn.2d 726, 730, 254 P.3d 818 (2011). To make ajudgment resjudicata in a subsequent action there must be a concurrence of identity infour respects: (1) of subject

### matter; (2) ofcause of action; (3) ofpersons and parties; and (4) in the quality of the persons for or against whom the claim is made. Seattle-First Nat'l Bank v. Kawachi. 91 Wn.2d 223, 225, 588 P.2d 725 (1978).No. 68962-2-1/6
Kuleana and Johnson Senior assert that their present action does not have identity ofsubject matter or cause of action with the lien foreclosure action. They say that the present action involves the priority ofthe respective interests of Diversified, Kuleana and Harold Johnson Sr., whereas the underlying action involved the validity and foreclosure ofthe lien againstthe property. 

### Resjudicata does not bar claims which arise out of a transaction separate and apartfrom the issue previously litigated. Kawachi, 91 Wn.2d at 227-28. But appellants fail to demonstrate that their present action is separate and apartfrom the underlying foreclosure action. Inthe present action, they want a declaration 

### thatthey have property interests which remain unaffected by the foreclosure. This is the same subject matterthey were litigatingwhen they sought to intervene in the foreclosure action. Inthe lien foreclosure action, Johnson Junior alleged that Johnson Senior and Kuleana were owners ofthe property. Johnson Junior argued that 

### Diversified's failure to join Johnson Senior and Kuleana as parties to the foreclosure action meantthat the action was void for lack of subject matter 

### jurisdiction. Johnson Senior supported that argument byasserting in a declaration and bytestimony at trial that he and Kuleana had interests in the 

### property. When this argument was unsuccessful attrial, Johnson Senior and Kuleana moved to intervene postjudgment. While we upheld the foreclosure 

### judgment and the denial of intervention, we did notdecide whether or not Johnson Senior and Kuleana were owners of any ofthe property included inthe 

### lien. That decision was not necessary to resolve the issue before us at the time,

6No. 68962-2-1/7 namely whetherthe trial court was barred from proceeding with the foreclosure action absentjoinder of the owner. We explained: The consequence of nonjoinder ofthe owner or any other person who has a prior recorded interest inthe property is not lack of jurisdiction. Nonjoinder ofthe owner does not mean the lien expires orthat the court lacks statutory authority to proceed. The consequence is thatthe interest of a person notjoined may not be foreclosed or otherwise affected. Diversified. 161 Wn. App. at 903. Appellants contend that intheir present action, they are merely trying to enforce the statement quoted above. In reality, their present action is an attempt 

### to litigatematters thatwere or could have been litigated when they moved to intervene in the foreclosure action. 

### First, in this actionjust as inthe attempted intervention inthe foreclosure 

### action, the subject matter is the ownership interests purportedly held by Kuleana and Johnson Senior. Second, the cause of action is the same because itarises out ofthe same transactional nucleus offacts involved in the foreclosure action, 

### presents substantially the same evidence, and is designed to impairDiversified's established right to be paid insatisfaction of the lien. See Hadlevv. Cowan, 60 Wn. App. 433, 441-42, 804 P.2d 1271 (1991). Third, the same parties are involved: Diversified on one side, Kuleana and Johnson Senior on the other. Fourth, Kuleana and Johnson Senior have the same quality as they did inthe 

### previous action, i.e., they are bound by the denial of their motion to intervene. See Martin v. Wilbert. 162Wn. App. 90, 97, 253 P.3d 108. review denied. 173 Wn.2d 1002 (2011).No. 68962-2-1/8
Where both lawsuits arise out ofthe same transactional nucleus offacts 

### and the other prerequisites for res judicata are present, res judicata bars "every pointwhich properly belonged to the subject oflitigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 

### Savward v. Thaver. 9 Wash. 22, 24, 36 P. 966 (1894). To the extent appellants argue their claim ofpriority ownership is differentfrom the claim of ownership they advanced in their motion to intervene, they are barred by resjudicata because that claim properly belonged to the prior litigation and should have been included in it. In summary, the trial court properly perceived the present action as an 

### attemptto relitigate matters already resolved by finaljudgment. Diversified requests attorney fees on appeal under RCW 60.04.181. Because the present action is not a lien foreclosure action, we deny this request. Affirmed. 

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WE CONCUR: 

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