Wash. Court of Appeals published opinion — D2 59088-3-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 59088-3-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2059088-3-II%20Published%20Opinion.pdf ↗

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This is a risk LGI could have minimized through a security interest in the form of a deed of
trust on the Phase 2 property.

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 59088-3-II

nothing in the statute regarding “expenses” arising from a receiver’s rejection of an executory

contract—only that a rejection constitutes a breach of contract. Where the legislature has used

certain statutory language in one instance, but not in another, evidences a different legislative

intent. King County Water Dist. No. 20, 194 Wn.2d at 855. Therefore, while the Receiver has an

obligation to LGI that arose from its rejection of the PSA, that obligation derives from principles

of contract law and is specific the PSA’s contractual terms—it is not a statutory “expense” under

the receivership statute. Thus, LGI’s claim remains an unsecured claim that falls lower in priority

than CLS’s secured claim.

Because LGI’s claim is not an “expense” of the receivership estate and because the claim

amounts to an unsecured claim, the superior court erred when it concluded that “[p]rior to any

distributions of Estate property, the Receiver shall refund LGI’s $450,000 Phase 2 earnest money

deposit to LGI.” CP at 740. Accordingly, we reverse the superior court and hold that LGI is not

entitled to a distribution in advance of CLS’s claim.

ATTORNEY FEES ON APPEAL

CLS requests an award of attorney fees on appeal pursuant to RAP 18.1, RCW 4.84.185,

and the CLS Deed. LGI argues that neither party is entitled to attorney fees on appeal and that

CLS’s claim for attorney fees is unsupported by any legal authority.

RAP 18.1(a) provides that a party may request reasonable attorney fees or expenses so long