West v. Bacon
| Decision Date | 19 December 2017 |
| Docket Number | No. 49207-5-II,49207-5-II |
| Court | Washington Court of Appeals |
| Parties | ARTHUR WEST, Appellant, v. CONNIE BACON, CLARE PETRICH, DON JOHNSON, TED BOTTIGER, TIM FARRELL, RICHARD MARZANO, MARK LINDQUIST, PIERCE COUNTY PROSECUTING ATTORNEY; PORT OF TACOMA, Respondent. |
LEE, J. — Arthur West appeals the superior court's dismissal of his October 2009 lawsuit against the Port of Tacoma for alleged Public Records Act (PRA) violations from an August 2009 PRA request. The superior court dismissed the suit pursuant to our holding in Hobbs v. State, 183 Wn. App. 925, 335 P.3d 1004 (2014). West argues that the superior court erred in (1) dismissing his suit against the Port of Tacoma, (2) vacating its order granting West's motion for a show cause order and allowing amendment of his complaint, and (3) changing the venue to Grays Harbor County Superior Court.
We hold that the superior court did not err in dismissing West's suit because West filed his suit prematurely pursuant to Hobbs. We also hold that West's other claims fail and that the Port is entitled to an award of fees and costs on appeal. Accordingly, we affirm.
On August 14, 2009, West filed a public records request with the Port seeking:
Resp't Clerk's Papers (CP) at 36.
On August 19, the Port responded to West's request and advised him that because of ." Resp't CP at 36.
On September 3, "the Port extended its estimated response date to on or before September 25, 2009." Resp't CP at 36. Before that deadline, the Port revised its estimate to October 6, 2009.
On October 6, the Port updated its response date to October 14, 2009. Also on October 6, West filed suit against the Port alleging a violation of the PRA. West included in his suit a cause of action alleged in a different suit he filed against the Port for violating the PRA. On October 14,the Port sent a letter to West detailing its response to each of his requests and a privilege log for records it deemed exempt.1
On November 2, the Pierce County Superior Court judge assigned to the case recused herself. On January 27, 2010, the Pierce County Superior Court Administrator assigned the case to a visiting judge from Grays Harbor County Superior Court (hereinafter superior court).
On May 8, West sent an e-mail to the Port advising that he intended to note a hearing for May 10 on his motion for a show cause order and for leave to amend his complaint. The motion requested that the Port appear and show cause why it should not be found in violation of the PRA. West was aware that the Port's counsel was unavailable from May 4 to May 17.
On May 10, the Port filed a response objecting to a hearing on that day because the motion was not properly noted or confirmed. The Port also submitted a response brief opposing West's motion for a show cause order.
That same day, unaware that the Port had filed a response, the superior court held a hearing on West's motion to show cause. The Port did not attend the hearing and West did not advise the superior court of the Port's unavailability or response. On May 18, the superior court entered an order granting West's motion for a show cause order and allowing West leave to amend his complaint.
On May 21, the Port received notice about the superior court's order entered on May 18. The Port then filed a timely motion to reconsider and vacate the order. The Port also filed a motion to dismiss. West did not file any responsive pleadings to the Port's motions.
On June 18, the superior court held a hearing on the Port's motion to reconsider the show cause order entered on May 18. The superior court vacated the order to show cause and allow West to amend his complaint because West did not properly note or confirm his motion for the hearing for May 10,2 knew but did not alert the court that the Port was unavailable on May 10, and the documents in the file were not file stamped until two days before the hearing.
On July 26, the superior court held a hearing on presentation of the order vacating the May 18 show cause order and on the Port's motion to dismiss. The Port argued that a portion of West's complaint was duplicative of another claim in a different public records lawsuit by West against the Port that was being litigated in the Pierce County Superior Court. West agreed that the first part of his complaint was duplicative and that the records sought in the other suit had largely been disclosed.
The superior court dismissed the first part of West's complaint. The superior court also imposed sanctions on West of $1,500, to be paid to the Port, for causing the Port to respond to the same litigation for a second time.
West interrupted the superior court during its ruling and continued to do so after being warned by the court. As a result, the superior court found West in contempt of court. The superior court then set a date for the parties to present an order in conformance with its rulings.
On August 2, the superior court held a hearing on the presentation of orders dismissing the first part of West's complaint, imposing sanctions on West, and finding West in contempt of court. West did not appear or respond. The superior court signed only the order of contempt, and set over the date for presentment of an order dismissing the first part of West's complaint and imposing sanctions to August 9. West did not appear at that hearing, and the superior court signed an order dismissing the first part of West's complaint, imposing $1,500 in sanctions payable to the Port, and conditioning further action by West in the case on payment of those sanctions.
From August 2010 to April 2012, West took no further action in this case. On April 16, 2012, West sent his sanctions payment to the Port.
On May 30, West filed a motion for a trial date and a new case scheduling order. Two days later, the Port filed a motion to dismiss.
On June 12, the superior court held a hearing on the Port's motion to dismiss for failure to prosecute and abuse of process. The superior court, relying on CR 41(b) and its inherent authority to dismiss, granted the Port's motion to dismiss because West disregarded the contempt order from the court and West's conduct had "substantially interfered with the efficient administration of justice." Verbatim Report of Proceedings (VRP) (June 12, 2012) at 43.
West appealed the dismissal, challenging the superior court's authority to dismiss based on CR 41(b)(1). On April 28, 2014, Division One of this court reversed and ordered that the merits of West's claim be remanded for trial.
On February 5, 2016, the Port filed a motion to dismiss based on CR 12(b) and CR 56. The Port argued that West "prematurely filed his public records lawsuit prior to the Port completing its final agency response action" and that under Hobbs,3 West failed to state a claim upon which relief could be granted. Appellant CP at 573. West responded by arguing that because the appellate court ordered that the merits of his claim be remanded for trial, stare decisis applied, and the Port's motion was barred. West also argued that Hobbs did not apply and that the Port's motion was also barred by res judicata and collateral estoppel.
On April 1, the superior court held a hearing on the Port's motion to dismiss. The superior court found that Hobbs applied, that the PRA did not require an agency to comply with its own self-imposed deadlines as long as it was diligently responding to the request, and that no evidence was presented to show the Port was not diligent in responding to West's request. The superior court granted the Port's motion to dismiss.4
West appeals.
West argues that the superior court erred when it dismissed his suit against the Port of Tacoma on May 16, 2016. We disagree.
We review PRA cases de novo. Nissen v. Pierce County, 183 Wn.2d 863, 872, 357 P.3d 45 (2015). We also review dismissals under CR 12(b)(6) de novo. Worthington v. Westnet, 182Wn.2d 500, 506, 341 P.3d 995 (2015). Dismissals under CR 12(b)(6) are proper "only where there is not only an absence of facts set out in the complaint to support a claim of relief, but there is no hypothetical set of facts that could conceivably be raised by the complaint to support a legally sufficient claim." Id. at 505.
If a party brings a motion to dismiss under CR 12(b)(6), but "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [CR] 56." CR 12(b). Affidavits submitted in a CR 12(b)(6) motion are "matters outside the pleadings" that convert the CR 12(b)(6) motion into a CR 56 summary judgment motion. Lobak Partitions, Inc. v. Atlas Constr. Co., 50 Wn. App. 493, 503, 749 P.2d 716, review denied, 110 Wn.2d 1025 (1988).
We review a superior court's decision on summary judgment de novo. Didlake v. State, 186 Wn. App. 417, 422, ...
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