Arthur West v. Port Of Olympia ( 2014 )


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  •                                                                                                FILED
    COURT OF APPEALS
    DIVISION I1
    2014 AUG - 5 / j 7
    A; :
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON
    DIVISION II                       Y,
    PI Th
    ARTHUR WEST and JERRY L. DIERKER                                                     No. 43876 -3 - II
    JR.,
    Appellants,
    v.
    PORT      OF      OLYMPIA;        WEYERHAEUSER                                UNPUBLISHED OPINION
    CO. d /b /a     WEYCO,; EDWARD GALLIGAN;
    BILL       MCGREGGOR,              ROBERT                 VAN
    SCHOORL, and PAUL TELFORD,
    Respondents,
    MELNICK, J. —       Arthur West and Jerry Dierker appeal several court orders culminating in
    1
    the dismissal      of   their Public Records Act ( PRA)               and State Environmental Policy Act ( SEPA)2
    claims.        West filed a public records request with the Port of Olympia ( Port) under the PRA,
    seeking    records related     to the Port'    s   lease   with   Weyerhaeuser.      Unsatisfied with the records the
    Port produced, West filed an action in superior court against the Port and Weyerhaeuser alleging,
    among      other   things,   violations   of       the PRA      and   the   SEPA.      West later filed an amended
    complaint       that included   Jerry   Dierker      as    an additional plaintiff.    The trial court bifurcated the
    PRA claims from the SEPA claims, dismissed the SEPA claims for lack of standing, and
    dismissed the PRA          claims against     Weyerhaeuser because it is            not a public   entity.      After over a
    year of inaction, West attempted to file a show cause hearing on the remaining PRA claims. The
    Port filed       a motion    to dismiss the PRA             claims    under   CR 41( b)( 1)   and the court' s inherent
    1 Ch. 42. 56 RCW.
    2
    Ch. 43. 21C RCW.
    43876- 3- 11
    authority.      The trial court dismissed the PRA claims after concluding that West and Dierker
    deliberately and willfully caused excessive delays.
    West     and   Dierker        appeal,    arguing the trial        court     erred when   it ( 1)   dismissed the PRA
    claims for      excessive       delay, ( 2) entered and construed the bifurcation order, and ( 3) dismissed the
    SEPA      claims   for lack      of   standing. West       and   the Port      seek   attorney fees   on appeal.   We hold that
    the trial court abused its discretion in dismissing the PRA claims because its conclusion that
    West    and   Dierker     acted       willfully is   not supported        by   its findings. We additionally hold that, ( 1)
    Dierker does       not   have standing to            enforce   the PRA         claims, (   2) West and Dierker waived their
    arguments       regarding       the bifurcation       order, (   3) the trial court properly concluded that West and
    Dierker lacked standing for their SEPA claims, and ( 4) none of the parties is entitled to attorney
    fees.   Accordingly, we affirm the trial court' s bifurcation order and order dismissing the SEPA
    claims, but reverse the order of dismissal of the PRA claims and remand for further proceedings
    on this claim.
    FACTS
    On March 17, 2007, West filed a public records request with the Port, seeking records
    related    to the Port'     s    lease   with   Weyerhaeuser.             On June 12, 2007, the Port sent West a letter
    listing   the   records    it    provided and        the   records   it   considered exempt.          The letter stated that the
    Port considered the request completed.
    On June 18, 2007, West filed a complaint against the Port and Weyerhaeuser for alleged
    violations of      the PRA, SEPA,            and     the Harbor Improvement Act.              That same day, he obtained an
    ex parte show cause order compelling the Port to appear on June 29 and show cause why it
    should not be required to release the exempt records. This hearing never occurred. West filed an
    amended complaint in July 2007 that included Dierker as a plaintiff.
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    43876 -3 -II
    In August 2007, Weyerhaeuser moved to bifurcate the PRA claims from the rest of
    West'   s and   Dierker'     s claims.       West agreed, and the trial court granted the motion.. Over the next
    few months, all the parties filed multiple motions, mostly regarding the non -
    PRA claims.
    On April 25, 2008, the trial court entered an order dismissing the case with prejudice for
    lack of standing. Later, the trial court issued a clarifying order stating that the April 25 dismissal
    referred     only to the         PRA claims and
    non -                        that the PRA            claims were not .dismissed.      On May 2„
    the trial court dismissed the PRA claim against Weyerhaeuser.
    West and Dierker did not take any action regarding this case until October 16, 2009,
    when    West     attempted      to    note   the PRA case       for   a show cause           hearing. Between October 2009
    and June 2011, West attempted to set eight show cause hearings. Because of the Port' s counsel' s
    or the Judge' s unavailability or because of West' s failure to confirm the hearings, no hearing
    took place.
    On June 24, 2011, the Port filed              a motion          to dismiss   under    both CR 41( b)( 1),   failure to
    prosecute,      and   the    court' s   inherent    power      to   manage       a case.     West filed his fifth affidavit of
    prejudice in this case, which resulted in a delay.
    On June 29, 2012, the trial court held a hearing on the Port' s motion to dismiss. The trial
    court   granted       the    motion     to dismiss, relying           on    its inherent authority to      manage      cases.   It
    concluded       that ( 1) West       and   Dierker " deliberately          and   willfully   caused excessive   delays," ( 2) the
    delays prejudiced the Port because, if it was found to have violated the PRA, it would be subject
    to   daily   penalties, and (    3)   no   lesser   sanction   than dismissal        would suffice.     Clerk' s Papers ( CP) at
    938.     West     and       Dierker both filed        motions       for    reconsideration.       The 'trial court denied the
    motions.
    43876 -3 - II
    West     and   Dierker    appeal,    challenging the trial          court' s (   1)    June 27, 2012 dismissal, ( 2)
    order denying reconsideration of the June 27 dismissal, and ( 3) May 30, 2008 dismissal of the
    non -PRA claims for lack of standing.
    ANALYSIS
    I.       PRA CLAIMS
    West and Dierker first argue that the trial court erred when it dismissed their PRA claims
    for   excessive   delay.     Because the trial court' s dismissal was based on untenable reasons, we
    reverse.   We also hold that ( 1) Dierker does not have standing to enforce the PRA claims and ( 2)
    we do not reach the merits of West' s PRA claims because the trial court did not rule on this
    issue.
    A.        Dierker' s Standing for PRA Claims
    As an initial matter, the Port argues that Dierker lacks standing to enforce the PRA
    request.    Because Dierker did not join in the PRA request, he has failed to show that he has a
    personal stake in the outcome; thus, he lacks standing to enforce West' s PRA request.
    The doctrine of standing requires that a claimant must have a personal stake in the
    outcome of a case       in   order   to   bring   suit."   Kleven v. City. ofDes Moines, 
    111 Wash. App. 284
    , 290,
    
    44 P.3d 887
    ( 2002).        Here, Dierker joined the suit after West had filed his PRA request with the
    Port and after West had filed his first complaint against the Port. The record does not show that
    3
    Dierker joined     with    West in making the PRA             request.
    3 Dierker argues that he made his own PRA requests but they were kept out of the record by the
    Port. First, Dierker       could     have   supplemented      the   record with      his       requests.   RAP 9. 6(   a).   Second,
    the complaint in this case does not mention Dierker' s alleged PRA requests.
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    43876 -3 - II
    Our courts have found that people other than the person who actually made the PRA
    request    have standing to        bring      a   PRA   action   under   limited    circumstances.       For example, in
    Kleven, the court held that the plaintiff had standing to sue under the PRA even though his
    attorney filed the initial PRA           request.       111 Wn.      App.   at   290.   The court determined that the
    behalf        his             Kleven,
    clearly indicated that the attorney                  the
    complaint                                                   made            request on            of         client.
    111 Wn. App. at290.
    By contrast, here, neither the PRA request nor the complaint state that West made the
    PRA requests on Dierker' s behalf. Unlike the attorney /client relationship in Kleven, there is no
    similar relationship between West and Dierker to show that West acted on Dierker' s behalf.
    Consequently, Dierker does not have standing to enforce the PRA claims and he is not entitled to
    relief relating to these claims.
    B.        Dismissal of PRA Claims
    West first argues that the trial court erred when it dismissed the PRA claims for excessive
    delay. Because the trial court' s order is based on untenable reasons, we reverse.
    We review a trial court' s order exercising its inherent power to dismiss a case for an
    discretion.                   Port of Olympia, 
    35 Wash. 2d 239
    , 241, 
    212 P.2d 821
    ( 1949).                    A
    abuse of                      Stickney   v.
    trial court abuses its discretion when its decision is manifestly unreasonable or based on
    untenable        grounds or reasons.          State ex rel. Carroll v. Junker, 
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    1971).
    1.       CR41 ( b)( 1)
    CR 41( b)( 1) governs involuntary dismissal for want of prosecution if the plaintiff fails to
    note the action for trial or hearing within 1 year after any issue of law or fact has been joined."
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    43876- 3- 11
    If the case is noted for trial before the hearing on the motion, the action shall not be dismissed."
    CR 41( b)( 1).
    Here, the Port          moved     to dismiss   under   both CR 41( b)( 1),       lack of prosecution, and the
    court' s   inherent authority.          The trial court granted the Port' s motion to dismiss, although it did
    not   specify    under which         theory. To the extent that the trial court dismissed the order under CR
    41( b)( 1),   this was an error. Dismissal under CR 41( b)( 1) is not appropriate because West filed a
    motion to set a trial date before the hearing on the motion to dismiss.
    2.           Inherent Authority
    A court of general jurisdiction has the inherent power to dismiss actions for lack of
    prosecution, but only when no court rule or statute governs the circumstances presented."
    Snohomish        County       v.   Thorp     Meats, 
    110 Wash. 2d 163
    , 166 -67, 
    750 P.2d 1251
    ( 1988) ( footnote
    omitted).       As    we    discussed in the     previous section,        CR 41( b)( 1)   does   not   apply here. "`   Where
    dilatoriness of a type not described by CR 41( b)( 1) is involved, a trial court' s inherent discretion
    to dismiss      an action     for    want of prosecution remains. "'          Wallace v. Evans, 
    131 Wash. 2d 572
    , 577,
    
    934 P.2d 662
    ( 1997) ( quoting                Thorp   
    Meats, 110 Wash. 2d at 169
    ). "   Dilatoriness of a type not
    described       by    CR 41( b)( 1)"     refers to unacceptable litigation practices other than mere inaction.
    
    Wallace, 131 Wash. 2d at 577
    . Dismissal is justified under the court' s inherent authority only when
    a party acts in willful and deliberate . disregard of reasonable and necessary court orders.
    300, 304, 
    3 P.3d 198
    ( 2000);                     Woodhead v.
    of Seattle, 101 Wn.
    Apostolis                                                                                          see, e. g.,
    v.    City                              App.
    Discount Waterbeds, Inc., 78 Wn.                    App.      125, 131,    
    896 P.2d 66
    ( 1995) (       finding the plaintiff
    willfully and deliberately misled the court by falsely claiming to have effected proper service).
    Examples include failing to comply with court rulings, failing to appear, and filing late briefs.
    Bus. Servs. of Am. II, Inc.            v.   WaferTech LLC, 
    174 Wash. 2d 304
    , 311, 
    274 P.3d 1025
    ( 2012);                   see
    6
    43876 -3 -II
    also   Alexander         v.    Food Servs. of Am., Inc., 76 Wn.                         App.    425, 430, 
    886 P.2d 231
    ( 1994)
    dismissing case where the plaintiff had notice of the trial and willfully chose not to attend);
    Jewell    v.   City    of Kirkland, 50 Wn.                  App.    813, 821 -22, 
    750 P.2d 1307
    ( 1988) (                dismissing case
    where plaintiff violated a court order by failing to post funds by a certain date).
    In this instance, there are no findings showing " dilatoriness of a type not described by CR
    41( b)( 1)."     See 
    Wallace, 131 Wash. 2d at 577
    .    The trial court found there existed 17 months of
    inaction in the proceedings; however, mere inaction is an insufficient basis to support dismissal
    based    on    the trial      court' s     inherent authority.             
    Wallace, 131 Wash. 2d at 577
    .     The Port argues that
    the trial      court    found that West               and   Dierker       violated a court order         to " proceed with the case,"
    Resp' t Port' s Br. at 20, but the trial court did not find that West or Dierker violated an order to
    proceed with the case."
    Additionally,            even        if   plaintiffs'    conduct     could    be    characterized       as " dilatoriness not
    described       by     CR 41( b)( 1),"           the trial court did not make a finding that West or Dierker acted
    willfully      and     deliberately.             Here, the trial court concluded that West and Dierker deliberately
    and    willfully        caused          excessive       delays.      But the trial court' s findings do not support this
    conclusion.          Although the findings list the various delays in this case, nothing in the findings
    indicates that West                 and     Dierker       deliberately       and   willfully    acted     to,   cause    the   delays.       For
    example,        the findings            state   that five   judges       were recused    from this       case.    But the trial court did
    not    find the      affidavits          of prejudice were           a    deliberate   delay   tactic.    The record shows that the
    judges     were unable             to   hear    the case    because       of " conflicts and affidavits."         CP     at   2719.    Further,
    in its oral ruling, the trial court expressly declined to determine whether West' s eight failed
    attempts at       setting      a   hearing       were    intentional. Because the trial          court    did    not   find,   and   the   record
    43876 -3 - II
    does not show, that West or Dierker acted in deliberate and willful disregard of a court order, the
    trial court based its order on untenable reasons and we reverse the dismissal of the PRA claims.
    3.          Merits of the PRA Claim
    West     asks    us    to determine the         merits    of    his PRA     claim.      RCW 42. 56. 550( 1),    which
    governs judicial review of agency actions under the PRA, states that the superior court may
    require the agency to show why it refused to allow inspection of the withheld records. Here, the
    superior court           did   not   hold   a   hearing     or make a        decision   on   the   merits of   the PRA   claim.   We
    remand        this    claim    to the trial     court.    See Spokane Research &             Def. Fund v. City ofSpokane, 
    155 Wash. 2d 89
    , 106, 
    117 P.3d 1117
    ( 2005) (                       remanding to the trial court where the plaintiff had not
    yet had a court review the allegedly exempt documents).
    II.           BIFURCATION
    Next, West and Dierker make various claims regarding the trial court' s bifurcation order.
    But because they failed to                  object       in the trial   court,   this   argument     is   waived on appeal.       RAP
    2. 5(   a).   Additionally, to the extent they are arguing that the delay in commencing the PRA claims
    is the result of the bifurcation order and not their own inaction, it is unnecessary to reach this
    argument in light of our decision to reverse the trial court on this issue.
    III.          STANDING FOR NON -PRA CLAIMS
    West and Dierker next argue that the trial court erred by dismissing their non - RA claims
    P
    for lack         of    standing.       Because West' s. and Dierker' s claimed injuries are speculative and
    nonspecific, we hold that they lacked standing.
    To establish standing to challenge an action under SEPA, a party must ( 1) show that the
    alleged endangered interests fall within the zone of interests protected by SEPA and (2) allege an
    injury       in fact,    which requires          evidence of specific           and perceptible      harm.     Kucera v. Dep' t. of
    8
    43876 -3 -II
    Transp.,    
    140 Wash. 2d 200
    , 212, 
    995 P.2d 63
    ( 2000).                   A party alleging a threatened injury instead
    of an existing injury must show that the injury will be " immediate, concrete, and specific" rather
    than   conjectural or     hypothetical.           Leavitt v. Jefferson County, 
    74 Wash. App. 668
    , 679, 
    875 P.2d 681
    ( 1994) ( quoting Trepanier              v.    Everett, 64 Wn.     App.      380, 383, 
    824 P.2d 524
    ( 1992)).          The
    party' s interest must be more than the general public' s abstract interest in having others comply
    with the law. Chelan County v. Nykreim, 
    146 Wash. 2d 904
    , 935, 
    52 P.3d 1
    ( 2002).
    Here, the trial court found that West' s and Dierker' s interests were arguably within the
    zone   of   interest   protected      by    SEPA but that they failed to            allege   an   injury   in fact:    CP at 94
    Plaintiffs have not alleged immediate, concrete, specific injury required to establish standing or
    to them beyond any                                  of   the   public. ").   Therefore, we review
    injury    particular                                      other   member
    whether West and Dierker have alleged an immediate, concrete, and specific injury.
    In Suquamish Indian Tribe                  v.   Kitsap County,     92 Wn.      App.     816, 831, 
    965 P.2d 636
    1998),     the court held that the plaintiffs had standing to contest a proposed residential
    development plan because their properties were adjacent to the planned developments and the
    plan would result in increased traffic on the roads plaintiffs used to access their properties.
    Similarly,        in Kucera, the           court    held that the       plaintiffs,    who    owned        shoreline   property,
    sufficiently alleged injury in fact when they claimed that wakes off of a ferry damaged the
    
    shorelines: 140 Wash. 2d at 213
    .    The plaintiffs in these actions alleged concrete injuries to their
    specific interests.
    West          Dierker have                         speculative and general        injuries.   They
    By    contrast,           and                     alleged    only
    assert that the Weyerhaeuser lease will result in greater pollution in the area, increased traffic
    around      the   port, and negative effects on wildlife.              But these harms are not particularized like the
    harms asserted by the adjacent property owners in Suquamish Indian Tribe and Kucera.
    9
    43876- 3- 11
    Furthermore, the         claims are    hypothetical (       e. g.,   ships may sink; there may be more boat wakes,
    which disrupt the sand lance habitat and, in turn, affect animals further up the food chain; and the
    new    activity may disturb         areas   that   plaintiffs claim are         already   polluted).   West' s and Dierker' s
    allegations were insufficient to establish injury in fact and, thus, they do not have standing.
    IV.       ATTORNEY FEES
    West   requests    attorney fees         under   RAP 18. 1      and     RCW 42. 56. 550( 4). RCW 42. 56. 550( 4)
    states:
    Any person who prevails against an agency in any action in the courts seeking the
    right to inspect or copy any public record or the right to receive a response to a
    public record request within a reasonable amount of time shall be awarded all
    costs, including reasonable attorney fees, incurred in connection with such legal
    action.
    A party    prevails      if "the   records should        have been disclosed           on request."    Spokane Research &
    Def. 
    Fund, 155 Wash. 2d at 103
    .   Although West successfully argued that the trial court improperly
    dismissed his PRA claims, he has not yet shown that the Port withheld records that should have
    been   immediately        disclosed.        Accordingly, he has not prevailed under RCW 42. 56. 550( 4) and
    attorney fees are not appropriate at this stage in the proceeding.
    Dierker   also seeks costs and sanctions                   based   on   the PRA   claims.    Because Dierker does
    not have standing to enforce the PRA claims, we deny his request.
    The Port requests attorney fees under RAP 18. 9 and RCW 4. 84. 185 for defending a
    frivolous      appeal.     An action is frivolous if, considering the action in its entirety, it cannot be
    supported by any rational argument based in fact or law. Dave Johnson Ins., Inc. v. Wright, 167
    Wn.    App.. 758,     785, 
    275 P.3d 339
    ,           review    denied, 
    175 Wash. 2d 1008
    ( 2012).              West successfully
    appealed   the trial     court' s    dismissal     of   the PRA       claims.      This action was not frivolous and we
    deny the Port' s attorney fee request.
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    43876 -3 - II
    We reverse the trial court' s dismissal of West' s PRA claims and remand for further
    proceedings. We affirm the trial court' s bifurcation order and order dismissing the SEPA claims.
    We deny all parties' requests for attorney fees.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW
    2. 06. 040, it is so ordered.
    We concur:
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