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 "the broad scope of [his] entire request and the large volume of potentially responsive records, the Port estimated that additional time was required to gather, review records and respond. [The Port] estimated [it] could respond to [West's] request on or before August 31, 2009." 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.
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,
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,
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.
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, 182 Wn.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, 345 P.3d 43, review denied, 184 Wn.2d 1009 (2015). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Here, the superior court considered facts beyond those stated in West's complaint. Therefore, because a motion to dismiss for failure to state a claim is treated as a motion for summary judgment when matters outside the pleadings are considered, we treat the superior court's dismissal of West's suit as a decision on a motion for summary judgment. Kelley v. Pierce County, 179 Wn.App. 566, 573, 319 P.3d 74, review denied, 180 Wn.2d 1019 (2014).
In Hobbs, we addressed the issue of whether a public records requester is allowed to initiate a lawsuit before an agency denies or closes the request. 183 Wn. App. at 935. Hobbs argued that "a requester is permitted to initiate a lawsuit prior to an agency's denial and closure of a public records request." Id. We rejected Hobbs's argument and held, "Under the PRA, a requester may only initiate a lawsuit to compel compliance with the PRA after the agency has engaged in some final action denying access to a record," and, though not specifically defined, "a denial of public records occurs when it reasonably appears that an agency will not or will no longer provide responsive records." Id. at 935-36. We concluded that the plain language of the PRA dictated that "being denied a requested record is a prerequisite for filing an action for judicial review of an agency decision under the PRA." Id. at 936. Accordingly, we held that the superior court did not err in dismissing Hobbs's PRA suit. Id. at 946.
Here, West made his public records request on August 14, 2009. Like in Hobbs, the Port replied to West's request within the five-day statutory period and provided West with an anticipated response date of the end of the month. However, the Port was unable to meet that deadline due to "the broad scope of [his] entire request and the large volume of potentially responsive records" and had to extend the estimated date of production. Resp't CP at 36. And like in Hobbs, the Port maintained active communication with West about his request. The Port sent a letter to West on October 14 detailing its response to each of West's requests. But West had already filed his suit on October 6.
We reach the same conclusion we reached in Hobbs—that West's suit against the Port was premature under the plain language of the PRA because the Port had not "engaged in some final action denying access to a record" at the time West filed the suit, and "being denied a requested record is a prerequisite for filing an action for judicial review of an agency decision under the PRA." Id. at 935-36.
West argues that the facts in Hobbs are distinguishable from the facts of this case. We disagree.
West argues that, unlike Hobbs, the Port was not in the process of producing records when he filed suit. However, while the record shows that the Port had not produced a first installment as the Auditor did when Hobbs filed suit, the record does show that the Port was not ignoring West's request.
On August 19, within five days of receiving the request, the Port advised West that because the scope of his request was "broad" and that there were a "large volume of potentially responsive records" that required "additional time . . . to gather, review records and respond," the Port needed until August 31 to respond. Resp't CP at 36. Although the Port could not meet the August 31 self-imposed deadline, the Port provided West with constant updates, including its last update on October 6, which stated that it estimated a response by October 14.
West notes that the Hobbs court included a footnote stating that it did "not address the situation where an agency completely ignores a records request for an extended period." Id. at 937 n.6. However, the record fails to support the claim that the Port "completely ignored" West's request for an extended period of time. Therefore, the fact that the Port did not produce records before West filed suit does not render the legal principles in Hobbs inapplicable.
Second, West attempts to distinguish Hobbs by arguing that he asserted his cause of action under RCW 42.56.550(2).
Regardless, West did not assert a cause of action under RCW 42.56.550(2) or seek the relief provided by that statute. RCW 42.56.550(2) states:
West's complaint did not identify RCW 42.56.550(2) as the basis for his cause of action, nor did it seek to have the superior court "require the responsible agency to show that the estimate it provided [wa]s reasonable." RCW 42.56.550(2). Instead, West's asserted cause of action under the PRA was, "By their acts and omissions, the Port of Tacoma and its agents violated the Public Records Act, RCW 42.56." Appellant CP at 186. The relief West requested was "[t]hat plaintiff be awarded per diem penalties for each day each public record has been unlawfully withheld in regard to his August 14, 2009 request, and for each day of the Port's pattern of unreasonably delaying disclosure, and that plaintiff recover his costs and fees." Appellant CP at 187. This is not relief provided under RCW 42.56.550(2), but is instead relief provided under RCW 42.56.550(4). Therefore, West's argument that he asserted a cause of action under RCW 42.56.550(2) fails.
Even if we view West's request for relief as a request under RCW 42.56.550(2), West's claim fails. Nothing in the record shows that the Port provided an unreasonable estimate of time for responding to West's request. West made his records request on August 14. The Port initially estimated that it would be able to respond to West's request by the end of August. The Port then extended its estimated response date three times and ultimately provided a final estimated response date of October 14. But RCW 42.56.520 "does not limit the number of extensions an agency may require to respond to a request." Andrews v. Wash. State Patrol, 183 Wn.App. 644, 652, 334 P.3d 94 (2014), review denied, 182 Wn.2d 1011 (2015). The two-month time frame was reasonable as the record shows that the Port viewed the request as broad in scope and potentially involved a large number of responsive documents. The record also shows that there was a large volume of potentially responsive records to go through, the request included records subject to the attorney-client privilege, the Port initially found 587 responsive records, the Port subsequently informed West of an additional 1,258 records that were responsive to the request, and the Port provided him with privilege logs for records deemed exempt.
West next argues, "In [Hobbs], the Court actually reached the merits of Hobbs'[s] claims, and found no violation, making the portions of their ruling on the timing of Hobbs suit obiter dictum inapplicable to cases where an actual violation of the PRA is present." Br. of Appellant at 31. We disagree.
"Obiter dictum" is "`[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).'" Pierce County v. State, 150 Wn.2d 422, 435 n.8, 78 P.3d 640 (2003) (quoting BLACK'S LAW DICTIONARY 1100 (7th ed. 1999)). "Obiter dictum" is generally abbreviated to "dicta." State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954). Alternative holdings are not dicta, but are instead binding precedent. See e.g., Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017) (citing, among others, Hitchcock v. Sec'y, Florida Dep't of Corr., 745 F.3d 476 (11th Cir. 2014) for the proposition that "[A]n alternative holding is not dicta but instead is binding precedent.").
Here, the first issue considered in Hobbs was whether "a requester is permitted to initiate a lawsuit prior to an agency's denial and closure of a public records request." 183 Wn. App. at 935. On that issue, Hobbs held that "before a requester initiates a PRA lawsuit against an agency, there must be some agency action, or inaction, indicating that the agency will not be providing responsive records." Id. at 936. Thus, the requirement that, "there must be some agency action, or inaction, indicating that the agency will not be providing responsive records" before a PRA suit could be filed, was the primary issue decided in Hobbs. Id. And to the extent Hobbs provided further holdings for why the superior court did not err, they would be alternative holdings and binding precedent.
West also argues that Hobbs should not be applied retroactively. However, the superior court did not retroactively apply Hobbs. Hobbs was decided before the superior court considered the Port's motion to dismiss on remand. Furthermore, when "a case is appealed after being remanded by the appellate court, the court may apply the law in effect at the time of the second appeal in reaching its decision." Roberson v. Perez, 119 Wn.App. 928, 933, 83 P.3d 1026 (2004), aff'd, 156 Wn.2d 33, 123 P.3d 844 (2005). Thus, we may nonetheless apply the legal principles set forth in Hobbs in this appeal. Therefore, West's argument fails.
West next argues that the superior court was required to reach the merits of his claim because Division One of this court ordered a remand of the case for trial on the merits on a prior appeal.
West's argument is not persuasive because Division One's opinion considered only whether dismissal was proper under CR 41(b) and not CR 12(b)(6) or CR 56(c). See West v. Bacon, No. 71366-3-I, slip op. at 4-5 (Wash. Ct. App. Apr. 28, 2014) (unpublished), http:/www.courts.wa.gov/opinions/pdf/713363.pdf. The superior court had previously dismissed West's suit relying on CR 41(b) and its inherent authority to dismiss because West disregarded the contempt order from the court and West's conduct had "substantially interfered with the efficient administration of justice." VRP (June 12, 2012) at 43. On appeal, Division One reversed and ordered the merits of West's claim to be remanded for trial. Id. at 10.
Division One's remand in 2014 does not change the necessary conclusion dictated by Hobbs because Division One only considered whether the superior court abused its discretion in granting a dismissal under CR 41(b). Thus, Division One's decision in the previous appeal has no bearing on the issues before this court in the current appeal, which concerns whether West prematurely filed suit.
West argues that Violante v. King County Fire District No. 20, 114 Wn.App. 565, 59 P.3d 109 (2002); West v. Department of Natural Resources, 163 Wn.App. 235, 258 P.3d 78 (2011), review denied, 173 Wn.2d 1020 (2012); and Hangartner v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004), allowed him to bring a PRA action before his request was completed, in part because it was necessary to get the Port to respond. However, the cases West relies on are not persuasive. West and Hangartner did not address the issue of whether suit was prematurely filed. And Violante only addressed whether the suit was necessary when the public agency failed to respond to four PRA requests for the same information. 114 Wn.App. at 570-71.
West also argues that we should follow International Longshore & Warehouse Union v. Port of Portland, 285 Or.App. 222, 396 P.3d 235, review denied, 362 Or. 39 (2017), and hold that the superior court improperly dismissed the case because a "denial" of a records request is not necessary for a court to have jurisdiction over a case under public records law. However, the court in International Longshore interpreted an Oregon public records statute that allowed the court to enjoin a public body from withholding records, which is distinct from the Washington statute at issue here, which allows a requester to motion the court to require a public agency to show why it failed to disclose records or why its estimated disclosure time was reasonable. See ORS 192.490(1); see also RCW 42.56.550. Furthermore, precedent from other jurisdictions does not control our decisions. Casterline v. Roberts, 168 Wn.App. 376, 385, 284 P.3d 743 (2012); Charlton v. Toys "R" Us—Delaware, Inc., 158 Wn.App. 906, 916 n.1, 246 P.3d 199 (2010). Therefore, we do not follow International Longshore.
West argues that applying the legal principle from Hobbs would violate the separation of powers, intent of the PRA, prohibition on ex post facto laws, and due process. However, we do not consider these claims as West merely claims such violations exist and cites to cases for the rules, but does not provide further argument.
West makes several arguments regarding the superior court's jurisdiction over this case based on res judicata, collateral estoppel, equitable estoppel, and waiver. Regarding his claim under res judicata, West does not provide any applicable legal authority for support, and thus, we decline to address this claim. RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809. And for his claims under estoppel and waiver, West asserts that the Port waived the defense of jurisdiction and estopped itself from claiming otherwise because it sought affirmative relief. However, the Port did not seek any such relief. Therefore, these claims fail.
West argues that the superior court erred when it vacated its order for a show cause hearing and allowing amendment.
Under CR 59(a), on the motion of the aggrieved party, a decision or order of the superior court may be vacated and reconsideration granted. Such relief may be granted based on an irregularity in the court proceeding or order, misconduct of the prevailing party, accident or surprise that ordinary prudence could not have guarded against, and when substantial justice has not been done. CR 59(a)(1), (2), (3), (9).
Under Pierce County Local Rule (PCLR) 7(a)(3)(A), motions are scheduled for hearing by filing a note for motion docket. The note must be "filed with the motion and supporting documents and served upon the opposing party at the same time." PCLR 7(a)(3)(A). The note, motion, and supporting documents must be filed with the court clerk, and served on the other party "no later than the close of business on the sixth court day before the day set for hearing." PCLR 7(a)(3)(A). Also, all motions must be confirmed by contacting the judicial assistant of the assigned judicial department by noon two court days before the hearing. PCLR 7(a)(9).
We review a superior court's ruling on a motion to reconsider and motion to vacate under CR 59 for an abuse of discretion. Landon v. Home Depot, 191 Wn.App. 635, 639, 365 P.3d 752 (2015), review denied, 185 Wn.2d 1030 (2016); Meridian Minerals Co. v. King County, 61 Wn.App. 195, 203, 810 P.2d 31, review denied, 117 Wn.2d 1017 (1991). A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. Landon, 191 Wn. App. at 640.
Here, the superior court vacated its previous order to show cause and to allow West to amend his complaint because West did not properly note or confirm the hearing for May 10, knew and 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.
While West was not required to alert the superior court that the Port was unavailable, PCLR 7 specifically requires that the note, motion, and supporting documents must also be filed with the court clerk, and served on the other party "no later than the close of business on the sixth court day before the day set for hearing." PCLR 7(a)(3)(A). However, West did not note the hearing for May 10 and did not file the note and supporting documents until two days before the hearing. And the record does not show that West had confirmed the hearing. West's failure to properly follow the rules prevented the Port from receiving proper notice of the hearing and provided a basis for the superior court to vacate its previous order. Thus, we hold that the superior court did not abuse its discretion when it vacated its order for a show cause hearing and allowing amendment.
West next argues that the superior court erred by changing the venue and appointing a visiting judge. This claim is factually meritless.
Under RCW 4.12.030, a court may change the venue for trial when motioned on several bases, including improper county designation, lack of impartiality, convenience, and judge disqualification. And under RCW 2.08.150, judges from one county may request that a visiting judge from another county be appointed. There is no requirement that this request must be on the record, and "[a] superior court, as a court of general jurisdiction, is presumed to act within its authority absent an affirmative showing to the contrary." State v. Hawkins, 164 Wn.App. 705, 712, 265 P.3d 185 (2011), review denied, 173 Wn.2d 1025 (2012).
West argues that this case should not have been transferred to Grays Harbor County because it was not the proper county for this case, and thus, the superior court lacked jurisdiction. However, the venue of this case was not transferred to Grays Harbor County Superior Court. A visiting judge from Grays Harbor County was merely appointed and trial was still set to be held in Pierce County Superior Court. While West also argues that the court lacked a basis to appoint a visiting judge, West fails to show that the superior court acted beyond its authority under RCW 2.08.150. Thus, we hold that this claim fails.
Furthermore, "[i]t is also the rule that questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause." Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965). West could have presented this issue in his prior appeal, but failed to do so. Therefore, we decline to address this issue.
Both parties request attorney fees and costs on appeal.
West requests fees and costs under RAP 18.1 and RCW 42.56.550(4). Under RCW 42.56.550(4), a party prevailing against an agency in a PRA suit is entitled to an award of fees and costs. Because West does not prevail here, he is not entitled to fees and costs.
The Port also requests fees and costs under RAP 18.1, RAP 18.9, and RCW 4.84.185 for defending a frivolous appeal. Under RCW 4.84.185, 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 Wn.2d 1008 (2012). Under RAP 18.9, an appeal is frivolous if it is so devoid of merit that there exists no reasonable possibility of reversal. In re Marriage of Healy, 35 Wn.App. 402, 406, 667 P.2d 114, review denied, 100 Wn.2d 1023 (1983). Because West's appeal did not present debatable issues on which there was a reasonable possibility of reversal, we exercise our discretion and award attorney fees and costs to the Port.
We affirm.
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.
Johanson, A.C.J., Melnick, J., concur.
