                                                                                               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PORT      OF      OLYMPIA;        WEYERHAEUSER                                UNPUBLISHED OPINION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 Wn. 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.
                                                                4
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 Wn.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 Wn.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."


                                                                 5
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 Wn.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 Wn.2d 572, 577,


934 P. 2d 662 ( 1997) ( quoting                Thorp   Meats, 110 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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

Wn.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 Wn.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 Wn. 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 Wn.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 Wn.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 Wn. 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 Wn.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.
                                                                     10
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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