       FILE
       IN CLERKS OFFICE
IUPREME COURT, STATE OF WASHINGTON

                     ~- !0   2013




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 COST MANAGEMENT SERVICES, INC.

                              Respondent,        NO. 87964-8

                   v.
                                                 ENBANC
 CITY OF LAKEWOOD, a municipal
 corporation, and CHOI HALLADAY,
 Assistant City Manager for Finance,                        ·ocT 1o
                                                 Filed - - - - - zo13-
                                                                 -

                              Petitioners.


 COST MANAGEMENT SERVICES, INC.

                              Respondent,

                   v.

 CITY OF LAKEWOOD, a municipal
 corporation,

                              Defendant.



          GORDON McCLOUD, J.-For many years, Cost Management Services

 Inc. (CMS) made a certain tax payment to the city of Lakewood. In late 2008,
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



upon examining the relevant regulations, CMS decided that it did not in fact owe

the tax that it had been paying. In November 2008, it stopped paying the tax and it

submitted a claim to Lakewood for a refund of taxes it had previously paid from

2004 to September 2008.

       Lakewood did not respond to the request for a refund of the 2004-2008 tax

payments. But six months later, in May 2009, it issued a notice and order to CMS

demanding payment of past due taxes for a different time period-October 2008 to

May 2009. CMS did not respond to the notice and order from Lakewood.

       Instead, CMS sued Lakewood in superior court on its refund claim, asserting

a state common law claim of money had and received. The trial court held a bench

trial on that state law claim. The trial court found in favor of CMS, ruling that

CMS did not owe the taxes it had paid to Lakewood. In addition, in a separate

action, the trial court granted CMS 's petition for a writ of mandamus ordering

Lakewood to respond to the refund claim.

       The Court of Appeals affirmed in a partially published opinion. Cost Mgmt.

Servs., Inc. v. City of Lakewood, 170 Wn. App. 260, 284 P.3d 785 (2012). It first

addressed Lakewood's argument that the trial court should have dismissed CMS' s

claim because CMS failed to exhaust its administrative remedies. The Court of

Appeals reasoned that since Lakewood had never actually responded to the refund

                                              2
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



claim, CMS had no further administrative steps available to it on the refund claim,

and thus exhaustion was not required. The appellate court also ruled that the trial

court had properly issued the writ of mandamus. Lakewood sought review of the

Court of Appeals' decisions on the exhaustion and the mandamus issues, and we

accepted review. Cost Mgmt. Servs., Inc. v. City of Lakewood, 176 Wn.2d 1011,

297 P.3d 706 (2013). We affirm the Court of Appeals as to the exhaustion issue,

but we reverse the Court of Appeals as to the mandamus issue.

                                          FACTS

       CMS is an energy consulting firm that arranges the purchase and delivery of

natural gas for its customers from its offices on Mercer Island.      Some of its

customers are in Lakewood.           Between 2004 and 2008, CMS paid a tax to

Lakewood that CMS labeled, in its tax returns, an "occupation" tax. Report of

Proceedings (RP) 12/13/10 (a.m.) at 98-99. CMS paid the tax through September

2008. During that month, though, CMS discovered that Lakewood did not charge

any occupation tax.      CMS had instead been paying an amount that apparently

corresponded to Lakewood's "utility" tax. RP 12/14/10 (a.m.) at 281-82. Liability

for that utility tax depended on CMS having a business license in, and doing

business in, Lakewood. CMS believed that it was not a business in, and did not do

business in, Lakewood. It therefore stopped paying the tax and wrote to Lakewood

                                              3
Cost Mgmt. Servs., Inc. v. ·city of Lakewood, et al.
No. 87964-8



in November 2008 requesting a refund for taxes mistakenly paid between January

2004 and September 2008.

       Lakewood did not respond to CMS' s request. Instead, in May 2009, over

six months after CMS' s refund request, Lakewood sent CMS a "NOTICE AND

ORDER/DEMAND FOR TAX PAYMENT." Def.'s Ex. 3. That notice and order

asserted that CMS did business in Lakewood and therefore owed taxes from the

time it had stopped paying in October 2008. It demanded payment of taxes "from

October of 2008 to the present" and also ordered CMS to apply for and obtain a

business license from Lakewood. !d.

       In June 2009, CMS filed suit in Pierce County Superior Court alleging that

Lakewood owed it a refund and had failed to respond to its refund claim.

Lakewood sought summary judgment, claiming that CMS had failed to exhaust its

administrative remedies. The trial court disagreed, eventually held a bench trial,

and found that Lakewood owed CMS approximately $600,000.

       CMS had initiated its suit on June 24, 2009. It asserted that Lakewood owed

it a refund for taxes paid from January 2004 to September 2008. During the

litigation, the trial court ruled that CMS' s claim for a refund of taxes before June

24, 2006, was barred by the three year statute of limitations. Thus, even if CMS

won at trial, its recovery would be limited to the period of June 24, 2006 to

                                               4
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



October 1, 2008. In an attempt to recover taxes it had paid before June 2006, CMS

filed another, separate action in the Pierce County Superior Court seeking a writ of

mandamus to compel Lakewood to respond to CMS's November 2008 refund

request. The trial court consolidated that case with the first case CMS had filed

and granted the writ. The bench trial concluded with a judgment in favor of CMS. 1

Lakewood appealed that judgment and the order granting CMS 's petition for a writ

of mandamus. The Court of Appeals affirmed. Cost Mgmt. Servs., 170 Wn. App.

260. Lakewood sought review in this court of two specific issues: first, whether

the Court of Appeals erred in concluding that exhaustion of administrative

remedies was not required; and second, whether the Court of Appeals erred in

affirming the order granting the petition for a writ of mandamus.

                                       ANALYSIS

    1. WHETHER CMS WAS REQUIRED TO EXHAUST ADMINISTRATNE REMEDIES

       1
          CMS received a judgment of $424,803.36 for taxes paid from June 24, 2006
through October 1, 2008, as allowed by the statute of limitations, plus $176,149.39 in
prejudgment interest, for a total judgment of $600,952.75. Clerk's Papers (CP) at 715.
That judgment did not include any recovery related to CMS' s pursuit of an administrative
remedy based upon the trial court's issuance of mandamus ordering Lakewood to respond
to CMS' s refund request. In fact, the record before us does n~t indicate what occurred
with respect to further administrative proceedings in Lakewood after the court issued a
writ of mandamus. At oral argument, however, counsel for Lakewood suggested that that
part of this case is presently before Lakewood's hearing examiner. Wash. State Supreme
Court oral argument, Cost Mgmt. Servs., Inc. v. City of Lakewood, No. 87964-8 (May 16,
2013), at 9 min., 33 sec., audio recording by TVW, Washington State's Public Affairs
Network, available at http://www.tvw.org.
                                              5
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       a. Standard ofReview

       We have never directly stated the standard of review in this court of a lower

court's determination regarding exhaustion of administrative remedies. We have,

however, stated that "[t]he exhaustion issue is a question of law for the trial court

to decide." Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 19 n.10, 829 P.2d 765

(1992) (citing Estate of Friedman v. Pierce County, 112 Wn.2d 68, 76, 768 P.2d

462 (1989)). We review questions of law de novo. Robb v. City of Seattle, 176

Wn.2d 427, 433, 295 P.3d 212 (2013). Therefore, we review de novo whether

exhaustion of administrative remedies was required in this case.

       b. Exhaustion Doctrine

       This court has long applied "the general rule that when an adequate

administrative remedy is provided, it must be exhausted before the courts will

intervene." Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 (1974) (citing

State ex rel. Ass 'n of Wash. Indus. v. Johnson, 56 Wn.2d 407, 353 P.2d 881

(1960)). To determine if the rule applies, we examine whether the party seeking

relief "has an administrative remedy" and whether any "attempt has been made to

pursue that remedy." I d. at 382. If the party seeking relief has an administrative

remedy, and did not pursue it before turning to the courts, then it is error for a trial

court to entertain the action. Id.

                                              6
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       The exhaustion rule "is founded upon the belief that the judiciary should

g1ve proper deference to that body possessing expertise in areas outside the

conventional expertise of judges." Citizens for Mount Vernon v. City of Mount

Vernon, 133 Wn.2d 861, 866, 947 P.2d 1208 (1997) (citing S. Hollywood Hills

Citizens Ass 'n for Pres. of Neighborhood Safety & Env't v. King County, 101

Wn.2d 68, 73, 677 P.2d 114 (1984)). We have identified several policy bases for

the rule:

       ( 1) insure against premature interruption of the administrative process;
       (2) allow the agency to develop the necessary factual background on
       which to base a decision; (3) allow exercise of agency expertise in its
       area; (4) provide for a more efficient process; and (5) protect the
       administrative agency's autonomy by allowing it to correct its own
       errors and insuring that individuals were not encouraged to ignore its
       procedures by resorting to the courts.

ld. (citing McKart v. United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 23 L.

Ed. 2d 194 (1969)).        The primary question in exhaustion cases, however, is

whether the relief sought can be obtained through an available administrative

remedy; if so, the party seeking relief must first seek relief through the

administrative process. See id.

       c. Should Exhaustion Apply Where CMS Requested a Tax Refund, and
          Lakewood's Only Action Thereafter Was a Demand for Payment of
          Different Taxes, Not a Response to the Refund Request?



                                              7
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       Lakewood asks us to review the Court of Appeals' conclusion "that superior

courts and the local hearing examiners have 'concurrent jurisdiction' over

municipal tax disputes on the theory that an equitable cause of action vitiates the

requirement of exhaustion." Pet. for Review at 7. Lakewood is concerned that the

"import of the Court of Appeals' decision is to provide a license for litigants to

evade exhaustion requirements." Suppl. Br. of Pet'rs at 16. We disagree with

Lakewood's interpretation of the Court of Appeals' holding; the Court of Appeals

did not hold that an equitable cause of action vitiates the requirement of

exhaustion. It held that Lakewood's inaction in response to CMS' s refund request

ended CMS's obligation to continue pursuing a remedy in that forum. Cost Mgmt.

Servs., 170 Wn. App. at 272. Thus, Lakewood's concern is misplaced.

              1.      The Court of Appeals Correctly Held That Lakewood's Notice
                      and Order Was Not a Response to CMS's Refund Claim

       The Court of Appeals first held that there had been no final administrative

decision by Lakewood: "CMS persuasively argues that this Notice and Order did

not constitute a denial of CMS 's refund claim but was, instead, a demand for

payment of taxes .... Lakewood cannot now characterize that Notice and Order to

pay taxes as a final agency determination denying CMS 's refund claim."         I d.

(citation omitted).


                                              8
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       Based on this determination, the appellate court concluded that there was

nothing left for CMS to do in the Lakewood forum:

       Lakewood contends that its hearing examiner system provides
       adequate administrative remedies to review its Notice and Order and,
       thus, CMS may not enjoy judicial review without exhausting these
       available administrative procedures. The [Lakewood Municipal
       Code] provides an administrative remedy only for review of a final
       order. CMS is not appealing from the May 13 Notice and Order
       demanding payment of current and future taxes but instead was
       seeking a tax refund for taxes already paid. Thus, CMS had no
       administrative mechanism to pursue a refund of taxes wrongly paid.

Cost Mgmt. Servs., 170 Wn. App. at 273.

       Finally, the appellate court stated, "Ultimately, CMS's claim was an action

m equity for 'money had and received'; and, under both the Washington

Constitution and state statute, the supenor court properly maintained original

jurisdiction to hear the equity claim." Id. at 274.

       Reading those passages together, we are convinced that the Court of Appeals

did not hold that "an equitable cause of action vitiates the requirement of

exhaustion." Pet. for Review at 7. Instead, the Court of Appeals decision that

CMS need not make any further attempts to exhaust resulted from its

determination that "CMS had no administrative mechanism to pursue a refund of

taxes wrongly paid" because Lakewood had never responded. to CMS' s refund

request. Cost Mgmt. Servs., 170 Wn. App. at 273.

                                              9
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       In its supplemental briefing, Lakewood asserts "that [Lakewood's] hearing

examiner system provides adequate administrative remedies to review its Notice

and Order and, thus, CMS may not enjoy judicial review without exhausting these

available administrative procedures."        Id. Lakewood similarly asserted at oral

argument that the Lakewood Municipal Code (LMC) provides a procedure by

which a taxpayer whose refund claim is denied could start the process of appealing

through the Lakewood system and that CMS was required to use that procedure. 2

See LMC 3.52.150-.160. Assuming that Lakewood is correct that its ordinance-

created appeal process was available to CMS in this case, CMS began that process

with its refund request. Lakewood, however, took no action on that request. As

the Court of Appeals correctly determined, Lakewood's notice and order was not a

response to CMS's refund request for the period of 2004 through September 2008,

but rather a demand for payment of taxes relating to an entirely different time

period-"October 2008 to the present." Def.'s Ex. 3. Lakewood simply failed to

respond to CMS's initiation of the administrative process laid out in the LMC.

Lakewood cannot place CMS in a catch-22 by refusing to respond to CMS's

refund request, issuing its own demand for payment, and then claiming CMS


       2
       Wash. State Supreme Court oral argument, Cost Mgmt. Servs., Inc. v. City of
Lakewood, No. 87964-8 (May 16, 2013), at 2 min., 45 sec., audio recording by TVW,
Washington State's Public Affairs Network, available at http://www.tvw.org.
                                             10
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



cannot pursue a remedy for its refund request before addressing Lakewood's

demand for payment. CMS did everything it was required to do to exhaust its

administrative remedies. Cf Bowen v. Dep 't of Soc. Sec., 14 Wn.2d 148, 154, 127

P.2d 682 (1942) (en bane) (holding that where an agency failed to respond to a

request for a hearing, "so far as these proceedings are concerned, respondent

exhausted his administrative remedies when he made demand upon the department

for a fair hearing").

       We therefore affirm the Court of Appeals' decision that the exhaustion

doctrine did not bar CMS' s suit in superior court. Exhaustion is required only if an

administrative remedy can provide the relief sought. Jones v. Dep 't of Health, 170

Wn.2d 338, 356, 242 P.3d 825 (2010).                  But an administrative appeal of

Lakewood's demand for payment for the period "October 2008 to the present,"

Def.'s Ex. 3, would have had no bearing on CMS 's refund request for taxes paid

"between January 1, 2004 and September 30, 2008," Def.'s Ex. 1.             Thus, the

administrative process available to CMS could not have provided an adequate

remedy for that refund request. The Court of Appeals correctly determined that

Lakewood's failure to respond to the tax refund request, and not the fact that CMS

brought a state law claim in equity, vitiated the exhaustion requirement.



                                             11
Cost Mgmt. Servs., Inc. v. City of Lakewood, eta!.
No. 87964-8



             11.    The Court of Appeals' Discussion of Original Jurisdiction Is
                    Potentially Confusing

       The Court of Appeals correctly held that CMS 's suit was not barred by the

exhaustion requirement because Lakewood did not properly respond to CMS' s

refund claim.      However, one of the Court of Appeals' statements may be

misleading. After deciding that Lakewood had never actually responded to CMS' s

refund claim, and holding on that basis that CMS' s suit was not barred, the Court

of Appeals further concluded that Lakewood's hearing officer and the superior

court had "concurrent original jurisdiction," and CMS could therefore "refer its

claim to either the hearing examiner or superior court." Cost Mgmt. Servs., 170

Wn. App. at 274 (citing Chaney v. Fetterly, 100 Wn. App. 140, 145-46, 995 P.2d

1284 (2000)).

       Lakewood interprets that language to mean that no exhaustion was required

because the trial court had concurrent original jurisdiction with Lakewood's

hearing officer in equitable matters. As explained above, the Court of Appeals'

decision was instead properly based on the lack of an adequate administrative

remedy. Nevertheless, amicus Washington Association of Municipal Attorneys

(WAMA), in its brief in support of Lakewood's petition for review, agrees with

Lakewood's interpretation. Br. of Amicus WAMA at 9.


                                            12
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964~8



       That interpretation of the Court of Appeals' holding would be an incorrect

statement of the law. Therefore, we take this opportunity to clarify that even if

original jurisdiction in a case lies with the superior court, exhaustion of

administrative remedies is still required.

       The parties believe that the confusion over the relationship between original

jurisdiction and exhaustion stems from an earlier case from this court, Qwest Corp.

v. City of Bellevue, 161 Wn.2d 353, 166 P.3d 667 (2007). In Qwest, this court did

suggest that if a superior court has original jurisdiction, exhaustion is not required.

We stated, "Qwest cites Chaney v. Fetterly, 100 Wn. App. 140, 145, 995 P.2d

1284 (2000) for the proposition that where a court has original jurisdiction over a

dispute, the administrative exhaustion requirement does not apply." Qwest, 161

Wn.2d at 370~71. 3 Although the Qwest opinion mentions the proposition only in

passing, Chaney explains its reasoning in detail:



       3
          The Court of Appeals below did not cite Qwest, but it did cite Chaney for the
proposition that the superior court and hearing officer had concurrent original jurisdiction
over the tax refund claim. Cost Mgmt. Servs., 170 Wn. App. at 274 (citing Chaney, 100
Wn. App. at 145~46). Since Qwest expressly relied on Chaney, and the Court of Appeals
below cited Chaney, the parties understandably argue that the Court of Appeals' holding
below is based on Qwest. However, as explained above, the Court of Appeals relied on
the absence of a response from Lakewood to CMS' s refund claim, rather than original
jurisdiction, in determining exhaustion did not bar CMS's suit in this case. To the extent
that the Court of Appeals' opinion implies that original jurisdiction vitiates the
exhaustion requirement, as Lakewood and WAMA assert that it does, it is incorrect.
                                             13
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



             Whether the doctrine of exhaustion applies depends on the
       nature of the relationship between the administrative agency and the
       superior court. In situations where each has jurisdiction of some kind,
       the agency may have original jurisdiction, while the superior court
       has appellate jurisdiction; or . . . the agency and the superior court
       may have concurrent original jurisdiction.

Chaney, 100 Wn. App. at 145. According to Chaney, "The doctrine of exhaustion

regulates the first relationship. It prevents a party from omitting to use, or starting

to use but then abandoning before final conclusion, the only forum that has original

jurisdiction." Id. at 146. Chaney concluded that, as a result, the exhaustion rule

does not apply "when a superior court and a quasi-judicial administrative agency

have concurrent original jurisdiction."        Id. at 141.   Thus, Chaney aligns the

constitutional concepts of appellate and original jurisdiction with the exhaustion

doctrine.

       WAMA and Lakewood are correct that this cannot be an accurate (or at least

complete) statement of the law. We have cautioned, in a different context, that "by

intertwining procedural requirements with jurisdictional principles, . . . separate

issues ... have been blurred. As a result, unfortunately, procedural elements have

sometimes been transformed into jurisdictional requirements." Dougherty v. Dep 't

of Labor & Indus., 150 Wn.2d 310,315,76 P.3d 1183 (2003). Qwest and Chaney

represent analogs-in the context of exhaustion of administrative remedies-of the


                                             14
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



sort of blurring of procedural elements and jurisdictional requirements that

Dougherty warns of.

       Superior courts in this state "have original jurisdiction in all cases and of all

proceedings in which jurisdiction shall not have been by law vested exclusively in

some other court." WASH. CONST. art. IV, § 6. Superior courts also have "such

appellate jurisdiction in cases arising in justices' and other inferior courts in their

respective counties as may be prescribed by law." !d. No one argues that in this

case there is a law vesting exclusive jurisdiction of municipal tax refund claims

somewhere other than the superior court. Cf State v. Posey, 174 Wn.2d 131, 136,

272 P.3d 840 (2012) ("[B]y limiting the common law tort claims of injured

workers and creating administrative procedures and enhanced remedies under the

Industrial Insurance Act, the legislature effectively modified the role of the

superior courts over such claims." (citation omitted)).         And amicus WAMA

properly points out that Superior Courts in this state have original jurisdiction over

all kinds of matters where jurisdiction has not been exclusively vested elsewhere-

"cases in equity, real property, the legality of any tax, inter alia." Br. of Amicus

WAMAat9.

       Exhaustion, on the other hand, is a doctrine of judicial administration; courts

applying exhaustion consider whether an adequate administrative remedy exists

                                             15
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



that the claimant should try first because of the courts' "belief that the judiciary

should give proper deference to that body possessing expertise in areas outside the

conventional expertise of judges." Citizens for Mount Vernon, 133 Wn.2d at 866

(citing S. Hollywood Hills Citizens Ass 'n, 101 Wn.2d at 73).

       The exhaustion doctrine has no bearing on the jurisdiction of the court in
                                                                  4
terms of the constitutional power of the court to hear a case.        Thus, to the extent

that the Court of Appeals' opinion suggests that a superior court's original

jurisdiction over a claim vitiates the exhaustion requirement, we disagree.            A

superior court's original jurisdiction over a claim does not relieve it of its

responsibility to consider whether exhaustion should apply to the particular claim

before the court.

    2. Whether the Trial Court Erred When It Granted CMS' s Petition for a Writ of
       Mandamus

       a. Standard ofReview

       Writs of mandamus are subject to two separate standards of review,

depending on the question reviewed. First, a writ of mandamus "may be issued by


       4
          In addition to its argument that it had no administrative remedy to pursue, CMS
argues that exhaustion is not required for recovery of wrongfully paid taxes because the
superior court has original jurisdiction over the "legality of any tax." WASH. CONST. art.
IV, § 6. CMS asserts that under Qwest, no exhaustion is required if the court has original
jurisdiction, and thus it cannot be required to exhaust its remedies. For the reasons
discussed, CMS' s argument is incorrect.
                                               16
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



any court ... to compel the performance of an act which the law especially enjoins

as· a duty .... " RCW 7.16.160. Moreover, "[t]he determination of whether a

statute specifies a duty that the person must perform is a question of law." River

Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). Thus,

since we review questions of law de novo, we review de novo the question whether

a statute specifies a duty such that mandamus may issue. But "[w]hether there is a

plain, speedy, and adequate remedy in the ordinary course of the law is a question

left to the discretion of the court in which the proceeding is instituted." I d. (citing

State ex rel. Hodde v. Superior Court, 40 Wn.2d 502, 517, 244 P.2d 668 (1972)).

We reverse discretionary decisions of the trial court only if "the superior court's

discretion was manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons." I d. (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,

482 P.2d 775 (1971)). Therefore, to sum up, if the question raised is whether a

statute prescribes a duty that will support issuance of a writ of mandamus, our

review is de novo. But if the question raised is whether there existed an adequate

remedy at law that precludes issuance of mandamus, we review the trial court's

decision for abuse of discretion. 5


       5
        Arguably, the second standard does not always apply. For example, whether an
adequate remedy exists will often turn on regulatory or statutory interpretation. In such
instances, the question is one of law that we review de novo.
                                             17
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



       b. The Trial Court Erred in Issuing a Writ of Mandamus Compelling
          Lakewood To Hear CMS 's Refund Claim

       CMS sought and obtained a writ of mandamus from the trial court

compelling Lakewood to respond to its refund claim. Lakewood asserts the court

erred by issuing the writ.

       First, Lakewood argues the application for the writ was untimely.        The

general rule is that mandamus "should be sought within the same period as that

allowed for an appeal." State ex rel. Von Herberg v. Superior Court, 6 Wn.2d 615,

618, 108 P.2d 826 (1940) (citing State ex rel. Hawksworth v. Clifford, 130 Wash.

103, 226 P. 272 (1924)). Lakewood argues that the writ application was untimely

because it was filed after the period for appealing its notice and order had expired.

But since the notice and order had nothing to do with the refund claim it cannot

affect the timeliness of a writ application related to that refund claim. Therefore,

Lakewood's first argument fails.

       Second, Lakewood argues that a writ of mandamus was improper because its

notice and order constituted a final agency action in response to CMS' s refund

claim, so Lakewood had already complied with its duty to respond to CMS 's

claim. As described above, however, the Court of Appeals correctly held that




                                             18
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



Lakewood never responded to CMS's claim; therefore, Lakewood's second

argument fails.

       Third, Lakewood argues in its petition for review that CMS cannot get a writ

of mandamus because it was maintaining a suit at the same time, seeking the same

thing (a tax refund). Lakewood argues that CMS could get a double return by

pursuing its administrative remedies while also getting relief in superior court.

CMS responds that the reason it applied for a writ of mandamus was because the

three year statute of limitations on its claim in state court prevented recovery of

taxes paid before June 24, 2006 (because it filed suit on June 24, 2009). CMS

asserts it has no avenue to reach the money it paid before June 2006 except

Lakewood's administrative process. And under CMS's theory of the case, it was

denied access to that administrative process because Lakewood never responded to

its refund request. Thus, CMS asserts, mandamus was proper to force Lakewood

to respond to its refund request as the only means by which CMS could recover

taxes paid before June 2006.

       Neither party has produced authority on this particular issue, but we disagree

with CMS' s argument, although for different reasons than those suggested by

Lakewood. The problem is not that CMS might get a double recovery. Rather, the

problem is that CMS might get any recovery for the stale, time-barred, portion of

                                             19
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



its claim. CMS chose to answer Lakewood's failure to respond to its refund claim

by filing suit in superior court. CMS could also have chosen (although it was not

required to do so) to seek mandamus from the superior court to force Lakewood to

respond. Instead, CMS first filed suit, and then sought mandamus only after the

trial court informed it that its recovery in superior court was constrained by the

three year statute of limitations. In essence, CMS seeks to use the administrative

process to revive a claim otherwise barred by the three year statute of limitations.

       The statute of limitations is "a legislative declaration of public policy which

the courts can do no less than respect." JM Arthur & Co. v. Burke, 83 Wash. 690,

693, 145 P. 974 (1915) (citing Thomas v. Price, 33 Wash. 459, 74 P. 563 (1903)).

Courts "will not, as a general rule, read into statutes of limitation an exception

which has not been embodied therein .... " Rushlight v. McLain, 28 Wn.2d 189,

199-200, 182 P.2d 62 (1947) (quoting 34 AM. JUR. Limitation of Actions § 186, at

150 (1941)).

       We do not believe that the administrative process can be used to provide a

way around the statute of limitations in this case. A federal district court case

provides an illustrative example. Ladzinski v. MEBA Pension Trust, 951 F. Supp.

570 (D. Md.), aff'd, No. 97-1237, 1997 WL 452237 (4th Cir. Aug. 11, 1997)

(unpublished). Ladzinski applied for his federally regulated pension benefits in

                                             20
Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



1972. !d. at 573. The responsible administrative board calculated his pension and

advised Ladzinski of his right to appeal if he disagreed with the calculation. Id.

Ladzinski filed an appeal of that decision in 1993. I d. Despite that appeal coming

over 20 years after the initial decision, the board heard it and denied it.      Id.

Ladzinski then appealed that denial to the United States District Court in 1996. Id.

Ladzinski argued that the board's recent determination of his administrative appeal

made his appeal to the district court timely. Id. at 574 n.l. The district court

disagreed. It explained that the administrative process cannot overcome the statute

of limitations, and "the purpose of the statute of limitations would be defeated if

Ladzinski were able to preserve his ... action indefinitely." Id.

       Here, CMS seeks mandamus for the express purpose of reaching back

beyond the legal statute of limitations. We do not think the statute of limitations

can be overcome by such a use of the administrative process.             Under the

circumstances of this case, we hold that CMS cannot choose first to pursue

recovery through the courts, and then attempt to bypass the statute of limitations

that necessarily applies as a result of that choice by seeking relief through the

administrative process. We therefore reverse the Court of Appeals on this issue

and hold that the trial court erred in granting CMS' s petition for a writ of

mandamus.

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Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8



                                     CONCLUSION

       The Court of Appeals correctly held that CMS was not required to exhaust

administrative remedies in this case because none were available: without a

response by Lakewood to CMS's refund claim, there was no other administrative

step for CMS to take. We clarify, however, that the exhaustion requirement is not

vitiated by the fact that the superior court has original jurisdiction over a claim.

Instead, in this case, it was vitiated by Lakewood's inaction. Finally, we hold that

the trial court erred in granting CMS 's petition for a writ of mandamus under the

circumstances of this case. Therefore, the Court of Appeals is affirmed in part and

reversed in part, and the case is remanded to the trial court for further proceedings

consistent with this opinion.




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Cost Mgmt. Servs., Inc. v. City of Lakewood, et al.
No. 87964-8




WE CONCUR:




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