                                                                    FILED
                                                                NOVEMBER 10,2015
                                                              In the Office ofthe Clerk of Cou rt
                                                            WA State Court of Appeals, Division III

              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

ERIC BURT, GARY EDWARDS,                         )
SHERRY HARTFORD, JOANN IRWIN,                    )   No. 31560-6-111
JOHN MOORE, CLIFFORD PEASE,                      )   (consolidated with
DAVID SNELL, HAROLD SNIVELY,                     )   No. 31559-2-111)
ALAN WALTER, DUSTIN WEST,                        )
PAUL-DAVID WINTERS, CHERI                        )
STERLIN, LAURA COLEMAN,                          )
CHARLES CROW, RICHARD "JASON"                    )   PUBLISHED OPINION
MORGAN,                                          )
                                                 )
                        Plaintiffs,              )
                                                 )
         v.                                      )
                                                 )
WASHINGTON STATE DEPARTMENT                      )
OF CORRECTIONS,                                  )
                                                 )
                        Respondent,              )
                                                 )
ALLAN PARMELEE,                                  )
                                                 )
                        Appellant.               )
                                                 )
MARK ABBOTT, et al.,t                            )
                                                 )
                        Plaintiffs,              )
                                                 )
         v.                                      )
                                                 )
WASHINGTON STATE DEPARTMENT                      )
OF CORRECTIONS,                                  )
                                                 )
                        Respondent,              )
                                                 )
ALLAN PARMELEE,                                  )
                                                 )
                        Appellant.               )



t   See Appendix for a list of all plaintiffs.
No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorr.


       SIDOOWAY, C.J. - The late Allan Parmelee, while incarcerated in the Washington

State Penitentiary, persuasively argued to the Washington Supreme Court that public

record requestors like himself are necessary parties when third parties seek to enjoin

agencies from responding to requests under the Public Records Act (PRA), chapter 42.56

RCW. As a result, two cases that Washington Department of Corrections (DOC)

employees brought to enjoin their employer from releasing personal information to Mr.

Parmelee were remanded to the Walla Walla Superior Court with directives to add Mr.

Parmelee as a party.

       By the time of the remands, the legislature had broadened the authority of courts

to enjoin vexatious public record requests from inmates, and the Thurston County

Superior Court had exercised that authority to enjoin Mr. Parmelee from making any

request for information on DOC employees for five years. As a result, both of the

remanded cases were dismissed. In dismissing the cases, the trial court denied Mr.

Parmelee's request for an award of attorney fees and costs.

       On appeal, Mr. Parmelee's estate does not challenge dismissal of the actions but it

does argue that it is entitled to recover attorney fees and costs. But the rule of equity

under which a party can recover fees incurred in dissolving an injunction applies to

dissolving wrongful interlocutory injunctions, and no interlocutory injunction was

entered in these cases nor would one be. For that reason, and because the trial court did




                                              2

No. 31560-6-II1 (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorr.


not abuse its discretion in finding that Mr. Parmalee came into court with "unclean

hands," we affirm.

                     FACTSANDPROCEDURALBACKGROlmD

       Alan Parmelee was an inmate incarcerated in Washington corrections facilities at

times relevant to this appeal. He passed away in October 2013, while in the custody of

the DOC, and this action is being pursued by his estate.

       The consolidated cases before us are lawsuits brought by DOC employees to

enjoin their employer's release of personal information to Mr. Parmelee. Eric Burt was

the lead plaintiff in the first lawsuit and Mark Abbott was the lead plaintiff in the second.

At issue in this appeal are proceedings that took place after Mr. Burt's lawsuit was

remanded to the superior court following the Washington Supreme Court's decision in

Burtv. Washington State Department ofCorrections, 168 Wn.2d 828, 231 P.3d 191

(2010) and after Mr. Abbott's lawsuit, which this court stayed pending a decision in Burt,

was remanded to the superior court following our unpublished decision in Parmelee v.

Washington State Department ofCorrections (Abbott) I ,noted at 161 Wn. App. 1015,

2011 WL 1631722 (2011).

       Events that had earlier transpired in those lawsuits and in the DOC's Thurston




       1 We refer to this decision as "Abbott" to distinguish it from other appellate
decisions, discussed hereafter, whose case names include "Parmelee."



                                              3

No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III)
Burt v. Dep 't ofCorr.


County lawsuit against Mr. Parmelee are relevant to the issues on appeal. We start with

the history of the three lawsuits predating the 2010 and 2011 remands.

                       I. 	 Proceedings Before the 2010 and 2011 Remands

                       Burt v. Washington State Dep't of Corrections
                     Walla Walla Superior Court Case No. 05-2-00075-0
                                  Filed January 26, 2005

          Eric Burt and 10 other employees of the DOC filed suit in 2005 to obtain a

protective order enjoining their employer from responding to a public records request

filed by Mr. Parmelee in October 2004. Mr. Parmelee's request sought photographs of

the employees and their addresses, incomes, retirement and disability information,

administrative grievances or internal investigations of the employees, and "any

documents not previously listed above, related to the persons listed above." Clerk's

Papers (CP) at 99.

          The employees' complaint cited Mr. Parmelee's criminal background, which

included his current offense-two counts of (retaliatory) first degree arson-for which he

had received an exceptional sentence; and his history of using information obtained under

the PRA for harassment purposes. The department responded with its own memorandum

in support of granting the protective order requested by its employees. Burt, 168 Wn.2d

at 830.

          The trial court granted the employees' request for an injunction under former

RCW 42.17.330 (1992) (recodified as RCW 42.56.540 by LAWS of2005, ch. 274, § 103,



                                               4

No. 31560-6-111 (consolidated with No. 31559-2-111)
Burt v. Dep't 0/ Corr.


effective July 1,2006)) and permanently enjoined release of the requested records. It

found that Mr. Parmelee "has a history of attempting to obtain personal information

against anyone who opposes his wishes to use it to harass, intimidate, threaten and

slander victims and their families." CP at 99. It also found that a letter from Mr.

Parmelee intercepted by penitentiary staff had sought home addresses of employees of

the Washington State Penitentiary so that Mr. Parmelee could have "some big ugly dudes

come to Walla Walla for some late night service of these punks. Obviously some show

of muscle needs to be sent." Id. The court concluded that examination of the records by

Mr. Parmelee "would not be in the public interest" and would "substantially and

irreparably damage" the employees and "the vital governmental function of operating

safe and secure prisons." Id. at 100.

       When Mr. Parmelee learned that the trial court had enjoined any response to his

request, he filed a limited notice of appearance seeking to intervene in the action and

seeking reconsideration. The trial court denied his motion. This court affirmed, rejecting

Mr. Parmelee's argument that he was an indispensable party under CR 19(a). Burt V.

Wash. Dep't o/Corr., 141 Wn. App. 573,575, 170 P.3d 608 (2007), rev'd by Burt V.

Dep't o/Corr., 168 Wn.2d 828, 231 P.3d 191 (2010).




                                             5

No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep't o/Corr.


       Mr. Parmelee petitioned for review by the Washington Supreme Court, which was

granted. In a plurality decision/ the Supreme Court reversed this court, holding that Mr.

Parmelee was a necessary party to the injunction proceeding because no other party

represented his interest. Burt, 168 Wn.2d at 836-37. As the opinion for the plurality

observed, "with both the DOC and the employees opposing disclosure, no party to the

action was a proponent of disclosure. . .. The only person who wanted to see the records

disclosed in this case was the person left out of the action, Mr. Parmelee." Id. at 835-36.

The court dissolved the injunction and remanded with directions that Mr. Parmelee be

joined as a party.

       The plurality declined Mr. Parmelee's request for attorney fees and costs under

RCW 42.56.550(4) and the equitable right to attorney fees for dissolving a wrongful

injunction, noting that it was not resolving whether Mr. Parmelee was entitled to the

records requested or determining whether the injunction was wrongfully issued. Id. at

838.




       2    Five justices agreed that Mr. Parmelee was a necessary party to the injunction
  proceeding. Burt, 168 Wn.2d at 829, 839 (Sanders, J., concurring). The four justice
  plurality concluded Mr. Parmelee was not entitled to sanctions based on the employees' 

  failure to provide their addresses and signatures with the pleadings, given that they were 

. seeking protection from disclosure of this very information under RCW 42.56.540. Id. at 

  837. The concurring justice would have awarded sanctions. Id. at 840.



                                              6

No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III)
Burt v. Dep 't 0/ Corr.


                              Abbott v. Dep't of Corrections
                     Walla Walla Superior Court Case No. 06-2-01016-8 

                                 Filed December 19, 2006 


       In December 2006, Mark Abbott and 646 other employees of the DOC filed a

petition for temporary restraining order and permanent injunction seeking to enjoin the

DOC from releasing their personal information to Mr. Parmelee. The trial court granted

the motion for a permanent injunction in January 2007, refused to allow Mr. Parmelee to

intervene, and Mr. Parmelee appealed. Mr. Parmelee moved this court to stay his appeal

pending the Supreme Court's resolution of Burt, and given the similarity of the two cases,

his motion was granted. See Abott, 2011 WL 1631722 at *2 (2011).

       After the Supreme Court decided Burt, this court vacated the trial court's

injunction in Abbott and remanded with directions that Mr. Parmelee be joined as a party.

Abbott, 2011 WL 1631722, at * 1. The court rejected a fee request, stating "it would be

premature to award fees" under RCW 42.56.550(4). Id. at *3.

                             Dep't of Corrections v. Parmelee
                     Thurston County Superior Court No. 09-2-02079-2
                                 Filed January 29, 2007

       In 2009, our legislature enacted S.B. 5130, Laws 0/2009, ch. 10, § 1, codified at

RCW 42.56.565, to address abusive requests for public records by inmates. The statute

authorizes courts to enjoin the inspection or copying of even nonexempt public records

by persons "serving criminal sentences in state, local, or privately operated correctional

facilities" if the court finds



                                              7

No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorr.


             (i) The request was made to harass or intimidate the agency or its
       employees;
               (ii) Fulfilling the request would likely threaten the security of correctional
       facilities;
               (iii) Fulfilling the request would likely threaten the safety or security of
       staff, inmates, family members of staff, family members of other inmates, or any
       other person; or
              (iv) Fulfilling the request may assist criminal activity.

RCW 42.56.565(2)(c). The statute authorizes courts to enjoin future requests by the same

requestor for a reasonable period of time. RCW 42.56.565(4); Burt, 168 Wn.2d at 837

n.9.

       Following the 2009 legislation, the DOC, along with the state Office of the

Attorney General, petitioned the Thurston County Superior Court for injunctive relief

against Mr. Parmelee. Following a hearing, in November 2009 the court entered seven

pages of findings from which it concluded that the DOC and the Attorney General had

proved every one of the four alternative statutory bases for enjoining an inmate from

inspecting or copying public records. It enjoined Mr. Parmelee from "inspecting,

copying, or receiving records not yet provided to him that are responsive to any and all

PRA requests he has submitted to the Department of Corrections, the Attorney General's

Office, or any other agency of the State of Washington." CP at 35. It further provided

that the DOC and other state agencies "have no obligation under the PRA to further

search for, preserve, or in any other way process records responsive to Mr. Parmelee's

PRA requests." CP at 36.



                                              8

No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III)
Burt v. Dep't ofCorr.


                       II. Proceedings Following the 2010 and 2011 Remands

       Following the remands of Burt and then Abott, Mr. Parmelee moved to dismiss

both complaints on the grounds that the DOC employees' complaints failed to identify a

specific statutory exemption justifying nondisclosure, which he contended was essential

under the PRA. He argued he was entitled to attorney fees and costs in both cases for

dissolving a wrongfully entered injunction. He also argued that the DOC should be

required to pay his costs because it had misled the trial court as to applicable law.

       In its response, the DOC agreed that both cases should be dismissed, but based on

the five-year injunction issued by the Thurston County Superior Court. The DOC also

argued that Mr. Parmelee should not be granted equitable attorney fees both because the

law relating to injunctions under the PRA was not as clear as he contended and because

Mr. Parmelee came into court with "unclean hands." CP at 18-22.

       The Walla Walla Superior Court heard argument of the post-remand issues in Burt

and Abbott in a consolidated hearing. It denied Mr. Parmelee's motion to dismiss and

granted the DOC's. It denied Mr. Parmelee's request for attorney fees based on its

written finding that the "equities balanced out" or, as the court stated when it orally ruled,

"I don't think either side has clean hands." CP at 91; Report of Proceedings (RP) at 12.

       Mr. Parmelee appealed the trial court's denial of his request for attorney fees and

costs in both cases.




                                              9
I

I

I
J
     No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III) 

     Burt v. Dep 't ofCorr. 




I                                             ANALYSIS

            Under the American rule, parties must generally pay their own attorney fees. The


I    rule is subject to exceptions for a contractual or statutory right to fees or a "recognized

     ground of equity." Hsu Ying Li v. Tang, 87 Wn.2d 796, 797-98, 557 P.2d 342 (1976).

     Equitable exceptions to the American rule include "misconduct or bad faith by a party"

     and "the dissolution oftemporary restraining orders or injunctions when wrongfully

     issued." RustlewoodAss'n v. Mason County, 96 Wn. App. 788,801,981 P.2d 7 (1999);

     Pub. Uti!. Dist. No.1 v. Kottsick, 86 Wn.2d 388, 390, 545 P .2d 1 (1976).

            Mr. Parmelee's estate invokes both of these equitable exceptions.

                                   Wrongful issuance ofirljunction

            "[A] trial court, in exercising its discretion, may award attorney fees ... when a

     party prevails in dissolving a wrongfully issued injunction or temporary restraining

     order." Cornell Pump Co. v. City ofBellingham, 123 Wn. App. 226,232, 98 P.3d 84

     (2004) (citing Confederated Tribes ofChehalis Reservation v. Johnson, 135 Wn.2d 734,

     758,958 P.2d 260 (1998)); 15 KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL

     PROCEDURE § 44:33, at 280 (2d ed. 2009) ("The defendant is not entitled to attorney fees

     [incurred in dissolving a preliminary injunction] as a matter of right. The award is

     discretionary with the court."). "A trial court has abused its discretion if its decision is

     manifestly unreasonable or based on untenable grounds." Morgan v. City ofFed. Way,

     166 Wn.2d 747,758,213 P.3d 596 (2009).



                                                   10
No. 3 1560-6-III (consolidated with No. 3 1559-2-III)
Burt v. Dep 't o/Corr.


       The PRA's injunction statute, RCW 42.56.540, provides that

       [t]he examination of any specific public record may be enjoined if, upon
       motion and affidavit by ... a person who is named in the record or to
       whom the record specifically pertains, the superior court ... finds that such
       examination would clearly not be in the public interest and would
       substantially and irreparably damage any person, or would substantially and
       irreparably damage vital governmental functions.

RCW 42.56.540.

       While the statute provides an injunction remedy and dictates the showing required,

it does not address the procedure to be followed. The procedure for obtaining

interlocutory injunctions is governed by CR 65 and chapter 7.40 RCW. Under the court

rule, the statutes, and other rules and statutes relating to final judgments, a third party

seeking to enjoin an agency from disclosing or releasing a public record may seek a

temporary restraining order, a preliminary injunction or a permanent injunction-or, at

different stages, two of the remedies, or all three.

       Northwest Gas Ass 'n v. Washington Uitlities and Transportation Commission, 141

Wn. App. 98, 168 P.3d 443 (2007) is illustrative. In Northwest Gas, the Washington

utilities and transportation commission (WUTC) notified gas pipeline companies of

public record requests it had received for records containing highly detailed data on the

location of the companies' pipelines. The WUTC notified the pipeline companies that it

would release the records unless the requests were withdrawn or an injunction was

obtained. 141 Wn. App. at 109. The pipeline companies acted: they first obtained




                                              11 

No. 31560-6-111 (consolidated with No. 31559-2-111)
Burt v. Dep 't ofCorr.


temporary restraining orders, at which time the superior court scheduled preliminary

injunction hearings. The pipeline companies contemplated that sometime following the

preliminary injunction hearing, there would be a trial addressing their request for

permanent injunction relief. 141 Wn. App. at 109-10. The trial court denied the

companies' request for a preliminary injunction at the hearing on that motion and at the

same time ordered the WUTC to disclose the requested records.

       Our court granted accelerated review, agreeing with the pipeline companies that

by ordering disclosure of the records the trial court had conflated permanent injunctive

relief with preliminary injunctive relief. The court explained the intended operation of

CR65:

       The process generally progresses from temporary restraining order, to
       preliminary injunction, to permanent injunction. CR 65(a)(2) provides,
       however, that "[b]efore or after the commencement of the hearing of an
       application for a preliminary injunction, the court may order the trial of the
       action on the merits to be advanced and consolidated" with the preliminary
       injunction application hearing. [(quoting CR 65(a)(2))]. But "[i]f [a] court
       does not expressly state that it is consolidating the injunction hearing and a
       trial on the merits, it may not render a final determination on the merits."

141 Wn. App. at 113 (some alterations in original) (quoting League of Women Voters v.

King County Records, Elections & Licensing Servs. Div., 133 Wn. App. 374, 382, 135

P.3d 985 (2006)). The purpose of the rule, as the court explained, is "to give the parties

notice and time to prepare so that they will have a full opportunity to present their cases

at the permanent injunction hearing." Id. at 114; accord Ameriquest Mortg. Co. v. Atty.




                                             12 

No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorr.


Gen., 148 Wn. App. 145, 155-56, 199 P.3d 468 (2009) (trial court similarly conflated the

preliminary injunction hearing with a full hearing on the merits).

       In seeking attorney fees for dissolving a wrongful injunction, Mr. Parmelee relies

on cases that-unlike Burt and Abbott-involve interlocutory injunctions wrongfully

obtained under CR 65 before the parties' dispute can be resolved on the full merits. The

rule of equity under which a party may recover fees incurred in dissolving a wrongful

injunction recognizes a unique harm that is suffered when a party's freedom to act is

constrained before a trial court is presented with all of the parties' evidence and

argument. The rule "does not entitle a successful defendant to recover all attorney's fees

incurred in defending against injunctive relief." Ritchie v. Markley, 23 Wn. App. 569,

575,597 P.2d 449 (1979) (emphasis added), overruled on other grounds by Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801,823,828 P.2d 549 (1992». Rather,

       Its purpose is to deter plaintiffs from seeking unnecessary preliminary
       injunctions or restraining orders pending trial, and accordingly it
       authorizes recovery only of those fees which a defendant incurs in
       dissolving a wrongfully issued preliminary injunction or restraining order.

Id. (emphasis added and omitted). "A temporary restraining order is 'wrongful' if it is

dissolved at the conclusion of a full hearing." Ino Ino, Inc. v. City ofBellevue, 132

Wn.2d 103,143,937 P.2d 154 (1997). Attorney fees also cease to be recoverable if a

temporary restraining order is dissolved by agreement, by a motion and hearing, or where

a preliminary injunction is dissolved by trial on the merits. Id.




                                             13 

No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep 't o/Corr.


       In an action under the PRA injunction statute, the proceeding at which the trial

court makes its final determination whether or not the records will be required to be

disclosed is the proceeding on the merits, whether it is a trial or a hearing. This was

illustrated in Franklin County Sheriff's Office v. Parmelee, 175 Wn.2d 476, 285 P.3d 67

(2012). In that case, the superior court initially enjoined one of Mr. Parmelee's requests

for records without giving Mr. Parmelee a chance to respond but was persuaded by Mr.

Parmelee to set aside its permanent injunction. It then entered a temporary restraining

order preventing the agency from releasing records pending a permanent injunction

hearing. 175 Wn.2d at 478-79. The sheriffs office appealed the temporary restraining

order, which the Supreme Court held was premature, explaining:

       Importantly, at that [permanent injunction] hearing, the trial court would
       have determined whether the records were exempt from disclosure based on
       the information in the records in relation to the statutory inquiry. Without
       knowing the contents of the records, no basis would exist for the trial court
       to determine the additional "public interest" and harm findings under RCW
       42.56.540.

Id. at 480-81.

       Federal Way Family Physicians, Inc. v. Tacoma Stands Up/or Life, 106

Wn.2d 261,268,721 P.2d 946 (1986) demonstrates that the wrongfulness of an

injunction is always determined in the trial court, because it always concerns only

interlocutory relief. In Stands Up, the court held that a party's right to attorney

fees for quashing a temporary restraining order at the preliminary injunction stage




                                              14 

No. 31560-6-111 (consolidated with No. 31559-2-111)
Burt v. Dep 't ofCorr.


       should abide the outcome of the hearing on the merits. If, after taking
       additional evidence, the trial court concludes that a permanent injunction
       should not issue, the trial court should award petitioners their fees for
       prosecuting this appeal. On the other hand, if respondents prevail on the
       merits, petitioners' request for fees must be denied.

Id. at 268. As one author has explained, "With the grant of a permanent injunction, the

anticipatory relief given the plaintiff is lifted, and he is in a class with all other litigants.

Injuries suffered after a final injunction should be no more ascribed to him than were he

to have gotten no preliminary relief." Note, Interlocutory Injunctions and the Injunction

Bond, 73 HARV. L. REv. 333, 346 (1959).

       Washington decisions addressing which fees can be recovered are in accord and

hold that recoverable fees are limited to those incurred during the time period that begins

with entry of a temporary restraining order or preliminary injunction and ends with the

determination that the records are not exempt from production and must be disclosed. If

fees are awarded based on the rule of equity in a public records action, "they would be

limited to those necessary to dissolve the temporary restraining order, not those

connected with the appeal." Johnson, 135 Wn.2d at 759 (denying fees to party who

prevailed before Supreme Court as to the nonexempt status of gambling commission

records whose disclosure certain Indian tribes had sued to enjoin). Cf Gander v. Yeager,

167 Wn. App. 638,649-50,282 P.3d 1100 (2012) (recognizing that where a permanent

anti-harassment order is appealed after trial, the rule "allowing for attorney fees as




                                                15 

No. 31560-6-111 (consolidated with No. 31559-2-111)
Burt v. Dep 't ofCorr.


damages where a party is forced to litigate in a trial on the merits, focused solely on

vacating a temporary injunction, does not apply").

          Our Supreme Court denied an award of fees in Burt, ruling, as we did in Abbott,

that fees mayor may not become available under the rule of equity, depending on future

proceedings following remand. Dismissal of the complaints put an end to any possibility

that an interlocutory injunction would be wrongfully entered and later dissolved at a trial

or hearing on the merits. There was no basis for an award of fees under the equitable

rule. 3

                                   Misconduct or badfaith

          The Parmelee estate's argument that misconduct or bad faith supports an award of

fees is predicated on DOC's alleged characterization of Dawson v. Daly, 120 Wn.2d 782,

794, 845 P.2d 995 (1993), abrogated in part by Progressive Animal Welfare Society v.

University of Washington (PAWS), 125 Wn.2d 243,884 P.2d 592 (1994), as establishing

that a court may enjoin production of a public record without determining that it falls

within a specific statutory exemption from the PRA. The estate argues that this was a


       3 Fees could sometimes be recovered in PRA injunction cases under former RCW
42.17.340(4), which provides that a person who prevails in an action to inspect a public
record "shall be awarded all costs, including reasonable attorney fees, incurred in
connection with such legal action." However, the provision does not authorize an award
offees in action brought by a private party to prevent disclosure of public records held by
an agency that has agreed to release the records but is prevented from doing so by court
order. E.g., Tiberino v. Spokane County, 103 Wn. App. 680,692, 13 P.3d 1104 (2000).
No issue of entitlement to fees under former RCW 42.17.340 is before us.



                                              16
No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III)
Burt v. Dep 't ofCorr.


deliberate mischaracterization of the law in light of PAWS, decided the year after

Dawson. Our inherent equitable powers authorize the award of attorney fees in cases of

bad faith. In re Recall ofPearsall-Stipek, 136 Wn.2d 255, 266-67, 961 P.2d 343 (1998).

We review a trial court's decision to award or deny attorney fees for abuse of discretion.

Id. at 265.

       In rejecting Mr. Parmelee's allegations of litigation misconduct by the State, the

trial court acknowledged that "the Department maybe messed up" but, with some

explanation, announced, "I don't think either side has clean hands, and I'm denying

attorney fees." RP at 11-12.4 "It is well settled that a party with unclean hands cannot

recover in equity." Miller v. Paul M Wolff Co., 178 Wn. App. 957, 965, 316 P.3d 1113

(2014).




        4 As Division Two of this court observed in a separate case involving Mr.
Parmelee, the holding in PAWS is not as straightforward as the estate argues. See
DeLong v. Parmelee, 157 Wn. App. 119, 151,236 P.3d 936 (2010), dismissed on
remand, 164 Wn App. 781, 267 P.3d 410 (2011).
        And before a court may impose attorney fees as a sanction under its inherent
authority, it must make a finding that the conduct was at least "tantamount to bad faith."
State v. Gassman, 175 Wn.2d 208,211,283 P.3d 1113 (2012) (internal quotation marks
omitted) (quoting State v. S.H, 102 Wn. App. 468, 474,8 P.3d 1058 (2000)). In this
context, "the definition of badfaith is fairly narrow and places a significant burden on the
party claiming attorney fees." 14A KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL
PROCEDURE § 37:14, at 672-73 (2d ed. 2009). A trial court abuses its discretion in
awarding attorney fees as sanctions where the trial judge finds only "careless" action by
an attorney, as appears could have been the court's view here ("maybe messed up").




                                             17 

No. 3 I 560-6-III (consolidated with No. 3 I 559-2-III)
Burt v. Dep 't ofCorr.


       The trial court discussed the four-member dissent in Burt in its oral ruling, in

which the dissenters criticized Mr. Parmelee and his motives. The estate complains that

the record available to the dissenters was of proceedings from which he had been

wrongly excluded. But Mr. Parmelee was a party to the Thurston County proceeding that

enjoined him from requesting department records for five years, and the findings,

conclusions and order in that proceeding-which are preclusive as to Mr. Parmelee­

were squarely before the trial court as the basis for dismissing the actions. The findings

of the Thurston County Superior Court provide ample support for the trial court's

determination that Mr. Parmelee's stated reason for seeking personnel records of DOC

employees was to harass them, the motive that was the basis for the trial court's finding

of unclean hands.

       Affirmed.

                                                      :J;VouJ%=.,~
                                                    Siddoway, CJ.

WE CONCUR:




                                                    Fearing, J.




                                             18 

No. 31560-6-III (consolidated with No. 31559-2-111)
Burt v. Dep 't o/Corrections
Appendix




                                     APPENDIX 


                         LIST OF ALL NAMED PLAINTIFFS 

                                  No. 31559-2-III 


M. ABBOTT, C. ABEL, C. ABERNATHY, A. ADAMS, L. ADAMS, T. ADAMS,
1. ALEJANDRE, D. ALEXANDER, C. ALLEN, B. ALLESSIO, R. ALEXANDER,
T. AlLINGTON, A. ALVARADO-JACKSON, C. ANDERSON, K. ANDERSON-BENNETT,
M. ANDRING, A. ANGOTTI, J. ANTHONY, M. ARBUCKLE, A. ARIETA, J. ARMES,
E. ARMES, M. ARROYO, R. ARMSTRONG, J. ATTEBERRY, J. ATWOOD, J. AVERY,
D. AVILA, A. AYALA, D. AYCOCK, A. BAILEY, 1. BAILEY, R. BAKER, S. BARKER,
D. R. BASE SR., D.R. BASE II, J. BASE, M. BATES, E. BAUMANN, C. BAUSTIAN, D.
BAYER, R. BEAL, S. BECK, K. BELANGER, L. BELANGER, R. BELKNAP,
G. BENAVIDES, D. BENDIXSEN, D. BENFIELD, A. BENNETT, J. BENNETT,
T. BENNETT, G. BENSON, 1. BICKFORD, W. BID DISC OMBE, L. BIEGHLER,
G. BIRDWELL, K. BIRDWELL, B. BISCONER, K. BLEVINS, K. BLODGETT, C. BL Y,
D. BLY, T. BOHANAN, G. BOOTH, R. BOWE, C. BOWMAN, M. BRADLEY,
R. BRANSCUM, D. BRASHEAR, G. BRASHEAR, D. BRELAND, K. BRODHEAD,
G. BROOKS, A. BROWN, F. BROWN, G. BROWN, 1. BROWN, K. BROWN, T. BROWN,
W. BROWN, C. BRUCE, C. BULL, K. BURNS, 1. BURRES, E. BURT, J. BURT, K. BURT,
M. BUTLER, S. CALKINS, H. CALLAHAN, C. CAMPO, J. CAMPOS, T. CARD,
F. CARRANZA, S. CARROL, A. CASEY, C. CARSON, J. CAS BEER, R. CASE,
E. CASTILLO, C. CAUGHRON, J. CAVANESS, J. CERNA, M. CHAFFEY, R. CHANEY,
T. CHANEY, J. CHAPPELL, D. CHLIPALA, D. CHRISTENSEN, J. CHRISTY, C. CLARK,
G. CLARK, L. CLARK, M. CLARK, B. CLARKE, B. CLIFTON, K. CLOUGH, D. COBLE,
1. COERS, 1. COLEMAN, L. COLEMAN, I. COLIN, 1. COLL, R. COLLINS, W. COOKE,
D. COOKE, C. COOPER, J. COON, K. CORN, R. CORNELL, D. COTTON, H. COTY,
J. COURTNEY, C. COVARRUBIAS, C. COWDEN, J. CRAIG, M. CRAIG, T. CRAMER,
E. CREWSE, S. CRIDER, L. CROSS, R. CROSS, M. CROUSER, C. CROW, A. CRUZ,
W. CYTANOVICH, J. DAGGETT, E. DAHLIN, D. DANLY, D. DAUDT,
K. L. DAVENPORT, K. D. DAVENPORT, H. DAVIN, H. DAVIS, K. DAVIS, E. DAY,
S. DE LEON, H. DELGADO, D. DELP, J. DEMORY, D. DESMOND, R. DESMOND,
D. DESTITO, J. DEVEREAUX, J. DEVOIR, J. DILL, R. DILLA, R. DIXON, R. DODD,
T. DODDS, D. DOLL, B. DONE, E. DOWNS, B. DRASKOVIC, D. DUGGER,
A. DUNlEAVY, J. DUNLEAVY, G. EATON, F. EDINGER, A. EGAN-FIELDS, S. ELLIOTT,



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No. 31560-6-III (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorrections
Appendix


D. ELLISON, C. EMERICK, W. END, T. ENTROP, K. ERB, R. ERBENICH, B. ERICKSON,
E. ERICKSON, ED. ESCAPULE, ER. ESCAPULE, L. ESTES, M. ESTES, D. EVANS,
P. FAIRLEY, R. FARROW, T. FAUVER, D. FEDDERSON, C. FERRIS, R. FIElDS,
A. FIGUEROA, JO. FISCHER, JU. FISCHER, D. FLEENOR, S. FLEENOR, A. FLARES,
K. FORBES, K FORSS, R. FORSS, M. FORSTER, B. FRAIRE, B. FRANKLIN, H. FREER,
C. FRENCH, M. FRENCH, S. FRERICHS, N. FROST, J. FRY, T. GABEL, D. GAINES,
R. GAINES, S. GAINES, V. GAINES, L. GALLAGHER, K. GALLEHER, F. GALLOWAY,
D. GANNAWAY, E. GARCIA, T. GARCIA, B. GARNER, H. GARRISON, M. GARZA,
V. GASAWAY, J. GASCON, L. GERBER, R. GIBSON, D. GIES, T. GIES, C. GILLESPIE,
D. GLEASON, P. GLEASON, A. GONZALEZ, M. GONZALEZ, B. GOODWIN,
R. GOODWIN, S. GOUCHER, D. GONDE, F. GOULD, O. GOULD, T. GOULD,
B. GRAHAM, C. GRAY, C. GRIMES, K. GRINDROD, T. GRINDSTAFF, M. GROGAN,
1. GUZMAN, M. HAGER, S. HAHN, W. HALE, S. HALING, B. HALL, S. HALL,
1. HALLSIED, C. HAMADA, J. HAMADA, W. HAMBY, B. HAMILTON, C. HAMM,
M. HANAN, J. HANES, R. HANSEN, B. HANSON, W. HANSON, T. HARMON,
S. HARMON, S. HARRIS, 1. HARTFORD, B. HATLEY, C. HAVENS, T. HEAD,
R. HEILBRUN, W. HEIMANN, L. HEINKEL, E. HEIRD, R. HENDERSON, B. HENDRIX,
B. HENRY, L. HERBST, M. HILL, G. HILL, R. HILLIS, M. HINOJOSA, K HOBBS,
H. HOBSON, C. HOERNER, G. HOFFMAN, D. HOLBROOK, D. HOLEVINSKI,
T. HOLLINGSWORTH, J. HOPPEN, D. HOPPEN, R. HOSSACK, M. HOUSE, C. HOWARD,
L. HOWERTER, R. HOWERTON, S. HNBBS, A. HUBBARD, R. HUBBARD, R. HUEIT,
D. HUMPHRYS, J. HNRLEY, S. HUSSEY, D. HUTCHERSON, A. HUTCHINS,
S. HUTCHINS, M. HUWE, F. IVEY, G. ISITT, S. ISITT, D. JACKSON, K. JACKSON,
R. JACKSON, S. JACOBSON, R. JACOBSON, J. JAMES, M. JAMES, G. JAMIESON,
L. JANTZ, D. JANSEN, R. JANZER, N. JAWIS, G. JENNINGS, C. JENSEN, R. JENSEN,
C. JERNEE, K. JERGENSEN, A. JESBERGER, K. JESSEE, F. JIMENEZ, C. JOHNSON,
L. JOHNSON, M. JOHNSON, C. JONES, L. JONES, R. JONES, C. JORDAN,
E. JORDAN, K. JORDAN, S. KARLSON, S. KEARSLEY, B. KELLY, S. KELSEY,
K. KIESZ, D. KIMBALL, J. KING, M. KING, P. KING, S. KING, B. KINMAN,
M. KLUNDT, R. KNIGHT, M. KNIGHTON, C. KNOEFLER, K. KNOWLTON, L. KOHLER,
D. KOZACHENKO, R. KRAUSE, M. KNCZA, A. KUNZ, K. LACKEY, M. LADUKE,
C. LANE, M. LANE, J. LANG, R. LAUTERBERG, B. LECHNER, A. LEE, H. LEE, A. LENZ,
J. LEONARD, P. LEONETTI, D. LEPIANE, K. LEROUE, S. LESIENR, L. LEWIS, D. LIEN,
R. LINDSAY, L. LINDSEY, J. LINSEY, L. LITERAL, M. LITCHFIELD, R. LOCATI,
W. E. LOEVENSTEIN II, G. LOGAN, W. LOGAN, C. LOGSDON, C. LOIACONO­
BROWNELL, M. LOIACONO, A. LOMELI, L. LOPER, S. LOWDER, K. LOYD, G. LUGO,
T. LUGO, D. LNNDGREN, L. LUNDGREN, S. LYONS, B. MAGUIRE, L. MAGUIRE,
E. MANTEL, W. MARCUM, M. MARION, S. MARTIN, J. MASON, P. MATHISON,
E. MCALVEY, D. MCCAW, J. MCDONALD, P. MCKEOWN, D. MCKINNEY,

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No. 31560-6-II1 (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorrections
Appendix


C. MCLAUGHLIN, J. MCMANN, B. NCNEIL, E. MEDUTIS, M. MELE, M. MELTON,
T. MELTON, R. MENDIOLA, E. MENDOZA JR., L. MERRILL, K. MESPLIE, C. MEYER,
J. MEYERJR., MI. MEYER, G. MEZA JR., R. MICHAEL, J. MILES, A. MILLER,
C. MILLER, J. MILLER, K. MILLER, S. MILLER, C. MILLS, S. MINGS, T. MINK,
K. MITCHELL, M. MITCHELL, B. MOLLER, A. MONROE, A. MONTOYA,
R. MOON, B. MOORE, P. MOORE, R. J. MORGAN, D. MORRIS, D. MORRISETTE,
F. MORRISETTE, T. MORRISON, R. MOSS, M. MOSS, J. MOULTON, C. MUNDEU,
J. MUNDEN, J. MUNGER, S. MURPHY, D. MURRAY, L. NEILL, DA. NEISSL,
DE. NEISSL, E. NEISSL, H. NEISSL, J. NEISSL, M. NEISSL, P. NEISWONGER,
J. NELSON, J. NETTLES, S. NETTLES, J. NENSCHWANDER, B. NEWELL, E. NEWTON,
R. NEWTON, K. NICHOLS, S. NEISNER, CAR. NOAL, CAT. NOAL, S. NOIROT,
J. NORED, D. O'BRIEN, D. OCANAZ, L. OCANAZ, P. O'CONNOR, C. ODELL,
C. OLIVARES-GARCIA, E. OLIVER, S. OLIVER, R. ORNELAS, D. OVERTURF,
M. OWENS, P. OWENS, M. PALMER, J. PALOMO, J. PARTLOW, R. PARR,
R. PARTRIDGE, B. PATZKOWSKI, T. PAOLINO, G. PARENT, L. PAUL, T. PAUL,
CH. PEASE, C. PEASE, M. PECK, D. PEDDICORD, J. PEDDICORD, G. PENROSE,
H. PENROSE, R. E. PERCIFIElD, P. PERRIN, J. PHILLIPS, G. PIERCE, R. PIERCE, J. PIES,
R. PIVER, A. PONTI, K. PONTI, M. PONTI, S. PONTI, W. PONTI, K. POTTER, C. POTTS,
K. POWERS, R. POYNTER, L. PRICE, E. PRYOR, L. PRYOR, N. PUCKETT, R. QUEEN,
1. QUINTAL, K. QUINTAL, A. RALLS, E. RAILS, M. RAMIREZ, G. RANDOLPH,
S. RANDOLPH, T. REDDEN, C. REDDISH, M. REDDISH, B. RENWICK, C. REISWIG,
T. REISWIG, M. REYES, M. REYNOLDS, B. RHODES, G. RICHARDSON, J. RICHMOND,
K. RIGGIN, P. RIMA, A. RIPPY, A. ROBERSOU, D. ROBERTS, L. ROBERTS,
D. ROBERTSON, G. ROBINSON, K. ROBINSON, 1. ROBLES, J. ROCK, C. ROCKWELL,
K. RODGERS, T. ROE, R. ROEDER, R. ROGERS, V. ROGERS, F. ROMINE, J. ROOP,
J. RORDEN, L. ROSE, R. ROSENDAHL, RE. ROYSE, RO. ROYSE, JAR. RUIZ,
JOS. RUIZ, M. SALTER, S. SAMITORE, R. SAMPSON, G. SAMS, J. SAMS,
R. SANCHEZ, B. SANDAU, L. SEAMAHORN, C. SCHMIDT, F. SCHMITS,
J. SCHUETZE, T. SCOTT, H. SCUDDER III, S. SEGRAVES, A. SEWEN, R. SERVEN,
B. SHAFFER, C. SHAMPINE, T. SHANNON, R. SHANNON, J. SHELTON,
R. SHUMATE, S. SINCLAIR, A. SILLER, S. SILLER, D. SKIDGELL, R. SLACK,
A. SLUSSER, P. SMALL, A. SMITH, C. SMITH, D. SMITH, G. SMITH, J. SMITH,
K. SMITH, M. SMITH, T. SMITH, W. SMITH, D. SNELL, H. SNIVELY, DA. SNYDER,
1. SNYDER, M. SOUTHERN, R. SPENCE, S. SPENCER, R. SPURGEON,
K. STEINBACK, L. STEINBACK, J. STEINLOSKI, C. STERLIN, S. STODOLA,
L. STOKES, S. STOKES, G. STUART, R. STONE, J. STRANG, M. STRANG,
K. SUCKOW, S. SUCKOW, S. SULLIVAN, J. SUMERLIN, C. SUMPTER,
S. SUNDBERG, D. SURRY, R. SWANSON, D. SWENSEN, V. SWORD, S. TAYLOR,


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No. 31560-6-II1 (consolidated with No. 31559-2-III)
Burt v. Dep 't ofCorrections
Appendix


P. TESKE, B. THOMPSON, D. A. THOMPSON, D. G. THOMPSON, D. S. THOMPSON,
C. THORPE,    TILLOTSON, G. TIMMS, J. TORRESCANO, B. TREADWAY,
D. TREADWELL, C. TREMBLEY, M. TURLEY, B. TURNER, M. UNCK,
C. UNGERECHT, 1. UTTECHT, E. VILLARO, D. WAGNER, M. WAGNER, N. WALDO,
D. WALKER, 1. WALKER, K. WALKER, V. WALKER, M. WALL, C. WALLINGFORD,
P. WALLINGFORD,D. WALTMAN, B. WARD, R. WARD, R. WARDLAW,
F. WARNEKA, S. WARREN, T. WARREN, D. WATKO, F. WATKO, L. WATSON,
W. WATSON, 1. WATTS, L. WATTS, C. WEAVER, D. WEAVER, L. WEAVER,
R. WEAVER, S. WEAVER, T. WEAVER, L. WEBER, S. WEBER, M WEISPFENNING,
D. WELLS, D. WEST, A. WESTERBUR, M. WHALEN, A. WHEELER, B. WHEELER,
W. WHIPPLE, B. WHITE, M. WHITE, C. WHITMORE, K. WICKHAM, E. WILBUR,
R. WILCOX, 1. WILLIAMS, M. WILLIAMS, R. WILLIAMS, W. WILLIAMS,
A. WILSON, C. WILSON, K. WILSON, T. WILSON, K. WINGER, P. WINTERS,
W. WOOD, D. WOOTON, S. WORDEN, L. YOBBAGY-FINN, L. YOUNG,
M. ZARAGOZA, R. ZARAGOZA, D. ZARNDT, K. ZEHNER, W. ZIER, D. ZIPF,
T. ZOHNER, M. ZUERCHER, W. ZUECHER, R. ZUVER




                                          22 

