                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         June 20, 2017



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 ARTHUR WEST,                                                        No. 48110-3-II

                                Appellant,

        v.

 PORT OF TACOMA,                                                 UNPUBLISHED OPINION

                                Respondent.


       LEE, J. — Arthur West appeals the superior court’s dismissal of a suit he brought against

the Port of Tacoma (the Port) in January 2008 that alleged Public Records Act (PRA) violations

from a December 2007 PRA request. The superior court dismissed the case pursuant to our holding

in Hobbs v. State, 183 Wn. App. 925, 335 P.3d 1004 (2014). On appeal, West argues that the

superior court err in dismissing his suit and in denying his motion to amend the complaint. Both

parties argue they are entitled to an award of fees and costs.

       We hold that Hobbs controls and the superior court did not err in dismissing West’s suit.

183 Wn. App. at 936. We do not consider whether the superior court erred in denying West’s

motion to amend because West did not appeal that order. Finally, we hold that the Port is entitled

to an award of fees and costs on appeal. We affirm the superior court’s order dismissing the suit.
No. 48110-3-II


                                               FACTS

A.       2007-2008: PUBLIC RECORDS REQUEST IS MADE AND SUIT IS FILED

         On December 4, 2007, West e-mailed a PRA1 request to the Port. The executive director

of the Port responded the same day, telling West that Andy Michels, risk manager for the Port,

would be handling the request. West’s PRA request said:

         Please regard this as a formal request for the following records under RCW 42.56.

         1. All records and communications concerning the South Sound Logistics Center
         [(SSLC)], from January 1, 2005 to present.

         2. All correspondence or communication with Diane Sontag.

         3. Any records related to potential transport of Uranium Hexaflouride [sic] through
         Thurston County or the SSLC.

         Thank you for your consideration.

Clerk’s Papers (CP) at 503.

         On December 6, Michels advised West “that the Port was gathering documents and that

the Port expected it would be December 21 before they would be available.” CP at 498.2

         On December 21, Michels sent West the following e-mail:

         I anticipated sending you computer disks of SSLC documents today to respond to
         your request. Due to the volume of documents I encountered unexpected
         difficulties in loading the documents to disks. I am continuing to work this problem
         and expect to respond with an initial set of documents shortly. Rather than wait for
         complete collection and review, I anticipate multiple distributions to you given the
         number of documents and the time required to review.


1
    Ch. 42.46 RCW.
2
  In his briefing, West states that there is no record of this communication, “so the [P]ort would
have trouble establishing this at trial,” but does not dispute that the communication took place. Br.
of Appellant at 16. West also does not allege that the Port failed to respond to his request within
the statutorily required five days.


                                                  2
No. 48110-3-II



CP at 504.

         On December 26, West requested information about the Port’s privilege log.3 Michels and

West communicated twice more that day.

         On December 31, Michels e-mailed West:

         This acknowledges your Public Record request and confirms the Port’s prior
         communications to you in response. Please know that due to [the] broad scope of
         your request and the large volume of records which may be responsive, the Port
         will require additional time to gather, review records and respond. We expect to
         respond to your request on or before January 10th, 2008.

CP at 505. The Port assigned an additional employee to the production of the records responsive

to West’s request. That additional employee spent five to six hours per day gathering, reviewing,

and processing the records.

         On January 2, 2008, the Port hired Sound Legal Technologies, a data production firm to

download the files of responsive records, organize the files in chronological order, and number the

records for tracking. Sound Legal Technologies had trouble accessing the Port’s server.

         On January 10, the Port’s attorney, Carolyn Lake, sent West an e-mail4 stating:

         On behalf of the Port of Tacoma, we again acknowledge your Public Record request
         and we follow up on the Port’s prior communications to you in response. Please
         know that due to [the] broad scope of your request and the large volume of records
         which may be responsive, the Port will require additional time to gather, review
         records and respond.

         Originally, we expect [sic] to respond to your request on or before January 10th,
         2008. However, the Port needs additional time to respond. We will respond
         incrementally as sets of responsive records are gathered, reviewed and are available


3
  West asserts in his briefing that these communications happened and Michels asserts in his
declaration that they happened. However, none of these communications are found in the record.
4
    This e-mail was sent at 8:38 PM on January 10.


                                                  3
No. 48110-3-II


       for release. We currently expect to release the first batch of responsive records on
       or before January 17, 2007.

       Please contact myself [sic] or Andy Michels at the Port if you have any question
       regarding this matter. Thank you.

CP at 506. Michels sent West an e-mail the next morning, January 11, that reiterated:

       Mr. West - I know that Ms[.] Lake sent you an email last night acknowledging that
       due to the volume of documents the Port will need additional time to respond to
       your request. I want to affirm her comments with this email.

       We currently expect to release the first batch of responsive records on or before
       January 17, 2007.

       Please contact me if you have any question regarding this matter. Thank you.

CP at 507.

       On January 14, West filed this suit against the Port. The suit alleged the Port had refused

to comply with the PRA and had acted in bad faith. West’s causes of action stated that the Port

(1) “illegally and unconstitutionally violated RCW 42.56,” (2) “created a cause of action for

[d]eclaratory relief,” (3) was negligent, and (4) potentially violated the “Harbor improvement Act.”

CP at 4.5 The complaint requested relief in the form of “an order . . . declaring that defendant Port

of Tacoma violated the PRA and their self imposed [sic] duty of transparency, and compelling

disclosure of all requested records, and assessing penalties and costs.” CP at 5. West also filed a

motion for a show cause hearing regarding “why the requested records should not be disclosed.”

CP at 1202.




5
  West does not present any argument in his briefing regarding the superior court’s dismissal of
the causes of action he lists in paragraphs 4.2-4.4 of his complaint. Accordingly, we do not address
them. RAP 10.3(a)(6); West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012)
(declining to consider issues that were not argued in the briefing).


                                                 4
No. 48110-3-II


       On January 16, Sound Legal Technologies delivered a complete copy of the responsive

documents to the Port. The next day, the Port told West that it expected to release the first batch

of responsive records on or before January 24. Another e-mail notified West that the Port expected

these records would be available on January 28.

       By January 22, the Port had gathered 47 volumes of responsive records, with each volume

contained within a 3-inch binder. Of those 47 volumes, 19 consisted of “various documents,”

totaling 8,602 pages, and 28 volumes consisted of e-mails, totaling 10,336 pages.

       On January 29, West reviewed the first set of records that the Port produced. West

identified some of the records at the time as ones he would like to copy.

       On February 8, the Port responded to the suit. The Port argued that the suit filing was

premature because the Port was responding to West’s public records request.

       On February 11, the Port transmitted to West a privilege log pertaining to the first 15 of 47

volumes of responsive records.

       By March 26, the Port had made 13 volumes of records available for West to review. At

that time, Michels stated that 18 additional volumes “will be shortly available, and 16 volumes are

pending review by legal counsel and staff.” CP at 545.

       On March 28, West and the Port appeared in Pierce County Superior Court on West’s

motion for a show cause hearing. The superior court denied West’s motion because it was

premature. The superior court further ruled, and the Port agreed, that the public records and

privilege logs for the volumes identified as “Final or Near Release” on an index attached to the

order would be made available by April 15, 2008, and that the remainder of the records or privilege

logs would be available by May 1, 2008.



                                                  5
No. 48110-3-II


       On April 15, the Port notified West that the records identified in the court order were

available. On Thursday, April 17, West asked if he could view the records on “Monday [April 21]

or Tuesday at 11:00-4:00.” CP at 610. The Port responded:

       Yes; the logs for each volume of records disclosed are all available for review at
       the same time as the records. Would you like us to go ahead and have your own
       copy of each log ready for your pick up?

       I’ll also check with the Port about the logistics for your requested records review
       on either Monday or Tuesday from 11-4 PM, and get back with you shortly.

CP at 612-13.

       The Port never followed up on the times West requested, and West did not respond until

Friday, April 18, when he said he would like copies of each log if there were not electronic copies

of the logs. The Port agreed to make the copies. At 6:38 PM that night, West told the Port via e-

mail that “I will be at the Port at 9:00 Monday morning to inspect the records. I expect any

exemptions to disclosure that the Port seeks to assert to be filed with the Court and sent to me by

then.” CP at 612.

       West did not show up on Monday. Instead, West sent an e-mail at 11:53 AM that morning,

April 21, saying,

       Since counsel has intervened in the process and determined to make inspection of
       the SSLC records as difficult as possible, please be advised that I will be reviewing
       the records this Tuesday-Thursday, between the Hours of 10:00 and 5:00.

       Please inform me if any further court orders will be necessary to insure this review.

       Certified copies of all requested records will be required, per objection of counsel
       to admission of any non-certified documents in court.

CP at 615.




                                                6
No. 48110-3-II


       West did not show up to review the records the Port had produced on Tuesday, April 22.

West sent an e-mail the following day at 4:22 PM saying, “Due to what can only be described as

your criminal conspiracy to deny access to evidence, and continuing refusal to confirm

appointments in a timely manner, I will be appearing at the Port offices tomorrow at 11:00 to

inspect and obtain records.” CP at 616.

       The Port responded,

       Thank you for writing to clarify your planned visit to the Port of Tacoma. Per your
       earlier emails, the Port of Tacoma has been prepared for your arrival and held
       records ready for your review in one of our conference rooms every day since 9:00
       AM on Monday, April 21st. As you later revised your scheduled visit for
       Tuesday—Thursday of this week from 10: 00 AM—5: 00 PM, we have held space
       that space [sic] available for your used [sic] review and made available all of the
       currently released documents in that room for the entirety of your scheduled visits.
       Per your requested schedule, we will continue to make the space and those
       documents available tomorrow.

       Since I will be out of the office tomorrow morning, please ask for Mr. Tri Howard
       when you arrive.

CP at 617-18. Later that night, at 10:13 PM, West sent an e-mail stating that he was being subjected

to an “unreasonable run-around,” that the Port was refusing to comply with the March 28 order,

that he wanted “complete electronic copies of all disclosed records and for copies of all exemptions

claimed,” and that, “If I am not notified by 8:00 tomorrow morning that these records will be

immediately transmitted I will conclude that each of you is [sic] deliberately obstructing access to

them.” CP at 617. West arrived after noon the next day to view the records, Thursday, April 24.

       On May 1, the Port notified West that the next group of records and privilege logs were

available for West to review. This group of disclosures consisted of 26 volumes of records, making

a total of 51 volumes available for West’s review. Those 51 volumes were made up of 6,870




                                                 7
No. 48110-3-II


records and 19,923 pages. The Port determined that 175 records were exempt and 97 records were

released with redactions.

       On May 2, a second show cause hearing was held on West’s motion. The superior court

denied West’s requests to find the Port in contempt of the March 28 order and to join the Port of

Olympia. The superior court also ordered the Port to provide West with the exemption logs.

       On May 21, the Port provided the superior court with the withheld records for the superior

court or a special master to perform an in-camera review. On May 30, the superior court ordered

a special master be appointed.

       On October 14, the Port filed updated privilege logs of withheld records with the court and

provided copies for the special master. The Port reviewed the records that had been withheld when

the Port decided to stop pursuing a particular cite for the SSLC. The Port determined that some of

the previously withheld records could be disclosed. The Port notified West that new privilege logs

and new records were released.

B.     2009: SPECIAL MASTER APPOINTED

       On March 20, 2009, the superior court appointed a special master to review the records

that were the subject of West’s objection to the Port’s disclosure. The special master completed

the review on July 24. The special master identified four of the withheld documents that should

be disclosed in full or in part, and affirmed the withholding of the remaining claimed exemptions.

The Port moved to modify the special master’s report, arguing that one of the documents identified

by the special master for disclosure should not be disclosed.




                                                8
No. 48110-3-II


C.      2011-2014: SUIT DISMISSAL AND REMAND

        On January 25, 2011, the superior court granted the Port’s motion to dismiss this suit

under CR 41(b). West v. Port of Tacoma, No. 43004-5-II, slip op. at 5 (Wash. Ct. App. Feb. 20,

2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2043004-5-

II%20%20Unpublished%20Opinion.pdf. West appealed that dismissal. West, No. 43004-5-II,

slip op. at 5-7.

        On February 20, 2014, we issued an unpublished opinion holding that the superior court

erred in dismissing West’s lawsuit. West, No. 43004-5-II, slip op. at 1. We reasoned that the

superior court erred in dismissing the case under CR 41(b)(1) because the Port did not give West

the requisite 10-days’ notice, and erred in dismissing the case under CR 41(b)(2) because the

superior court’s letter did not meet the requirements for notice under CR 41(b)(2)(A). West, No.

43004-5-II, slip op. at 8-9. We further reasoned that the superior court’s inherent authority did not

permit it to dismiss a case because of West’s dilatory behavior. West, No. 43004-5-II, slip op. at

12.6 Accordingly, we vacated the order of dismissal and remanded the case for further proceedings

to the superior court. West, No. 43004-5-II, slip op. at 1.

D.      2015: ON REMAND

        On April 16, 2015, West moved for in-camera review of documents that the Port had not

disclosed. The order denying the motion was filed on May 4.




6
  In that opinion, we did not consider West’s attempts to advance the merits of his PRA action
against the Port and his arguments regarding the propriety of the superior court’s appointment of
the special master. West, No. 43004-5-II, slip op. at 13, 15. We reasoned that West was attempting
to challenge decisions that were not appealable as a matter of right and were not within the scope
of his appeal from the order of dismissal. West, No. 43004-5-II, slip op. at 13, 15.


                                                 9
No. 48110-3-II


       The May 4 order concluded that the 2014 opinion by this court did not address the orders

that the superior court had made concerning the PRA and, therefore, the motion for in-camera

review was moot because the orders that the superior court made regarding the PRA issues

remained the law of the case. The order also adopted the special master’s report and set a hearing

to hear the Port’s motion to modify the report.

       The same day, West filed a motion for a show cause hearing on PRA violations. The

following day, on May 5, West sought discretionary review from this court of the May 4 order.

On May 8, West moved the superior court to reconsider its May 4 order, and requested the judge

to recuse himself from the case. On May 27, the superior court granted West’s motion to

reconsider, and denied his requests for recusal.

       On June 2, West filed a motion to amend his complaint. The superior court denied the

motion to amend on June 12. On June 30, the superior court denied West’s motion to reconsider

the rulings from June 12.

       On July 2, the superior court granted the Port’s motion for a protective order regarding

discovery.

       On July 14, the superior court entered its order on West’s motion to reconsider the May 4

order. The superior court vacated the May 4 order and ordered an in-camera review of the records

that the Port withheld.

       On August 3, West filed another notice seeking discretionary review from this court

regarding “the Order of the [superior court judge] entered on June 30, 2015 and July 2, 2015,

denying plaintiff’s Motion to Amend and granting a protective Order limiting discovery.” CP at

278. The record does not show we accepted discretionary review.



                                                   10
No. 48110-3-II


       On September 4, the Port moved to dismiss the lawsuit under CR 12(b)(6) and CR 56. On

November 20, the superior court granted the Port’s motion to dismiss after a hearing. West

appealed the superior court’s ruling to this court the same day.             West later moved for

reconsideration of the November 20 order. The superior court denied West’s motion to reconsider.

                                            ANALYSIS

A.     THE SUPERIOR COURT DID NOT ERR IN DISMISSING THE SUIT

       West argues that the superior court erred in dismissing this suit. The Port moved to dismiss

West’s suit under CR 12(b)(6) and CR 56. We hold that the superior court did not err in relying

on Hobbs and dismissing West’s suit.7

       1.      Standard of Review

       We review PRA cases de novo. Nissen v. Pierce County, 183 Wn.2d 863, 872, 357 P.3d

45 (2015). We also review dismissals under CR 12(b)(6) de novo. Worthington v. Westnet, 182

Wn.2d 500, 506, 341 P.3d 995 (2015). Dismissals under CR 12(b)(6) are proper “only where there

is not only an absence of facts set out in the complaint to support a claim of relief, but there is no

hypothetical set of facts that could conceivably be raised by the complaint to support a legally

sufficient claim.” Worthington, 182 Wn.2d at 505.

       If a party brings a motion to dismiss under CR 12(b)(6), but “matters outside the pleading

are presented to and not excluded by the court, the motion shall be treated as one for summary



7
  West also argues that the superior court erred in denying his motion to reconsider the dismissal.
That argument is not addressed for two reasons: (1) it was not designated in the notice of appeal
and we did not grant a motion to accept an amended notice of appeal including the order denying
reconsideration; and (2) we hold that the superior court did not err in dismissing this case, so the
superior court similarly did not err in denying West’s motion to reconsider.



                                                 11
No. 48110-3-II


judgment and disposed of as provided in [CR] 56.” CR 12(b)(7). Affidavits submitted in a CR

12(b)(6) motion are “matters outside the pleadings” that convert the CR 12(b)(6) motion into a CR

56 summary judgment motion. Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548

P.2d 1085 (1976).

       Here, the superior court considered facts beyond those stated in West’s complaint. See,

e.g., CP at 498 (Michels’s declaration). Therefore, we treat the superior court’s dismissal of West’s

suit as a decision on a motion for summary judgment. Sea–Pac Co. v. United Food & Commercial

Workers Local Union 44, 103 Wn.2d 800, 802, 699 P.2d 217 (1985).

       Summary judgment is appropriate if there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. CR 56(c). We review a superior court’s

decision on summary judgment de novo. Didlake v. State, 186 Wn. App. 417, 422, 345 P.3d 43,

review denied, 184 Wn.2d 1009 (2015).

       2.      Hobbs v. State

       In Hobbs, we considered a superior court’s order dismissing Hobbs PRA claim against the

State Auditor’s Office. 183 Wn. App. at 928. Hobbs requested public records from the Auditor

on November 28, 2011, including a large amount of technical information relating to the requested

records. Id. at 929. The Auditor responded on December 2, acknowledging the request and stating

that the first installment of records would be available after December 16. Id. The Auditor made

the first installment available to Hobbs electronically on December 21. Id. at 929-30. Hobbs filed

suit alleging PRA violations on December 23. Id. at 932.

       The Auditor continued to respond to Hobbs’s PRA request. Id. at 930. On December 30,

the Auditor gave Hobbs a new copy of the previously provided documents, using a numbering



                                                 12
No. 48110-3-II


system created to correspond to explanations of the redactions. Id. The Auditor also told Hobbs

that the next installment would be ready on January 13, 2012. Id.

       On January 6, the Auditor informed Hobbs that the final installment would be ready on

February 13. Id. However, on January 19, the Auditor informed Hobbs that the remaining records

would not be available until March 1 due to technical issues. Id. at 931.

       Between February 13 and 17, the Auditor sent Hobbs additional requested records, an

updated copy of the December 30 documents addressing concerns Hobbs had raised, and an e-mail

notifying Hobbs of further technical issues. Id. On March 1, the Auditor sent the remaining

records and an e-mail stating that it believed it had provided all responsive documents. Id.

       Multiple hearings ensued until the superior court issued its final order in November 2012.

Id. at 934. The superior court’s final order ruled that “providing records in updated installments

while [Hobbs’s] public records requests were still pending was not a ‘denial’ of records for PRA

purposes.” Id. (quoting the record).

       On appeal, Hobbs held, “Under the PRA, a requester may only initiate a lawsuit to compel

compliance with the PRA after the agency has engaged in some final action denying access to a

record,” and, though not specifically defined, “a denial of public records occurs when it reasonably

appears that an agency will not or will no longer provide responsive records.” Id. at 935-36. Hobbs

reasoned that RCW 42.56.550(1) permits superior courts to hear motions to show cause “when a

person has ‘been denied an opportunity to inspect or copy a public record by an agency,’” and

looked at other provisions within the PRA, such as RCW 42.56.520, which refers to “‘final agency

action or final action.’” Id. at 936 (emphasis omitted) (quoting RCW 42.56.550(1), .520). Hobbs

concluded that the plain language of the statute dictates that “being denied a requested record is a



                                                13
No. 48110-3-II


prerequisite for filing an action for judicial review of an agency decision under the PRA.” Id. at

936-37.

        Applying these conclusions to the facts, Hobbs held “that the Auditor was continuing to

provide Hobbs with responsive records until March 1,” and, “[t]herefore, there could be no ‘denial’

of records forming the basis for judicial review.” Id. at 936-37. Accordingly, Hobbs held that the

superior court did not err in dismissing the Hobbs’s PRA suit against the Auditor. Id. at 946.

        3.      Application of Hobbs Requires Dismissal of West’s Suit

        Here, just as in Hobbs, there is no dispute that the Port responded to West’s request within

the five-day statutory window and provided West with an anticipated disclosure date for the first

installment, but failed to meet that anticipated disclosure date. Id. at 930-32. Also, as in Hobbs,

the Port maintained active communication with West about his request and produced multiple

installments of records over several months, despite the initiation of a lawsuit before the production

of records was completed. Id. Thus, the conclusion reached in Hobbs is necessarily the conclusion

we reach here—that West’s suit against the Port was premature under the plain language of the

PRA because “being denied a requested record is a prerequisite for filing an action for judicial

review of an agency decision under the PRA,” and the Port had not “engaged in some final action

denying access to a record” at the time West filed the suit. Id. at 936.

        Because the suit was premature, West’s complaint failed as a matter of law and dismissal

was proper. CR 56(c). Therefore, we hold that the superior court did not err in dismissing West’s

suit against the Port.




                                                 14
No. 48110-3-II


       4.      West’s Other Arguments are not Persuasive

               a. Attempts to Distinguish Hobbs

                       i. Allegedly Distinguishable Facts

       West attempts to distinguish his suit from Hobbs by arguing that the Port had not delivered

on its expected first installment production dates. West’s argument is not persuasive for several

reasons.

       First, Hobbs is factually similar to this case. The Auditor in Hobbs also did not produce

records on the date it initially estimated. Hobbs, 183 Wn. App. at 929-30.

       Second, the “PRA contains no provision requiring an agency to strictly comply with its

estimated production date,” but instead “gives an agency additional time to respond to a request

based on the need to ‘locate and assemble the information requested.’” Andrews v. Wash. State

Patrol, 183 Wn. App. 644, 651-52, 344 P.3d 94 (2014), review denied, 182 Wn.2d 1011 (2015)

(quoting RCW 42.56.520). Hobbs expressly adopted the Andrews holding and stated that the PRA

“[does] not require an agency to comply with its own self-imposed deadlines as long as the agency

was acting diligently in responding to the request in a reasonable and thorough manner.” Hobbs,

183 Wn. App. at 940.

       Third, West does not contend, nor does he provide any evidence to support an inference,

that the Port was not diligent in its efforts to fulfill the request. Nor does West contend or provide

any evidence to support an inference that the postponement of first installment’s production was

not in good faith.

       Finally, and from a practical perspective, West made his request right as the winter holiday

season typically begins, in early December 2007, and filed suit against the Port barely a month



                                                 15
No. 48110-3-II


later, on January 14, 2008. The Port communicated with West throughout the height of that

holiday season, on December 21, 26, and 31. Therefore, the fact that West filed his suit before the

Port had produced the first installment of records does not distinguish West’s suit from Hobbs

such that the legal principals explained in Hobbs are rendered inapplicable.

       West also argues Hobbs does not control the outcome of this case because the plaintiff in

Hobbs asserted a cause of action under RCW 42.56.550(1), and West asserted his cause of action

under RCW 42.56.550(2). This argument fails because West did not assert a cause of action under

RCW 42.56.550(2) nor did West seek the relief that a cause of action under RCW 42.56.550(2)

would provide.

       RCW 42.56.550 governs judicial review of agency actions and provides in part:

               (1) Upon the motion of any person having been denied an opportunity to
       inspect or copy a public record by an agency, the superior court in the county in
       which a record is maintained may require the responsible agency to show cause
       why it has refused to allow inspection or copying of a specific public record or class
       of records. The burden of proof shall be on the agency to establish that refusal to
       permit public inspection and copying is in accordance with a statute that exempts
       or prohibits disclosure in whole or in part of specific information or records.

               (2) Upon the motion of any person who believes that an agency has not
       made a reasonable estimate of the time that the agency requires to respond to a
       public record request, the superior court in the county in which a record is
       maintained may require the responsible agency to show that the estimate it provided
       is reasonable. The burden of proof shall be on the agency to show that the estimate
       it provided is reasonable.

       West’s complaint did not identify RCW 42.56.550(2) as the basis for his cause of action,

nor did it seek to have the superior court “require the responsible agency to show that the estimate

it provided [wa]s reasonable.” RCW 42.56.550(2). Instead, West’s asserted cause of action under

the PRA was that “[b]y their acts and omissions, defendants illegally and unconstitutionally




                                                16
No. 48110-3-II


violated RCW 42.56, damaging plaintiff, the public, and the State, for which relief should issue as

requested below.” CP at 4. The relief West requested was that, “[t]hat an order issue under the

0seal of this Court declaring that defendant Port of Tacoma violated the PRA and their self imposed

[sic] elevated duty of transparency, and compelling disclosure of all requested records, and

assessing penalties and costs for each individual record that has been witheld [sic].” CP at 5.

Therefore, West’s argument that Hobbs is distinguishable because West sought relief under RCW

42.56.550(2) rather than RCW 42.56.550(1) fails because West’s suit did not seek to “require the

responsible agency to show that the estimate it provided is reasonable,” which is the relief RCW

42.56.550(2) provides.

         Finally, to the extent West’s citations to Violante v. King County Fire Dist. No. 20, 114

Wn. App. 565, 59 P.3d 109 (2002), are intended to support an assertion that his complaint was

necessary to get the Port to respond, this argument is not persuasive. Violante is older than Hobbs

and was decided by Division One of this court. Therefore, even if the holdings Violante and Hobbs

were in conflict, which we do not consider, the precedent set by Violante does not bind this court.

See, Mark DeForrest, In the Groove or in A Rut? Resolving Conflicts Between the Divisions of the

Washington State Court of Appeals at the Trial Court Level, 48 GONZ. L. REV. 455, 487–88

(2013).8




8
    As Professor DeForrest explains:

         The Washington court system has a developed notion of vertical stare decisis
         regarding the binding nature of state supreme court decisions on the court of
         appeals, as well as an approach to the authority of the decisions of each division of
         the court of appeals. Decisions of the state supreme court are binding on all lower
         Washington courts, whether trial courts or the appellate court sitting in its divisions.


                                                   17
No. 48110-3-II


                       ii. The Hobbs Holding is not Dicta

       West argues that the holding in Hobbs that necessitates dismissal of his suit against the

Port was dicta and not binding on this court. Specifically, West argues, “In [Hobbs], the Court

actually reached the merits of Hobbs’[s] claims, and found no violation, making the portions of

their ruling on the timing of Hobbs[’s] suit obiter dictum inapplicable to cases where an actual

violation of the PRA is present.” Br. of Appellant at 36-37. We disagree.

       “Obiter dictum” is Latin for “‘something said in passing.’” and is, “‘[a] judicial comment

made during the course of delivering a judicial opinion, but one that is unnecessary to the decision

in the case and therefore not precedential (though it may be considered persuasive).’” Pierce

County v. State, 150 Wn.2d 422, 435 n.8, 78 P.3d 640 (2003) (quoting BLACK’S LAW DICTIONARY

1100 (7th ed. 1999)). “Obiter dictum” is generally abbreviated to “dicta.” State ex rel. Lemon v.

Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954). The conceptual distinction between a court’s

holding and what may be considered “dicta” has been explained: “The principal feature of holdings

is that they are necessary to decide a case, and the principal feature of dicta is that they are not.”

Shawn J. Bayern, Case Interpretation, 36 FLA. ST. U. L. REV. 125, 129 (2009).

       But as the United States Supreme Court recognized long ago,

       It does not make a reason given for a conclusion in a case obiter dictum, because it
       is only one of two reasons for the same conclusion. It is true that in this case the
       other reason was more dwelt upon and perhaps it was more fully argued and
       considered than section 3377, but we cannot hold that the use of the section in the
       opinion is not to be regarded as authority, except by directly reversing the decision
       in that case on that point, which we do not wish to do.


       Decisions of a division of the court of appeals are binding on all state trial courts,
       but not on the other divisions of the court of appeals.

Id. at 487–88 (2013) (footnotes omitted).


                                                 18
No. 48110-3-II



Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S. Ct. 194, 72 L. Ed. 303

(1928). That alternative holdings are not dicta, but are instead binding precedent, remains true

today. See, e.g., Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017) (citing,

among others, Hitchcock v. Sec’y, Florida Dep't of Corr., 745 F.3d 476 (11th Cir. 2014) for the

proposition, “[A]n alternative holding is not dicta but instead is binding precedent.”).

       Here, the first issue considered in Hobbs was whether “a requester is permitted to initiate

a lawsuit prior to an agency’s denial and closure of a public records request.” 183 Wn. App. at

935. To that point, Hobbs held that “before a requester initiates a PRA lawsuit against an agency,

there must be some agency action, or inaction, indicating that the agency will not be providing

responsive records.” Id. at 936. Thus, the requirement that “there must be some agency action, or

inaction, indicating that the agency will not be providing responsive records” before a PRA suit

could be filed was the holding on the primary issue on appeal in Hobbs. Id. To the extent the

Hobbs court provided further holdings for why the superior court did not err, they would be

alternative holdings in Hobbs. Alternative holdings are not dicta, but instead provide binding

precedent. See, e.g., Richmond Screw Anchor Co., 275 U.S. at 340.

               b. Misplaced Reliance on This Court’s Decision in a Previous Appeal

       West argues that our 2014 opinion in this case “expressly held that the Port was not

producing records at the time the suit was filed,” when we said, “‘the port repeatedly pushed back

its expected release date.’” Br. of Appellant at 23 (quoting West, No. 43004-5-II, slip op. at 2).

West’s argument misunderstands the basis of our 2014 opinion.




                                                 19
No. 48110-3-II


       Here, there is no dispute that the Port did not meet its first two expected installment delivery

dates. However, under the PRA, West may only initiate a lawsuit to compel compliance with the

PRA after the Port has engaged in some final action denying access to a record. Hobbs, 183 Wn.

App. at 935. And the PRA does not require the Port to comply strictly with its estimated production

dates. Andrews, 183 Wn. App. at 651-52. Therefore, the necessary conclusion is that dismissal

as a matter of law was proper. Hobbs, 183 Wn. App. at 935.

       Our 2014 opinion does not change the necessary conclusion dictated by Hobbs because the

2014 opinion only considered the propriety of dismissal only under CR 41 and expressly did not

consider the PRA claims. West, No. 43004-5-II, slip op. at 13, 15. The issue in the 2014 appeal

was whether the superior court properly based its dismissal on CR 41(b)(1), (2), or the superior

court’s inherent power. West, No. 43004-5-II, slip op. at 1. We held that dismissal under CR 41

was not proper because the notice requirements of CR 41(b)(1) and (2) were not met, and the

superior court did not rely on its inherent authority in dismissing the case. West, No. 43004–5–II,

slip op. at 1. We did not consider the arguments West made regarding the various superior court

orders on the alleged violations of the PRA because the those issues were neither appealable as a

matter of right nor were they within the scope of the appeal from the order of dismissal. West, No.

43004-5-II, slip op. at 13, 15. Thus, our 2014 opinion has no bearing on the issues in the current

appeal, which concern whether West prematurely filed suit.




                                                 20
No. 48110-3-II


                c. Waiver Argument is not Relevant

         West argues that the Port waived any argument against superior court having jurisdiction

over this case.9 This argument is not relevant to the issue on appeal. On appeal, we are considering

whether West’s suit was prematurely filed and should be dismissed as a matter of law. Thus,

West’s challenge to the superior court’s jurisdiction is not relevant to the issues presented to this

court.

                d. Appearance of Fairness and the Fifth Amendment Arguments Fail

         West argues in a heading that the superior court “erred in failing to afford West an

objectively impartial process in accord with the Appearance of Fairness and the 5th Amendment

and in refusing to conduct a show cause hearing and determine if the court violated the PRA.” Br.

of Appellant at 44 (some capitalization omitted). These arguments fail.

         First, West provides no further argument or citation for his assertions that the appearance

of fairness doctrine or his constitutional Fifth Amendment rights were violated. As such, we need

not consider these arguments further. See RAP 10.3(a)(6); Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (holding that where arguments are not supported

by authority, this court does not consider them).




9
  West also asserts in a heading that the Port submitted to the superior court’s jurisdiction under
res judicata, collateral estoppel, and equitable estoppel. West provides no citations to legal
authority to support his theory. Therefore, we need not consider this assertion. See RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)
(holding that where arguments are not supported by authority, this court does not consider them).


                                                 21
No. 48110-3-II


          Second, and as explained above, the superior court properly dismissed this case because it

was filed prematurely. Therefore, the superior court did not err in failing to conduct a show cause

hearing on the merits of the alleged PRA violations.

B.        THE ORDER DENYING THE MOTION TO AMEND IS NOT BEFORE THIS COURT

          West argues that the superior court erred in denying his motion to amend his complaint.

We do not consider this argument because the issue is not before us on appeal.

          RAP 5.3(a) requires that a notice of appeal must “designate the decision or part of decision

which the party wants reviewed.” Generally, we will not review an order that was not designated

in the notice of appeal. RAP 2.4(a). A caveat to this general rule is that we will also review those

decisions designated in a notice for discretionary review, where such discretionary review has been

accepted. RAP 2.4(a), RAP 2.3(e).

          The party seeking discretionary review has “within the longer of (1) 30 days after the act

of the trial court that the party filing the notice wants reviewed or (2) 30 days after entry of an

order deciding a timely motion for reconsideration of that act.” RAP 5.2(b). When seeking

discretionary review, the noting party must pay the filing fee at the time the notice is filed. RAP

5.1(b).

          In his notice of appeal, West sought this court’s review of “the Order of the [superior court

judge] entered on November 20, 2015.” CP at 430.10 The order entered on November 20, 2015




10
   Even in the amended notice of appeal that West moved this court to accept, the orders for which
review was sought were the order to dismiss and the order denying reconsideration of the motion
to dismiss, entered on November 20, 2015 and December 15, 2015, respectively.



                                                   22
No. 48110-3-II


by the superior court judge was the order “Granting Dismissing Suit.” CP at 431. Thus, West did

not designate the order denying his motion to amend in his notice of appeal.

       The record does not show that we accepted review of West’s notice of discretionary review

relating to the superior court’s order denying West’s motion to amend the complaint. Instead, the

record shows that West did not timely file the notice of discretionary review because it was not

filed within 30 days of June 30, and the record does not show that West paid the filing fee.

       Thus, West did not designate the superior court’s denial of his motion to amend in his

notice of appeal and there is no indication in the record that West’s notice for discretionary review

was accepted. Therefore, we do not consider West’s argument that the superior court abused its

discretion in denying his motion to amend the complaint. RAP 2.3(e), RAP 2.4(a), RAP 5.1(b),

RAP 5.2(b).

C.     ATTORNEY FEES AND COSTS ON APPEAL

       Both parties request fees and costs on appeal. We decline to award fees to West and award

fees and costs to the Port.

       West requests fees under RAP 18.1 and RCW 42.56.550(4). Under RCW 42.56.550(4), a

party prevailing against an agency in a PRA suit is entitled to an award of fees and costs. Because

West does not prevail in this action, he is not entitled to an award of fees and costs.

       The Port requests fees and costs under RAP 18.1, RAP 18.9, and RCW 4.84.185 for

defending a frivolous appeal. Under RCW 4.84.185, an action is frivolous if, “considering the

action in its entirety, it cannot be supported by any rational argument based in fact or law.” Dave

Johnson Ins., Inc. v. Wright, 167 Wn. App. 758, 785, 275 P.3d 339, review denied, 175 Wn.2d

1008 (2012). Under RAP 18.9, an appeal is frivolous if it is so devoid of merit that there exists no



                                                 23
No. 48110-3-II


reasonable possibility of reversal. In re Marriage of Healy, 35 Wn. App. 402, 406, 667 P.2d 114,

review denied, 100 Wn.2d 1023 (1983). Because West’s appeal did not present debatable issues

on which there was a reasonable possibility of reversal, we exercise our discretion and award

attorney fees and costs to the Port.

       We affirm the superior court’s order dismissing the suit.

       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.



                                                                      Lee, J.
 We concur:



                   Maxa, A.C.J.




                     Sutton, J.




                                               24
