                                                                                                                 FILED
                                                                                                     COU    N' T t.OF APPEALS
                                                                                                            Di. ar i mot,            II

                                                                                                   201 FES 20 A% 9= 24
                                                                                                     T,

    IN THE COURT OF APPEALS OF THE STATE OF WASHII                                                                           SHI C        1, 47


                                           DIVISION II                                                        OED                Y


ARTHUR WEST,                                                                  No. 43004 -5 -II


                                 Appellant,


       V.



PORT OF TACOMA,                                                       UNPUBLISHED OPINION




       WORSWICK, C. J. —      Arthur West appeals an order involuntarily dismissing his public

records lawsuit against the Port of Tacoma. West argues that the trial court erred by ( 1)

                                 both CR 41 and the trial                 inherent            to dismiss   cases; (         2)
dismissing his lawsuit   under                               court' s                power




failing to conduct a show cause hearing or determine whether the Port violated the Public
Records Act,   chapter   42. 56 RCW ( PRA);      and ( 3) appointing a special master to review the Port' s

claimed exemptions from disclosure. We agree that the trial court erred by dismissing West' s

case.. We decline to consider his other arguments because they_do not raise appealable issues.

We also deny both parties' requests for attorney fees on appeal. Accordingly, we vacate the

order of dismissal and remand for further proceedings.

                                                    FACTS


        On December 4, 2007, Arthur West requested records from the Port of Tacoma. West

requested   documents including "[    a] ll records and communications concerning the South Sound

Logistics Center, from    January   1, 2005 to   present."   Clerk'   s   Papers ( CP)   at   14. The South Sound
No. 43004 -5 -II



Logistics Center was a proposed and subsequently abandoned joint venture of the Ports of

Tacoma and Olympia, for which the Port of Tacoma purchased a 745 -acre parcel of land.

           The Port   of    Tacoma (hereinafter " the Port," unless otherwise specified) promptly gave


West an expected date for the release of responsive records, but the Port repeatedly pushed back

its expected release date. On January 14, 2008, West filed a pro se complaint alleging that the

Port' s actions violated the Public Records Act. The Port made its first batch of records available

to West on January 28. West inspected this batch on January 29 and served the Port with his

complaint on January 31.

           The procedural history of West' s case below is complicated and confusing. In 2008,

West filed three motions for show cause orders. First, West' s January 14 motion requested an

order requiring the Port to appear and show cause " why the requested records should not be

disclosed."     CP    at   5.    The trial court granted this motion and ordered the Port to appear on


February 12. The Port replied that it was responding in good faith; although it had not yet made
all records available, it listed the steps it had taken and sought a reasonable time to claim

exemptions and fulfill the request. -After setting the show cause hearing over to March 28, the

trial court reserved its ruling because the trial court could not yet determine whether the Port' s

claimed exemptions were justified.


            Second, West' s April 24 show cause motion sought to join the Port of Olympia as a

defendant and order it "to appear to show cause why [ it] should not be found in violation of the

PRA, since many of the records recovered by the Port of Tacoma and now maintained in Pierce

 County are also Port of Olympia records which have been destroyed by the Port of Olympia."
 CP   at   58. The trial        court   denied this   motion on   May   2.
No. 43004 -5 -II



        Third, on May 15, West filed a " motion for reconsideration and for show cause,"

requesting, inter   alia, (   1) in camera review of the records responsive to West' s request and ( 2) an


order " finding [the Port] in noncompliance with the PRA for failing to disclose records or make

exemptions in response to the original request prior to the filing of this suit, and due to [ the

Port' s] continuing    misrepresentations and manifest          bad faith, [ its] destruction of records, and the


deliberate policy     of concealment of records."         CP at 71 -72. The trial court denied West' s motion .


to reconsider its earlier rulings.


        By May 21 — five         months after   West' s   original request —  the Port had filed in the trial


court copies of all responsive records, along with a log of its claimed exemptions. The 6, 870

responsive records consisted of 19, 923 pages contained in 51 volumes. The Port claimed that

175 records were entirely exempt from disclosure and another 97 records were partially exempt.

West challenged all claimed exemptions.


        On May 30, 2008, the trial court stated that, pursuant to CR 53. 3, it would appoint a
special master   to   review    the   responsive records and    the   claimed exemptions.    West opposed the


appointment, claiming that a special master would cause delays and; alternatively, that the court

should appoint a public records expert and not an attorney with general experience in law.

        On March 20, 2009, the trial court appointed the Honorable Terry Lukens, a retired
                                                1
superior court   judge,   as special master.        In a report filed July 24, 2009, the special master

recommended that the trial court approve most of the Port' s claimed exemptions. In response,




 1 The delay in the appointment was apparently caused by the trial judge falling ill for several
 months and the parties' dispute over the special master' s appointment.




                                                            3
No. 43004 -5 -II



the Port filed a request to modify the special master' s recommendation as to one rejected

exemption. West opposed the Port' s request.


         In a September 16, 2009 letter, the special master stated that he considered his task

complete and that the Port' s request and West' s opposition were for the trial court to consider.

But for 16 months following submission of the special master' s letter, West did not file any

motions or other pleadings in the case.2

          Instead, according to his own brief, West commenced " flailing around" by attempting to

press his public records request in other fora. Br. of Appellant at 24. Specifically, West ( 1)

asked the Pierce County prosecuting attorney to declare that the trial judge had forfeited his

office   by failing   to issue   a   timely determination in   this   case; (   2) filed a complaint in the superior


court under a new cause number " for negligence, mandamus, quo warranto, and disclosure of

public records,"      CP at 1235; and ( 3) filed an action in federal district court alleging numerous

constitutional claims premised on his allegation that the Port and its counsel turned West' s public

records request       into   a " private criminal prosecution" against          him, CP   at   1243.   Similarly, before

the special master filed his report, West also ( 4) filed a bar grievance alleging that the Port' s

counsel was inadequately supervised by a partner in her law firm; and ( 5) wrote to state and

federal prosecutors, including the United States attorney general, requesting a criminal

investigation of a conspiracy to deprive West of his civil rights and right to inspect the Port' s

records.




 2
  During 2010 the Port continued to file "various administrative items" including a notice of
 attorney change of address and a notice of counsel' s unavailability. CP at 998.


                                                          4
No. 43004 -5 -II



          On December 8, 2010, the trial court mailed West and the Port a letter notifying them of

a " status conference"          on      January    7, 2011. CP      at   603. The letter      advised, "   If no one appears ...


the Court      will    dismiss this      matter on       its   own motion."        CP at 603.


          On January 7, 2011, the date of the status conference, the Port filed a motion to dismiss,

which it framed as a " reply" to the trial court' s letter. This motion argued that CR 41( b) required

the trial court to dismiss West' s claims for want of prosecution because West had not filed
                                                                                   3
anything in the         case   docket for the       previous       16   months.        In response, West claimed that the


parties had been awaiting the trial court' s ruling based on the. special master' s report. Despite

the Port' s failure to give West notice of its CR 41( b) motion to dismiss, the trial court stated it

would " grant [ the        Port'   s]   order ";   however, the Port did not have a proposed order ready.

Verbatim Report           of   Proceedings ( VRP) ( Jan. 7, 2011) at 5.


          West immediately began a flurry of filings, several of which seemed to duplicate one

another. On January 7, West filed a note for a hearing on presentation of a written order of

dismissal; the trial court set this hearing over to January 25. The trial court' s January 25 order of

dismissal relied solely on CR 41 (b )(l)-and 2 -

              Also on January 7, West filed a handwritten notice of appeal seeking our Supreme

 Court'   s   direct   review of        the   order of   dismissal "     and [ ]   orders."   CP at 606 ( omitting two illegible

words,    possibly " 24        interlocutory "). Our Supreme Court considered this notice of appeal along

 with a second notice that West subsequently filed. Although a notice of appeal is premature if

 filed before entry of the written decision, West apparently overcame this barrier by filing the trial

 3
     The Port simultaneously filed an additional motion to dismiss, also captioned as a " reply,"
 asserting that dismissal was warranted because the Port complied with the Public Records Act.
 The trial court did not consider the merits of this motion.


                                                                         5
No. 43004 -5 -II



court' s written order of dismissal after its entry. See Letter from Supreme Court Deputy Clerk

Susan Carlson to the parties and Pierce County Superior Court Clerk Kevin Stock (Jan. 11,

2011),   and Letter from Supreme Court Deputy Clerk Susan Carlson to the parties ( Feb. 17,

2011),   West v. Port of Tacoma, No. 85510 -2 ( Wash.).

         On January 19, West filed in the superior court a " note for trial, declaration, and

objection   to CR 41 dismissal."       CP at 610. Although West noted this objection to be heard on


January 28, the trial court set it over to March 4.

         On February 1, West filed a " motion to vacate improper dismissal issued without notice,"

citing CR 59.      CP at 630. The Port and the trial court treated it as a motion to reconsider the

order of dismissal. Although West noted this motion to be heard on February 25, the trial court

set this hearing over to March 18.

         When the trial court convened the March 4 hearing on West' s objection to the CR 41

dismissal, West did not appear. The trial court then entered an order denying West' s motion to

              4
reconsider.       The order denying reconsideration based dismissal of West' s suit on CR 41, and,

for the first time, also based dismissal on the ground that West' s " refusal to obey [ a court] order

was willful or     deliberate."   CP   at   660 ( alteration in   original).   But the trial court did not specify


4
    The record does not explain why the trial court denied West' s motion to reconsider on March 4
instead of on March 18, the date on which it was noted for a hearing. West later claimed that ( 1)
he believed the March 4 hearing had been set over to March 18 and ( 2) the trial court .
  deliberately held an ex parte hearing." CP at 672. But the trial court informed both parties of
the March 4 hearing by letter dated January 21. Further, on March 2, the Port' s counsel filed a

proposed order denying West' s motion for reconsideration; the proposed order was prepared for
the trial court' s consideration at the March 4 hearing. Although the record does not include a
declaration of service accompanying the proposed order, the Port' s counsel represented that " Mr.
 West has been      served with [ it]."     VRP ( Mar. 4, 2011) at 2. It also appears from the record that
no hearing occurred on March 18.



                                                            2
No. 43004 -5 -II



the order that West willfully or deliberately disobeyed. The trial court further characterized its

conclusions of      law    as   supporting   a "   ruling to dismiss for       want of prosecution."       CP at 661.


          On March 18, West filed a second notice of appeal, again seeking direct review in our

Supreme Court. The              notice of appeal     identified ( 1) the     order of   dismissal, ( 2)   the order denying

West'    s motion   to   reconsider, and (    3) "   all   interlocutory     orders."    CP at 662. The Supreme


Court' s clerk later transferred the case to this court because both West and the Port agreed to it.

Letter from Supreme Court             Deputy       Clerk Susan Carlson to the           parties ( Dec.   15, 2011), West, No.


85510 -2.


                                                            ANALYSIS .


                                                   I. ORDER OF DISMISSAL


          West argues that the trial court erroneously dismissed his suit because ( 1) it failed to give

proper notice under         CR 41 ( b)( 1)   or ( 2),      and ( 2) the trial.court' s inherent power cannot support


the order of dismissal. In an apparent concession, the Port' s response does not contend that the

trial   court   properly   relied on   CR 41( b)( 1)        or ( 2);   instead, the Port claims that the order of


dismissal -
          was a proper exercise of the trial court' s inherent power. We agree with West that the

order of    dismissal     was not    properly based         on   CR 41( b)( 1),   CR 41( b)( 2), or the trial court' s


inherent power.


          A trial court may dismiss a case pursuant to a court rule or by exercising its inherent

power to dismiss cases. See Snohomish County v. Thorp Meats, 110 Wn.2d 163, 166 -67, 750

P. 2d 1251 ( 1988).        But a trial court may exercise its inherent power to dismiss a case " only when

no court rule or statute governs          the      circumstances presented."            Thorp Meats, 110 Wn.2d at 167.




                                                                       7
No. 43004 -5 -II



A.        Dismissal under CR 41( b)( 1) and (2)


          West argues that the order of dismissal for want of prosecution was improper under CR

41( b)( 1) and CR 41( b)( 2) because he did not receive sufficient notice. We agree.

          Whether a trial court properly dismissed an action for want of prosecution is a question of

law. State     ex rel.   Heyes   v.   Superior Court, 12 Wn.2d 430, 433, 121 P. 2d 960 ( 1942). Likewise,


the application of a court rule to a particular set of facts is a question of law reviewed de novo.


Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P. 3d 404 ( 2001).

          Each of CR 41( b)( 1) and ( 2) provides an independent method of involuntary dismissal

under   distinct   circumstances.         Wallace   v.   Evans, 131 Wn.2d 572, 578, 934 P. 2d 662 ( 1997). But


under both provisions, involuntary dismissal is mandatory when the criteria for dismissal are

met. Thorp Meats, 110 Wn.2d at 167; Vaughn v. Chung, 119 Wn.2d 273, 278, 830 P.2d 668
 1992).


          1.   CR 41( b) (1)


          CR 41( b)( 1) permits a trial court to dismiss a case on aparty' s motion when the plaintiff

 neglects to note the action for trial or hearing within 1 year after any issue of law or fact has

been joined,"      unless   the moving party        caused   the   delay. " Such motion to dismiss shall come on

for   hearing   only   after   10 days'   notice   to the   adverse   party."   CR 41( b)( 1).


          Here, dismissal was clearly improper under CR 41( b)( 1) because the Port did not give

West 10 days' notice. Instead, the Port moved to dismiss the case on the same day that the

motion was heard. Thus the order of dismissal was erroneous to the extent it was based on CR

41( b)( 1).
No. 43004 -5 -II



2. CR 41( b) (2)


          CR 41( b)( 2) allows the trial court to dismiss dormant cases on its own motion. Miller v.

Patterson, 45 Wn.        App.   450, 455, 725 P. 2d 1016 ( 1986). Dismissal under CR 41( b)( 2) is


appropriate when        three   elements are met: (   1) the trial court' s clerk mails the required notice to


the   parties, (   2) there is no action of record in the case during the 12 months preceding the notice,

and ( 3) within 30 days following the notice, there is no action of record and no showing of good

cause    for continuing the      case.   Vaughn, 119 Wn.2d           at   278. In the   required notice, " the   clerk of



the superior court shall notify the attorneys of record by mail that the court will dismiss the case

for want of prosecution" unless action of record occurs or a showing of good cause is made

within 30 days. CR 41( b)( 2)( A).

          As West asserts, the trial court' s letter was a deficient notice for the purposes of CR

41( b)( 2)( A).     The letter required the parties to appear at a status conference and further advised

that the trial     court would    dismiss the   case on   its   own motion "[     i] f no   one appears."   CP at 603.


But unlike the required notice, the letter failed to inform the parties that the case would be

                                                                                                  5
dismissed     after   30 days   absent                       a
                                         action of record or -       showing    of good cause.        CR 41( b)( 2)( A).


The letter did       not meet   the   requirements of a notice under          CR 41( b)( 2)( A), and therefore CR


41( b)( 2) also cannot support the order of dismissal.




5 Because the notice' s contents were insufficient, we do not address West' s additional arguments
that ( 1) the order of dismissal erroneously found that the trial court' s letter provided more than
30 days notice to the parties of the status conference because exactly 30 days were provided and
 2) West took action of record by appearing at the status conference and noting the matter for
trial.




                                                                G9
No. 43004 -5 -II



B.        Trial Court' s Inherent Power To Dismiss Cases

          The Port proposed an additional order which it presented on March 4, when the trial court

considered West' s motion for reconsideration. The trial court' s March 4 order contained all the

findings of fact and conclusions of law stated in the January 25 order of dismissal, which was

based solely             on   CR 41( b).       In addition, the March 4 order contained one new finding of fact and

seven new conclusions of law supporting dismissal as an exercise of the trial court' s inherent
          6
power.




              The parties dispute whether the March 4 order denying West' s motion for reconsideration

could modify the rationale for dismissal by, for the first time, basing dismissal on the trial court' s




6
    The   new           finding   of   fact   stated: "   Petitioner West' s failure to timely prosecute this PRA case was
without       justification            or excuse."        CP at 659. The new conclusions of law stated:


              6. Dismissal is also an appropriate remedy where the record indicates that
                   1)    the party' s     refusal    to obey [ a   court]      order was willful or    deliberate, ( 2) the

                          s actions      substantially       prejudiced   the   opponent [ ... ]   and ( 3) the trial court
              party'
              explicitly considered whether a lesser sanction would probably have sufficed."
              See Rivers [ v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674,
              686, 41 P. 3d 1175 ( 2002)].
              7.        A party' s disregard of a court order without reasonable excuse or justification
              is deemed willful.
              8.         Petitioner West' s failure to timely prosecute this PRA case was without
              justification or excuse, and was therefore willful.
              9.        This is a Public Records Act case, in which potentially, a " per day" penalty is
              at issue.
              10. Imposition of a " per day" penalty is mandatory.
              11.        Each day of the Petitioner' s delay adds to the risk of the Port incurring a per
              day penalty, which under existing law, the Port could not be excused from even
              on the basis that Plaintiff caused the delay.
              12. The Court' s ruling to dismiss for want of prosecution recognizes and cures
              this prejudice, which no lesser sanction could do.

 CP at 660 -61.


                                                                          10
No. 43004 -5 - II


                                                                                                                                  7
inherent   power.     We   assume without        deciding   that the trial court properly        changed       its   rationale.




Even so, the trial court erred by exercising its inherent power to dismiss.

          We review a trial court' s order exercising its inherent power to dismiss a case for an

abuse of   discretion.     Stickney    v.   Port of Olympia, 35 Wn.2d 239, 241, 212 P. 2d 821 ( 1949). A


trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable

grounds, or made       for   untenable reasons.       Mayer   v.   Sto Indus., Inc., 156 Wn.2d 677, 684, 132


P. 3d 115 ( 2006). This standard is also violated when a trial court bases its decision on an


erroneous view of      the   law. 8   Mayer, 156 Wn.2d at 684.

          The trial   court gave      two   reasons   for exercising its inherent     power      to dismiss: ( 1) West' s



willful or deliberate refusal to obey a court order and ( 2) want of prosecution. Neither reason

supports the dismissal of West' s suit.


          First, the trial court ruled that West' s refusal to obey a court order was willful. But the

trial court failed to identify any order that West violated. The trial court did not order West to

prosecute his case, and our review of the record found no violation of any order. Therefore, to




7 Neither party cites authority addressing this precise issue.
 8
     Citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992), the
 Port argues that we should not consider whether the trial court abused its discretion because
 West originally sought de novo review and addressed the abuse of discretion standard for the
 first time in his reply brief. We disagree. Although RAP 10. 3(                a)(   6)   provides     in   part, "   The court
              encourages a concise statement of             the   standard of review as     to   each   issue," the Port
 ordinarily
 cites no case in which a party waived an argument by failing to address the correct standard of
 review in its original brief. See Br. of Resp' t at 36 -37. Because West' s original brief argues that
 the trial court erred by dismissing his claim to the extent it relied on its inherent power, West did
 not raise this issue for the first time in reply.



                                                              11
No. 43004 -5 -II



the extent the dismissal rests on West' s refusal to obey a court order, the trial court abused its

discretion by dismissing West' s suit for an untenable reason.

            Second, the trial court exercised its inherent authority to dismiss the case for want of

prosecution. But CR 41( b)( 1) limits a trial court' s inherent power to dismiss actions for want of

prosecution.       Wallace, 131 Wn.2d at 575, 577. A trial court may dismiss for want of prosecution

on the basis of its inherent power only where CR 41( b)( 1) does not address the circumstances,

i. e.,   where   the   plaintiff   has   engaged    in "` unacceptable litigation practices other than mere


inaction. "'     Bus. Servs. ofAm. II, Inc. v. WaferTech LLC, 174 Wn.2d 304, 308, 274 P. 3d 1025

 2012) ( quoting Wallace, 131 Wn.2d                  at   577). Examples of such unacceptable practices include


  failures to                        late briefs,                                             dilatory      behavior." Bus.
                  appear,   filing                  and    similarly   egregious sorts of




Servs., 174 Wn.2d at 311.


            Here, the trial court found that West engaged in only one dilatory behavior: inaction. But

mere inaction is insufficient to support dismissal of an action on the basis of the trial court' s

inherent     power.      Bus. Servs.,      174 Wn.2d at 308,, 311; Wallace, 131 Wn.2d at 577. By basing the

order of dismissal on untenable reasons; the trial court abused its discretion. See Mayer; 156
                   -

Wn.2d at 684.


            Arguing to the contrary, the Port claims that the record would support dismissal as an
exercise of       inherent   power on      the   grounds    that West was     dilatory   in two   other respects: (      1) West


failed to appear at the March 4, 2011 hearing on his motion to reconsider the order of dismissal

 and ( 2)   West demonstrated "[           i] nexcusable and unprofessional dilatoriness" through a host of

 filings in this       case and related matters       he filed in   other   fora. Br.   of   Resp' t   at   33.   This claim fails




                                                                  12
No. 43004 -5 -II


because the trial court did not base the order of dismissal on these actions.9 Because the trial

court abused its discretion by dismissing West' s case, we vacate both the order of dismissal and

the order denying West' s motion for reconsideration. We remand for further proceedings

consistent with this opinion.


                  II. SHOW CAUSE HEARINGS AND DETERMINATION OF PRA VIOLATIONS

         West next argues that " the Trial Court refused to consider whether the Port had violated

the [ Public Records Act], even though the Port' s violations were apparent at the times that Mr.

West   noted   up the   show cause       hearings."     Br. of Appellant at 38 -39. By making this argument,

West is attempting to advance his argument on the merits of his claim. Although neither party

questions the propriety of this argument, we do not consider it because it challenges decisions

that are neither ( 1) appealable as a matter of right nor (2) within the scope of West' s appeal from

the order of dismissal.


         The only two methods for seeking review of a superior court' s decision are appeal as a
matter of right and      discretionary        review.   RAP 2. 1(   a).   RAP 2. 2( a) lists the types of decisions


that are appealable -as a matter of right.- In re Dependency of Chubb, 112 Wn.2d 719, 721, 773

P. 2d 851 ( 1989).      But a decision on a party' s motion seeking a show cause hearing to determine

the   merits of   the party' s   claim   is   not appealable as a matter of right under       RAP 2. 2( a). 10   Meadow

Park Garden Assocs. v. Canley, 54 Wn. App. 371, 372, 773 P. 2d 875 ( 1989).


9 The trial court never exercised its discretion by determining whether West' s other actions were
dilatory and, if so, whether they were so egregious that dismissal of the action was warranted as
a sanction.



 10 When a decision is not appealable, it is reviewable solely according to the method for seeking
 discretionary review. Chubb, 112 Wn.2d at 721; see RAP 2. 3. But West did not seek
 discretionary review.


                                                              13
No. 43004 -5 -II


          Here, West' s second notice of appeal sought review of the order of dismissal and " all


interlocutory    orders,"   apparently including the decisions on West' s show cause motions. CP at

662. But a notice of appeal is not a proper method of seeking review of these decisions because

they are not appealable as a matter of right. Chubb, 112 Wn.2d at 721; Meadow Park, 54 Wn.

App. at 372.

          In addition, West' s challenge to the trial court' s decisions on his show cause motions is
                                                                             11
outside   the   scope of   his   appeal   from the   order of   dismissal.        Under RAP 2. 4( b), the scope of


our review of trial court decisions not designated in the notice. of appeal includes decisions that

 1) prejudicially affected the order designated in the notice of appeal and ( 2) occurred before we

accepted review. A decision prejudicially affected an order if the order would not have

happened but for the earlier decision. Right - rice Recreation, LLC v. Connells Prairie Cmty.
                                             P

Council, 146 Wn.2d 370, 380, 46 P. 3d 789 ( 2002). Because the order of dismissal would have


happened regardless of-he trial court' s decisions on West' s show cause motions, the decisions
                      t

on the show cause motions did not prejudicially affect the order of dismissal.

          Thus-the trial court' s orders on West' s show cause motions are neitherappealable as a

matter of right nor within the scope of West' s appeal from the order of dismissal. See RAP 2. 2,

2. 4. Therefore, we decline to consider West' s argument.




11 The trial court' s order of dismissal was appealable as a matter of right. RAP 2.2( a)( 3);
Munden v. Hazelrigg, 105 Wn.2d 39, 44, 711 P. 2d 295 ( 1985).


                                                            14
No. 43004 -5 -II


                                    III. APPOINTMENT OF A SPECIAL MASTER


       West further claims that the trial court erred by " appointing a special master to decide the

ultimate   issues in the   case."   Br. of Appellant at 47. We similarly decline to consider this claim

because it also raises an issue that is not appealable.

       Pursuant to CR 53. 3, the trial court appointed the special master to review the records


responsive to West' s request and the Port' s claimed exemptions from disclosure. CR 53. 3

authorizes a trial court to appoint a special master " to adjudicate discovery disputes."

        A   pretrial   discovery    order   is   not appealable as a matter of right.     See RAP 2. 2( a). In


addition, the trial court' s order appointing a special master did not prejudicially affect the trial

court' s appealable order of dismissal for want of prosecution. See RAP 2. 4; Right -
                                                                                    Price, 146

Wn.2d at 380. Therefore we decline to consider West' s claim that the trial court erred by

appointing the special master.

                                       ATTORNEY FEES ON APPEAL


        Each party requests an award of attorney fees on appeal. A party may recover attorney

fees on appeal if applicable law authorizes the award." RAP 18. 1( a).

           Citing   RCW 42. 56. 550( 4), West        requests   attorney fees "   on appeal ...   and upon remand




to the Trial Court."       Br. of Appellant at 48. We deny the request.

           RCW 42. 56. 550( 4) provides in part:


           Any person who prevails against an agency in any action in the courts seeking the
           right to inspect or copy any public record or the right to receive a response to a
           public record request within a reasonable amount of time shall be awarded all




                                                             15
No. 43004 -5 -II



          costs, including reasonable attorney fees, incurred in connection with such legal
                  12
          action.




A person prevails in a public records suit upon showing that, as a matter of law, the agency failed

to disclose records upon request. Spokane Research ADef.Fund v. City ofSpokane, 155 Wn.2d

89, 103, 117 P. 3d 1117 ( 2005). Because the trial court dismissed West' s suit without


determining whether the Port failed to disclose records, at this stage RCW 42. 56. 550( 4) provides

no basis to award West attorney fees on appeal or upon remand. We deny West' s attorney fee

request.




          Citing RCW 4. 84. 185 and RAP 18. 9, the Port contends that it is entitled to reasonable

attorney fees for defending a frivolous appeal. We disagree. Under RCW 4. 84. 185, an action is
frivolous if, considering the action in its entirety, it cannot be supported by any rational argument
based in fact or law. Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758, 785, 275 P. 3d 339,

review    denied, 175 Wn.2d 1008 ( 2012).     Under RAP 18. 9, an appeal is frivolous if it is so devoid

of merit that there exists no reasonable possibility of reversal. In re Marriage ofHealy, 35 Wn.

App.    402, 406, 667 P. 2d 114 ( 1983).   Because this action clearly is not frivolous under either

standard, the Port' s request fails. We decline both parties' requests for attorney fees.




 12 In 2011, the legislature amended RCW 42. 56. 550( 4) to eliminate a minimum penalty for each
 day that an agency denied a person the right to inspect or copy a public record. LAWS of 2011,
 ch.   273, § 1.    The amendment does not affect this analysis.




                                                     16
No. 43004 -5 -II



            Because the trial court erred by dismissing West' s case, we vacate the order of dismissal

and   the   order   denying   reconsideration.   We remand for further proceedings consistent with this


opinion.




            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.




                                                                         Worswick, C. J.




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