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36252-0 - II - Arthur S.west, Appellant V. Thurston County, Et Al, Respondents File Date 05/13/2008
Court of Appeals Division II
State of Washington

Opinion Information Sheet

Docket Number: 36252-0
Title of Case: Arthur S.west, Appellant V. Thurston County, Et Al, Respondents
File Date: 05/13/2008

SOURCE OF APPEAL
----------------
Appeal from Mason County Superior Court
Docket No: 07-2-00108-9
Judgment or order under review
Date filed: 03/26/2007
Judge signing: Honorable Toni A Sheldon

JUDGES
------
Authored byDavid H. Armstrong
Concurring:Elaine Houghton
J. Robin Hunt

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
 Arthur S West   (Appearing Pro Se)
 120 State Ave Ne #1497
 Olympia, WA, 98501

Counsel for Respondent(s)
 Marc Rosenberg  
 Lee Smart PS Inc
 701 Pike St Ste 1800
 Seattle, WA, 98101-3929

 Michael Alexander Patterson  
 Patterson Buchanan Fobes Leitch & Kalzer
 601 Union St Ste 4200
 Seattle, WA, 98101-4036
			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

ARTHUR S. WEST,                                                  No.  36252-0-II

                             Appellant,

       v.

THURSTON COUNTY; MICHAEL A.                                 PUBLISHED OPINION
PATTERSON; LEE, SMART, COOK, 
MARTIN & PATTERSON, P.S., INC.,

                             Respondents.

       Armstrong, J.?Arthur West sought public disclosure of records of the defendant law 

firm?s billings to Thurston County. West also sued the law firm for breach of its contract with the 

County.  The trial court dismissed both claims and West now appeals.  We affirm dismissal of the 

contract action because West was not a party to the contract and thus lacked standing.   But we 

reverse the dismissal of the public disclosure claim.  West was entitled to the non-privileged parts 

of the firm?s billings, and although the County produced the records, it did so only after West 

sued to compel production.  Accordingly, West is entitled to costs and penalties for the County?s 

failure to timely produce the records, and we remand for a determination thereof.

No. 36252-0-II

                                             Facts

       Relying on the Public Records Act, chapter 42.56 RCW, Arthur West asked Thurston 

County for copies of the attorney fee invoices submitted by Lee, Smart, Cook, Martin & 

Patterson, PS, Inc. for its defense of the County in Broyles v. Thurston County, Mason County 

Superior Court cause number 04-2-00411-3.  When the County refused his request, West sued 

the County, the Lee Smart firm, and Michael Patterson, an attorney with Lee Smart who 

represented the County in the  Broyles  case.  West alleged claims of breach of contract, 

negligence, and violation of the Public Records Act and sought relief under the Declaratory 

Judgments Act.  

       The County responded by giving West copies of the first $250,000 in attorney invoices 

submitted in the Broyles action, with the subject matter redacted.  The redacted invoices reflected 

the dates of service, the timekeepers, and the amount of time each timekeeper billed on a daily 

basis.  The County asserted that it possessed only those invoices up to the amount of its $250,000 

insurance deductible.  

       West continued with his lawsuit and on March 12, 2007, the trial court dismissed all of his 

claims with prejudice except the Public Records Act claim.  West moved for reconsideration on 

March 22.  On March 26, the trial court dismissed his remaining Public Records Act claim, and 

West sought reconsideration of that ruling.  On April 25, West appealed the trial court?s orders of 

March 12 and 26.  After the trial court denied his motions for reconsideration, West filed an 

amended notice of appeal.  

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No. 36252-0-II

                                            Analysis

                                  I.  Breach Of Contract Claim

       We first address whether the trial court properly dismissed West?s breach of contract 

claim under CR 12(b)(6).  

       The County argues initially that West?s appeal of this dismissal is untimely because he did 

not file a notice of appeal until April 25, which was more than 30 days after the March 12 ruling.  

See RAP 5.2(a) (notice of appeal must be filed within 30 days after entry of the trial court?s 

decision).  On March 12, however, the trial court postponed ruling on West?s Public Records Act 

claim.  Consequently, its March 12 order was a partial judgment and appealable only after an 

express direction by the trial court for entry of judgment and an express determination in the 

judgment, supported by written findings, that there was no just reason for delaying an appeal.  

RAP 2.2(d); 2A Karl B. Tegland, Washington Practice:  Rules Practice, RAP 2.2 at 97 (6th ed. 

2004).  Because the trial court issued no such direction or determination, West?s appeal of its final 

judgment brought the earlier partial judgment up for review as well.   See  RAP 2.2(d); 2A 

Tegland, Wash. Prac. at 98.  Consequently, West?s first notice of appeal, which was filed within 

30 days of the trial court?s final March 26 judgment, was sufficient to render his appeal of the 

March 12 ruling timely.  And that appeal brought up for review the trial court?s subsequent order 

denying reconsideration, thus rendering West?s amended notice of appeal unnecessary.  See CR 
59(b); RAP 2.4(f).1

1 West?s failure to ?note? his initial motion for reconsideration for hearing when he filed it on 
March 22 did not render the motion untimely and did not preclude an appeal from the ruling on 
the motion.  4 Karl B. Tegland, Washington Practice:  Rules Practice, CR 59 at 497 (5th ed. 
2006) (citing In re Turay, 139 Wn.2d 379, 391, 986 P.2d 790 (1999)).

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No. 36252-0-II

       Turning to the merits of the trial court?s March 12 decision, the only evidence in the 
record relevant to it is West?s complaint.2 West contended in his complaint that by resisting his 

Public Records Act request,  ?and by attempting to secure what must be presumed to be 

unconscionable fees,? Patterson and the Lee Smart firm had breached ?the express and implied 

terms of their contract with Thurston County, and plaintiff West, a citizen of Thurston County[.]?  

Clerk?s Papers (CP) at 147.  West thus asserted that he had a cause of action because Lee Smart 

and Patterson had breached their contract with the public and the County.

       CR 12(b)(6) permits dismissal of a complaint for ?failure to state a claim upon which relief 

can be granted.? Under this rule, dismissal is appropriate only if it appears beyond doubt that the 

plaintiff can prove no set of facts that would justify recovery.  Tenore v. AT&T Wireless Servs.,

136 Wn.2d 322, 330, 962 P.2d 104 (1998).  

       The County asserts that West lacks standing to assert a breach of contract claim against 

Patterson and the Lee Smart law firm.  The doctrine of standing prohibits a litigant from asserting 

another?s legal right.   Miller v. U.S. Bank, 72 Wn. App. 416, 424, 865 P.2d 536 (1994).  

Standing is a question of law that we review de novo.  Kayes v. Pac. Lumber Co., 51 F.3d 1449, 

1454 (9th Cir. 1995); In re Guardianship of Karan, 110 Wn. App. 76, 81, 38 P.3d 396 (2002).  

       We agree that West had no right to assert a breach of contract claim against Patterson or 

the Lee Smart firm either on his own or the County?s behalf.  See Trask v. Butler, 123 Wn.2d 

835, 843, 872 P.2d 1080 (1994) (where nonclient plaintiff is not intended beneficiary of 

2 The record does not include the County?s motion to dismiss, West?s opposition, or the County?s 
reply, all of which the trial court considered in granting the motion to dismiss.  Nor does the 
record include a transcript of the hearing on the motion.

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No. 36252-0-II

transaction to which attorney?s advice pertained, no further inquiry regarding duty of care owed 

to plaintiff is required);  Warner v. Design and Build Homes, Inc., 128 Wn. App. 34, 43, 114 

P.3d 664 (2005) (indirect benefit to third party insufficient to demonstrate intent to create a 

contract directly obligating the promisor to perform a duty to third party).  

       In West?s motion for reconsideration of the CR 12(b)(6) dismissal, he sought to introduce 

?newly discovered evidence? and to amend his complaint in light of this evidence.  CP at 40-41.  

He referred to his own declaration, contending that Patterson, who had represented the County in 

Broyles and had denied West?s request for the invoices, was appearing in violation of RCW 

36.32.200.  RCW 36.32.200 provides:

              It shall be unlawful for a county legislative authority to employ or contract 
       with any attorney or counsel to perform any duty which any prosecuting attorney 
       is authorized or required by law to perform, unless the contract of employment of 
       such attorney or counsel has been first reduced to writing and approved by the 
       presiding superior court judge of the county in writing endorsed thereon.  This 
       section shall not prohibit the appointment of deputy prosecuting attorneys in the 
       manner provided by law.
              Any contract written pursuant to this section shall be limited to two years 
       in duration.

       Attached to West?s declaration were documents showing that Patterson was appointed to 

represent the County in the Broyles case on January 24, 2003.  West thus contended that neither 

Patterson nor the Lee Smart firm was authorized to represent the County and to administer 

compliance with the Public Records Act either before January 24, 2003, or after January 24, 

2005.  

       The trial court did not abuse its discretion in denying West?s motion for reconsideration.  

See Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 

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No. 36252-0-II

(2002).  The documents West submitted with his motion were not newly discovered evidence 

because West made no showing that he could not have obtained them earlier.  See CR 59(a)(4); In 

re Marriage of Tomsovic, 118 Wn. App. 96, 109, 74 P.3d 692 (2003).  West asserts in his reply 

brief that the trial court committed reversible error by failing to allow him to amend his complaint 

to include an assertion that the contract between the County and Patterson was unconscionable 
and violated public policy.3 We do not consider assertions of error made for the first time in a 

reply brief.  State v. White, 123 Wn. App. 106, 115 n.1, 97 P.3d 34 (2004) (citing Cowiche 

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)).  As West had no 

right to assert a breach of contract claim against the attorneys who represented the County, the 

trial court properly dismissed that claim under CR 12(b)(6).

                                 II.  Public Records Act Claim

       West next argues that the trial court erred in concluding that the attorney fee invoices he 

sought were exempt from disclosure under the Public Records Act, chapter 42.56 RCW. 

       The County responds in part that because it has provided West with all the invoices in its 

possession, i.e., the invoices up to the amount of its $250,000 insurance deductible, this issue is 

moot.  An issue is moot if it is ?purely academic,? but it is not moot if its resolution can provide a 
party with effective relief.  See State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983).4  

3 In West?s motion for reconsideration, he sought  ?a reasonable opportunity to amend his 
complaint to assert causes of action for unlawful representation by counsel and unconscionable 
contract payments to a de facto officer.? CP at 43.

4 We deny the County?s request to strike West?s supplemental brief on this issue or to impose 
sanctions based on West?s allegedly tardy service of his brief on opposing counsel, as we do not 
know the date that West mailed his brief to counsel.  See RAP 18.6(b) (paper timely served if 
mailed within time permitted for service).

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No. 36252-0-II

       The Public Records Act begins with a mandate of full disclosure of public records, and 

that mandate is limited only by the precise, specific, and limited exemptions the Act describes.  

Progressive Animal Welfare Soc?y v. Univ. of Washington, 125 Wn.2d 243, 258, 884 P.2d 592 

(1995).  If public records do not fall within those exemptions, their disclosure must be timely.  

Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 102, 117 P.3d 1117 

(2005).  Penalties for late disclosure are mandatory, as RCW 42.56.550(4) provides:

              Any person who prevails against an agency in any action in the courts 
       seeking the right to inspect or copy any public record or the right to receive a 
       response to a public record request within a reasonable amount of time shall be 
       awarded all costs, including reasonable attorney fees, incurred in connection with 
       such legal action.  In addition, it shall be within the discretion of the court to award 
       such person an amount not less than five dollars and not to exceed one hundred 
       dollars for each day that he or she was denied the right to inspect or copy said 
       public record.

       Government agencies may not resist disclosure of public records until a suit is filed and 

then, by disclosing them voluntarily, avoid paying fees and penalties.   Spokane Research & 

Defense Fund, 155 Wn.2d at 103.  If the records at issue do not fall within an exemption to the 

Public Records Act, West is entitled to costs and penalties because the County did not disclose 

them until after he filed this action.

       In dismissing West?s claim, the trial court relied on RCW 42.56.290 and the trial court?s refusal 

to order the disclosure of the same invoices in the Broyles action.  RCW 42.56.290 provides that 

?[r]ecords that are relevant to a controversyto which an agency is a party but which records would not 

be available to another party under the rules of pretrial discovery for causes pending in the superior 

courts are exempt from disclosure under this chapter.?   Because the court had not  allowed the 

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No. 36252-0-II

disclosure of the County?s invoices in the Broyles case, the trial court here ruled that they were 
similarly exempt from disclosure to West.5  

       Soon after  an Olympia newspaper  requested the same attorney fee invoices, the 2007 

legislature enacted RCW 42.56.904, which provides as follows:

              It is the intent of the legislature to clarify that no reasonable construction of 
       chapter 42.56 RCW has ever allowed attorney invoices to be withheld in their entirety 
       by any public entity in a request for documents under that chapter.  It is further the 
       intent of the legislature that specific descriptions of work performed be redacted only if 
       they would reveal an attorney?s mental impressions, actual legal advice, theories, or 
       opinions, or are otherwise exempt under chapter 391, Laws of 2007 or other laws, 
       with the burden upon the public entity to justify each redaction and narrowly construe 
       any exception to full disclosure.  The legislature intends to clarify that the public?s 
       interest in open, accountable government includes an accounting of any expenditure of 
       public resources, including through liability insurance, upon private legal counsel or 
       private consultants. 

H.B. Rep. on HB 1897, at 3, 60th Leg., Reg. Sess. (Wash. 2007); S.B. Rep. on SHB 1897, at 2, 60th 

Leg., Reg. Sess. (Wash. 2007). RCW 42.56.904 took effect on July 22, 2007.  Laws of Washington, 

at ii (2007).

       The 2007 Final Legislative Report introduces this new statute with a discussion of RCW 

42.56.290, observing that ?[r]ecords that are relevant to a controversy to which an agency is a party 

that would not be discoverable to another party under the superior court rules of pretrial discovery are 

exempt from disclosure under the [Public Records] Act.?  

              Specifically exempt from disclosure is an attorney?s work product.  The courts 
       have defined work product to include factual information which is collected or 
       gathered by an attorney, as well as the attorney?s legal research, theories, opinions, and 
       conclusions.
              The attorney-client privilege also exempts certain public records from 

5 Broyles is clearly a ?controversy? under RCW 42.56.290 because the case is now on appeal.  
No. 35950-2-II; see Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993) (?controversy?
under statute encompasses anticipated, past or present litigation).

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No. 36252-0-II

       disclosure.  The attorney-client privilege, however, is a narrow privilege and protects 
       only communication or advice between attorney and client in the course of the 
       attorney?s professional employment.  

2007 Final Legislative Report, at 175.  The report adds that with the enactment of RCW 42.56.904, 

?[t]he Legislature intends to clarify that the public?s interest in open, accountable government includes 

an accounting of any expenditures of public resources on private legal counsel or private consultants.?  
2007 Final Legislative Report, at 175.6

       The County argues that we should not apply this clarifying statute retroactively to the trial 

court?s decision; we reject the argument.  We often apply statutory amendments retroactively if the 

legislature acted during a controversy regarding the meaning of the law, because the legislature?s 

timing reflects its intent to cure or clarify a statute.  McGee Guest Home, Inc. v. Dep?t of Social and 

Health Servs. of Washington, 142 Wn.2d 316, 325-26, 12 P.3d 144 (2000); see also Marine Power & 

Equip. Co. v. Wash. St. Human Rights Comm?n, 39 Wn. App. 609, 620, 694 P.2d 697 (1985) (when 

controlling law changes between the entering of judgment below and consideration of matter on 

appeal, appellate court generally should apply new or altered law).  RCW 42.56.904 was expressly 

6 Even without the clarification that RCW 42.56.904 provides, the trial court?s reliance on the 
Broyles ruling to preclude disclosure of the invoices to West is questionable.  The court denied 
the Broyles motion to compel without prejudice when the plaintiffs sought to use the invoices to 
support their own post-trial motion for attorney fees.  The Broyles court ruled that the County?s 
records were not relevant for the narrow purpose of proving the plaintiffs? requested fees and that 
they contained privileged information.  The court ruled further, however, that if the County 
challenged the amount of hours the plaintiffs spent on a specific task, it might revisit the motion to 
compel to see whether redacted portions of the bill might be relevant as rebuttal.  This ruling does 
not constitute a definitive statement that the invoices would not be discoverable under the rules of 
pretrial discovery.  Rather, it is a conditional statement that the invoices were not discoverable 
post-trial under a very specific set of circumstances.  In any event, given the enactment of RCW 
42.56.904, we are not persuaded that the Broyles ruling governs the disclosure of the invoices 
here.

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No. 36252-0-II

intended to clarify the Public Records Act?s applicability to records of public funds expended on private 

legal counsel.  The new statute clarified that attorney invoices held by a public agency may not be 

withheld in their entirety and that any work product redactions must be justified.  

       We affirm dismissal of the contract action.  We hold that the trial court erred in ruling that the 

County was not required to disclose the attorney invoices at issue under the Public Records Act.  We 

remand for a determination whether the County has, in fact, disclosed all of the invoices in its 

possession, and whether its redactions are justified as work product or privileged information.  We also 

remand for a determination of the costs and penalties to be assessed against the County for resisting 

disclosure until West filed this lawsuit.  We deny the County?s request for attorney fees under RAP 

18.1 and RAP 18.9.

       Reversed and remanded.

                                                 Armstrong, J.
We concur:

Houghton, C.J.

Hunt, J.

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