Filed Washington State Court of Appeals Division Two
March 26, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JASON E. STEVENS, No. 57858-1-II
Appellant,
v.
STATE OF WASHINGTON, DEPARTMENT PUBLISHED OPINION OF HEALTH, NURSING CARE QUALITY ASSURANCE COMMISSION,
Respondents.
CRUSER, A.C.J. — The Department of Health, Nursing Care Quality Assurance
Commission (Department) suspended Jason Stevens’ nursing license in December 2019 for
unprofessional conduct, after holding an administrative hearing. Stevens filed a petition for judicial
review in March 2020. The Department filed a motion to dismiss in June 2022. Before the hearing
on the motion to dismiss, Stevens noted the action for trial. Even though the case was noted for
trial, the superior court granted the motion to dismiss because the court had not received the
complete administrative record and the case was therefore not ready to be scheduled pursuant to
former THURSTON COUNTY SUPER. CT. LOCAL CIV. R. 40(b)(3)(C) (2018) (LCR 40(b)(3)(C)).
Stevens argues that the Department was at fault for causing the delay in producing the
administrative record, and as such, the case should not have been dismissed according to CR
41(b)(1). The Department contends that it was Stevens who caused the delay in producing the No. 57858-1-II
record, and as such, the action was properly dismissed. Stevens also argues that because he noted
the action for trial before the hearing on the motion to dismiss, under CR 41(b)(1), the trial court
erred in granting the motion. With respect to this latter argument, the Department counters that the
trial court properly dismissed the case because Stevens failed to comply with a local court rule in
noting the action for trial, and therefore, his note for trial was insufficient.
Whether the action was properly dismissed hinges on which party caused the delay in
noting the case for trial, whether the manner in which Stevens noted the case for trial was
sufficient, and the interaction between CR 41(b)(1), LCR 40(b)(3)(C), and the Administrative
Procedure Act. Because the Department caused the delay in producing the record, and because
Stevens did note the case for trial before the hearing on the motion to dismiss in a manner sufficient
to meet the time limit exception listed in CR 41(b)(1), the trial court erred in dismissing Stevens’
petition. Accordingly, we reverse and remand for proceedings consistent with this opinion.
FACTS
I. AGENCY PROCEEDINGS
During an administrative hearing in July 2019, the Department found that Jason Stevens
engaged in unprofessional conduct involving the misuse and misappropriation of controlled
substances. In December 2019, the Department suspended Stevens’ nursing license for
unprofessional conduct after finding that he misappropriated narcotics and was impaired while
working. The Department issued its final order, findings of fact, and conclusions of law on
December 6, 2019. On March 13, 2020, the Department entered its amended findings of fact,
conclusions of law, and final order.
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II. REQUEST FOR RECORD & PETITION FOR JUDICIAL REVIEW
On July 31, 2019, Stevens sent a fax to the Department’s Adjudicative Clerk’s Office
(ACO) requesting a copy of the administrative record and information on how to pay for it. He
wrote, “Please also let me know cost $ if any for copies so I may forward payment.” Clerk’s Papers
(CP) at 64. The ACO did not respond to the fax.
On March 19, 2020, Stevens filed a petition for judicial review in Thurston County
Superior Court. On April 8, 2020, the ACO informed Stevens that it received his petition for
judicial review, and instructed him to contact a court reporter to both arrange and pay for the
administrative record to be transcribed and provided to the court. In its letter, the ACO stated, “The
court reporter is Capitol Pacific Reporting their phone number is . . . .” Id. at 81. The letter
explained that the ACO would transmit the agency record to the court upon receipt of the transcript.
On the day that Stevens filed his petition, the court sent the parties notice of the trial setting,
which was scheduled for July 24, 2020. On August 14, 2020, the court struck the trial date because
it did not have the administrative record.
In March 2021, Stevens contracted with court reporter Rose Landberg, with Lickety Split
Transcripts to transcribe the July 2019 administrative hearing. Stevens paid Landberg $1,821.25.
The same month, Stevens filed a statement of arrangements. He notified the Department of the
statement of arrangements and indicated that he ordered the transcript from Lickety Split
Transcripts and that it would be ready by April 5, 2021. In response, the ACO sent Stevens’
attorney a copy of the same letter it sent back in April 2020. The Department did not inform
Stevens that it had any objection to Lickety Split Transcripts serving as the court reporter, nor did
it transmit the agency record to the court. At that time, around May or June 2021, Stevens believed
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that Landberg would file the transcript with the ACO shortly, if she had not already done so.
However, due to a misunderstanding on Landberg’s part, she did not file the transcript with the
court or provide a copy to the ACO but, rather, provided a PDF of the transcript to Stevens’ wife.1
Once Landberg became aware of the mistake she sent a digital copy of the transcript to the
Department in May 2022.
III. MOTION TO DISMISS
In April 2022, the Department filed a motion to dismiss for want of prosecution. The court
scheduled a hearing for May 13, 2022. On May 9, 2022, Stevens filed an amended statement of
arrangements, confirming that he had arranged and paid for the transcript, and noted the case for
trial. In the amended statement of arrangements, Stevens stated that the transcript would be
submitted after a hearing on a motion to protect, which according to Stevens, was scheduled for
May 20, 2022.
On May 12, 2022, Stevens’ attorney sent an email to the ACO requesting that it preserve
the record, per RCW 34.05.566, and coordinate to arrange for payment. The ACO clerk explained,
however, that shortly after receiving the letter via email, she received another letter recalling the
initial letter and, as such, took no action on the letter nor inquired further.
The trial court heard arguments on May 13, 2022. The Department argued that Stevens did
not effectively note the case for trial because the case was not ready for trial or hearing at the time
as defined by LCR 40(b)(3)(C). The court granted the Department’s motion to dismiss. The court
1 In her declaration, Landberg stated “I completed the transcription and provided it in PDF format to Mrs. Stevens in April 2021. She paid me for the job. I did not file the transcript anywhere else as I was told it was for a RALJ appeal, which usually does not require a transcriptionist to file it with the court.” CP at 101.
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concluded that because the court had not received the administrative record or the transcript, the
note for trial setting did not comply with the local court rules. Because the trial notice did not
comply with LCR 40(b)(3)(C), the court held that it was not a proper noting of the case for trial.
The court alternately stated that “no action” had been taken on the case, and that the actions that
had been taken were insufficient. Verbatim Rep. of Proc. (VRP) (May 13, 2022) at 17. The court
did not explain why, if the transcript and administrative record are required to be filed with the
court before a case can be noted for trial, it had nevertheless set this petition for trial in July 2020.
The trial court denied Stevens’ subsequent motion for reconsideration. In so deciding, it
found that Stevens’ prior counsel was responsible for the delay rather than the Department. Stevens
now appeals, assigning error to the trial court’s dismissal of his petition for judicial review and
denial of his subsequent motion for reconsideration.
ANALYSIS
DISMISSAL FOR WANT OF PROSECUTION
Stevens argues that the trial court erred in dismissing his petition for judicial review for
two reasons. First, he argues that dismissal was improper because he noted the case for trial before
the hearing on the Department’s motion to dismiss, triggering an exception to mandatory dismissal
contained in CR 41(b)(1). And second, because the Department caused the delay in setting the case
for trial by failing to produce the administrative record in violation of the Administrative Procedure
Act, dismissal under CR 41(b)(1) was improper. The Department responds that Stevens’ May 9,
2022 trial notice was ineffective because the case was not ready to be tried under LCR 40(b)(3)(C),
and that the delay in transmitting the record was caused solely by Stevens.
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We conclude that it was the Department’s responsibility to both arrange for transcription
of the hearing and to transmit the administrative record to the superior court under the plain
language of RCW 34.05.566 and, as such, the Department was responsible for the delay in getting
this petition heard. Accordingly, the superior court’s dismissal for want of prosecution is reversed.
Dismissal was also improper because Stevens’ May 9, 2022 trial notice was sufficient to preclude
dismissal under the second time limit exception found in CR 41(b)(1), even though the case was
not at that time ready for trial because it was not in full compliance with LCR 40(b)(3)(C).
A. Legal Principles
In general, for a case to be properly noted for trial, the plaintiff must do so “within [one]
year after any issue of law or fact has been joined.” CR 41(b)(1). In Thurston County, a case must
be ready for scheduling at the time it is noted for trial. Cases involving appeals from administrative
agencies are only ready for scheduling once the complete administrative record has been provided
to the court. LCR 40(b)(3)(C). The relevant portions from these two court rules are expanded upon
below.
1. Civil Rule 41(b)(1)
We review a trial court’s interpretation of court rules de novo. Bus. Servs. of Am. II, Inc. v.
WaferTech LLC, 174 Wn.2d 304, 307, 274 P.3d 1025 (2012).
The trial court must dismiss an action for want of prosecution if CR 41(b)(1) applies. Id. at
308. CR 41(b)(1) provides,
Any civil action shall be dismissed, without prejudice, for want of prosecution whenever the plaintiff . . . neglects to note the action for trial or hearing within [one] year after any issue of law or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by the party who makes the motion to dismiss. . . . If the case is noted for trial before the hearing on the motion, the action shall not be dismissed.
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The rule as written contains two exceptions. The language regarding the first exception to the time
limit states that the plaintiff must note the case for trial “within [one] year after any issue of law
or fact has been joined, unless the failure to bring the same on for trial or hearing was caused by
the party who makes the motion to dismiss.” Id. (emphasis added). In other words, if the
Department caused the delay, resulting in Stevens noting the case for trial after the one-year time
limit had already elapsed, then the trial court should not have dismissed Stevens’ action. The
second exception to the one-year time limit in CR 41(b)(1) states that “If the case is noted for trial
before the hearing on the motion, the action shall not be dismissed.” The rule does not expand on
whether the notice must follow local court rules in order for this exception to apply.
2. LCR 40(b)(3)(C) Thurston County Local Court Rule 40 requires that a case be ready for scheduling at the
time it is noted for trial. LCR 40(b)(3)(C). A case involving an appeal from an administrative
agency is only ready for scheduling once the administrative record is delivered to the court. Id.
The rule reads, in relevant part:
3) Readiness for Scheduling. The court will enter a case schedule order only if the case is ready to be scheduled. If a case is not ready on its trial setting date, the court will strike the matter from the administrative docket and will not continue it. ....
(C) Appeals from administrative agencies, district court, and municipal courts. Cases in which the court is sitting in an appellate capacity are ready to be scheduled only after the appellate record has been delivered to the county clerk or the appellant certifies that the record at this court is complete. Additionally, the court may determine that the appeal is not ready if the administrative record was submitted in a form that does not substantially comply with these local court rules.
Id. (italics omitted).
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3. Administrative Procedure Act
The Administrative Procedure Act (APA) intends “to clarify the existing law of
administrative procedure, to achieve greater consistency with other states and the federal
government in administrative procedure, and to provide greater public and legislative access to
administrative decision making.” RCW 34.05.001. RCW 34.05.566 addresses the costs associated
with producing agency records for review. The Act provides, in relevant part:
(1) Within thirty days after service of the petition for judicial review, or within further time allowed by the court or by other provision of law, the agency shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action. The record shall consist of any agency documents expressing the agency action, other documents identified by the agency as having been considered by it before its action and used as a basis for its action, and any other material described in this chapter as the agency record for the type of agency action at issue, subject to the provisions of this section.
(2) If part of the record has been preserved without a transcript, the agency shall prepare a transcript for inclusion in the record transmitted to the court, except for portions that the parties stipulate to omit in accordance with subsection (4) of this section.
(3) The agency may charge a nonindigent petitioner with the reasonable costs of preparing any necessary copies and transcripts for transmittal to the court. A failure by the petitioner to pay any of this cost to the agency relieves the agency from the responsibility for preparation of the record and transmittal to the court.
RCW 34.05.566 (emphasis added).
B. Application
Stevens argues that “under CR 41(b)(1), a court does not have authority to dismiss a case
if the moving party caused the delay.” Br. of Appellant at 16. He contends that “the Department
caused the delay because it did not comply with its obligations under the [APA].” Id. He also
argues that the trial court erred in dismissing his petition “because he noted the case for trial before
the hearing on the Department’s motion to dismiss.” Id. at 14 (boldface omitted). The Department
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responds that it was Stevens who caused the delay in producing the administrative record because
he failed to pay the costs to prepare the record, thereby causing the delay in noting the case for
trial on time. While Stevens did not properly note the case for trial within the statutory time limit
of one year outlined in CR 41(b)(1), both exceptions to the dismissal requirement found in CR
41(b)(1) apply because the Department caused the delay in failing to fulfill its statutory duties to
produce the administrative record, and because Stevens noted the case for trial before the hearing.
1. Dismissal was improper because the Department caused the delay by failing to fulfill its duty to produce the administrative record. Stevens argues that because he noted the case for trial before the hearing on the motion to
dismiss, and because the “Department caused the trial setting delay by failing to produce the
administrative record,” his petition for judicial review should not have been dismissed under CR
41(b)(1). Id. at 16 (boldface omitted). He asserts that “the Department did not comply with its legal
obligations under the [APA],” and therefore “dismissal was inappropriate.” Id. at 1. Stevens relies
on the plain language in RCW 34.05.566—arguing that it “clearly sets forth the responsibilities of
the agency and the petitioner.” Id. at 16. Specifically, the agency is responsible for producing the
administrative record within 30 days of a petitioner filing a petition for judicial review, and the
agency is responsible for providing the record to the court. The petitioner’s only duty under the
statute is to “ ‘pay reasonable costs,’ ” which Stevens sought to do in July 2019 by faxing an
inquiry to the ACO. Id. at 17 (quoting RCW 34.05.566(3)).
The Department argues that it was not the agency, but Stevens, who caused the delay in
providing the court with the administrative record. According to the Department, Stevens’ “failure
to timely pay the reasonable costs of the court transcript and other necessary copies of the agency
record was the sole reason for the delay.” Br. of Resp’t at 17. However, the ACO never responded
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to Stevens’ July 2019 fax inquiring about paying for the record. Nor did the ACO, or any agency
member, contact Stevens regarding payment for the record. The Department argues that Stevens’
fax “cannot possibly be a request for the costs of an administrative record,” because the fax was
sent in July 2019, and at that point, no final order had been issued, nor had Stevens filed a petition
for judicial review. Id. at 19 n.4. As such, the Department argues, the record was not yet complete,
and therefore, Stevens’ fax did not count as a request for the costs.
The statute states, “Within [30] days after service of the petition for judicial review, . . . the
agency shall transmit to the court the original or certified copy of the agency record for judicial
review of the agency action.” RCW 34.05.566(1). Stevens filed a petition for judicial review in
Thurston County Superior Court on March 19, 2020. The trial court notified the parties of the trial
setting on the same day. Accordingly, based on the plain language of the statute, the Department
was responsible for providing the agency record to the court by April 18, 2020, which it failed to
do.
The Department did not fulfill its statutory duties to provide the administrative record to
the court within the 30-day period laid out in RCW 31.05.566(1). Instead, on April 8, 2020, the
ACO sent Stevens a letter stating, “The party seeking review is responsible for arranging for, and
paying the court reporter for preparation of the transcript.” CP at 81. The letter not only directs
Stevens to contact a court reporter and to pay the court reporter to transcribe the record and send
it to the court, but it instructs Stevens to use the reporter of the agency’s choosing (Capitol
Reporting). These instructions contradict the language in RCW 34.05.566, which says that “the
agency shall transmit [the record] to the court,” and goes on to explain that “if part of the record
has been preserved without a transcript, the agency shall prepare a transcript for inclusion in the
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record transmitted to the court.” The letter from the ACO shifts the Department’s responsibility
onto Stevens.
In regard to payment for the record, RCW 34.05.566 states, “The agency may charge a
nonindigent petitioner with the reasonable costs of preparing any necessary copies and transcripts
for transmittal to the court.” The statute does not state that a petitioner must contract with a court
reporter and arrange for the record to be transcribed. The letter from the ACO states, “The ACO
is not required to transmit the agency record until all necessary transcripts are received and the
party seeking review pays the agency’s cost of preparing the record.” CP at 82. This goes against
RCW 34.05.566, which, to reiterate, says that “the agency shall transmit [the record] to the court .
. . the agency shall prepare a transcript . . . [t]he agency may charge a nonindigent petitioner . . .”
(Emphasis added.) Through the letter, the ACO neglected their administrative duties and delegated
those duties to Stevens.
The Department argues that Stevens’ failure to make reasonable and timely payment is the
sole cause of the delay in producing the record for the court. Specifically, the Department argues
that the agency was relieved of its duty to produce the record because Stevens failed to provide
the reasonable costs to prepare the record. The relevant section of the statute states, “A failure by
the petitioner to pay any of this cost to the agency relieves the agency from the responsibility for
preparation of the record and transmittal to the court.” RCW 34.05.566(3).
The Department conflates the question of who has the duty to prepare the record with the
question of who has the obligation to pay for it. The former obligation rests with the Department
and the latter rests with Stevens, as he readily acknowledged throughout the litigation below. The
Department is correct that the agency would be relieved of the duty to produce to the administrative
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record if the only issue were that Stevens did not pay the required costs. However, that was not the
central cause of the delay in producing the record in this case. Rather than requesting the
appropriate payment from Stevens within the 30-day window in which the agency was required to
produce the record, the ACO neglected its statutory duties and tried to delegate those duties to
Stevens in the April 2020 letter.
The language in RCW 34.05.566 does not state that it is the responsibility of the petitioner
to proactively reach out to the agency to arrange for paying for the administrative record. Even if
that were the law, Stevens did proactively reach out to the ACO to inquire about whether he needed
to provide payment for the record in the fax he sent on July 31, 2019. The fax reads, “Please send
a complete copy of the record for the case . . . . Please also let me know what cost $ if any for
copies etc so I may forward payment.” CP at 64 (boldface omitted). The ACO never responded to
his inquiry.
In the Department’s response to petitioner’s motion for reconsideration, the Department
argued that Stevens’ fax was a public records request, not an administrative records request, and
therefore, it did not suffice as “an attempt to make arrangements to have the administrative record
transmitted to this Court and to pay for the cost.” Id. at 97. However, the Department does not
offer any support for this argument aside from stating that Stevens referred to the fax as a public
record request in his declaration. Regardless, the distinction between a public records request and
an administrative records request appears to be irrelevant because the statutory language places
the responsibility on the agency to produce the administrative record within 30 days of the filing
of the petition for judicial review, and it also places the responsibility on the agency to charge the
petitioner reasonable costs.
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Additionally, Stevens in fact did make payments to prepare the transcripts and send the
record to the court. He contracted with certified court reporter Rose Landberg, through Lickety
Split Transcripts in March 2021 and paid $1,821.25 to transcribe the administrative hearing. He
confirmed this in a statement of arrangements which he filed in the superior court on March 17,
2021, and sent to the ACO as well. The ACO responded by resending Stevens a copy of the April
2020 letter, which was unhelpful to Stevens not only because it reiterated, incorrectly, that Stevens
was required to use Capitol Reporting as the transcriber, but also because it contained no new
instructions to him about how get the record transmitted to the court.
The Department relies on Ms. Landberg’s erroneous failure to file the transcript with the
superior court for its contention that it was Stevens who caused the delay in producing the record.
Although it is true that the transcript prepared by Lickety Split Transcripts was not provided to the
court before the case was noted for trial and before the hearing on the motion to dismiss, Stevens’
actions show that he made a reasonable effort to fulfill his duty to pay for the administrative record.
He reached out to the ACO in July 2019 to inquire about payment, contracted with a court reporter,
and ultimately paid nearly $2,000 to prepare the record. These facts cut against the Department’s
argument that Stevens caused the delay in failing to make reasonable payments. Moreover, as we
note above, it was the Department’s obligation to produce both the administrative record and to
arrange for transcription of the hearing, notwithstanding Stevens’ obligation to pay the reasonable
cost of producing these items. As such, it was the Department, not Stevens, who caused the delay
in noting the case for trial, and the trial court erred in dismissing the case.
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2. Dismissal was improper because Stevens noted the case for trial before the hearing on the Department’s motion to dismiss for want of prosecution.
The Department contends that Stevens’ trial notice should not have precluded dismissal
under CR 41(b)(1) because the case was not ready to be scheduled for trial under LCR 40(b)(3)(C).
We disagree.
Pursuant to CR 41(b)(1), “[i]f the case is noted for trial before the hearing on the motion
[to dismiss], the action shall not be dismissed.” In Snohomish County v. Thorp Meats, 110 Wn.2d
163, 168–69, 750 P.2d 1251 (1988), the supreme court held that
the final sentence of CR 41(b)(1) means precisely what it says, a case shall not be dismissed for want of prosecution if it is noted for trial before the hearing on the motion to dismiss. The rule as it has read since 1967 thus limits the power of the trial court to dismiss for failure to prosecute after the issue is joined and the case noted for trial.
In explaining the history of the rule, the court explained that before CR 41(b)(1) was adopted in
1967, under its predecessor, a party could only avoid dismissal for want of prosecution by noting
the action for trial within one year of issues being joined. Id. at 167-68. Critically, when CR
41(b)(1) was adopted, the final sentence was added stating that a second exception to the time limit
applies when a party notes the action before the hearing on the motion. The supreme court further
explained that “[t]his sentence was promulgated to encourage cases to be heard on the merits, the
courts recognizing that involuntary dismissal for want of prosecution ‘is punitive or administrative
in nature and every reasonable opportunity should be afforded to permit the parties to reach the
merits of the controversy.’ ” Id. at 168 (quoting Yellam v. Woerner, 77 Wn.2d 604, 608, 464 P.2d
947 (1970)).
In Thorp Meats, as is the case here, the appellants filed a note for trial setting prior to a
hearing on the respondent’s motion to dismiss. Id. at 165. The superior court granted the motion
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to dismiss, basing its decision on “the court’s inherent discretion to dismiss actions.” Id. The court
of appeals reversed the dismissal, and the supreme court affirmed. The court explained, “It would
be illogical to now rule that while dismissal under CR 41(b)(1) is mandatory if the circumstances
fit within the rule, nondismissal somehow requires or even allows the exercise of a trial court’s
discretion in this situation.” Id. at 168.
Here, Stevens noted the case for trial on May 9, 2022. The hearing for the motion to dismiss
was held on May 13, 2022. In granting the motion to dismiss, the trial court reasoned that because
it had not received the complete administrative record, Stevens’ note for trial setting was
inoperative because the requirements of LCR 40(b)(3)(C) had not been satisfied. The court stated
that “noting it for trial setting is insufficient, and that doesn’t comply with our rule. We can’t
schedule it unless we have your availability dates and the administrative record.” VRP (May 13,
2022) at 13.
The trial court concluded that because Stevens failed to comply with the logistics outlined
in LCR 40(b)(3)(C) prior to his action for trial, he was not entitled to the benefit of the clear
language of CR 41(b)(1). However, this reasoning undermines CR 41(b)(1)’s intent to have cases
heard on their merits rather than dismissed due to procedural delinquencies. It bears repeating that
Stevens attempted to have this record completed and transmitted to the superior court, even when
the obligation for doing so rested with the Department. The trial court’s reasoning undermined CR
41(b)(1) and frustrated the administration of justice.
Our supreme court’s decision in Yellam is instructive here:
It is apparent the modification of [CR 41(b)(1)] was promulgated to encourage cases to be heard on the merits by allowing plaintiffs, who may have become innocently ensnared with dilatory pleading practices, a final opportunity to note their cause for trial even after the 1-year period of time had run. The amended
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version also tends to eliminate the procedural confusion which may have [confronted] litigants in counties with local rules such as Rule 35(b) Special Rules of the Superior Court for King County.
77 Wn.2d at 608 (emphasis added).2
CR 41(b)(1) precludes dismissal of a case for want of prosecution when the party against
whom dismissal is sought files a note for trial before the hearing on the motion to dismiss. Stevens
filed his note for trial before the hearing on the Department’s motion, and the trial court thus erred
in dismissing his case.
CONCLUSION
The trial court erred in dismissing Stevens’ petition for judicial review because the delay
in noting the matter for trial was caused by the Department’s failure to comply with RCW
34.05.566, and because Stevens noted the case for trial before the hearing on the Department’s
motion to dismiss for want of prosecution. Accordingly, we reverse the superior court and remand
for proceedings consistent with this opinion.
2 As an example of a case where, because of the operation of a local court rule, a plaintiff’s attempt to note a case for trial was thwarted by the superior court, the Yellam court cited Simpson v. Glacier Land Co., 63 Wn.2d 748, 750, 388 P.2d 947 (1964). 77 Wn.2d at 608. In that case, the plaintiff filed a trial notice but the superior court clerk refused to accept it because the notice did not comply with King County Rule 35(b). Simpson, 63 Wn.2d at 750.
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CRUSER, A.C.J. We concur:
MAXA, J.
VELJACIC, J.