FILED JULY 23, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
KITTITAS COUNTY, a municipal ) No. 39290-2-III corporation and political subdivision of ) the State of Washington, ) ) Respondent, ) ) v. ) ) SKY ALLPHIN; ABC HOLDINGS, INC.; ) UNPUBLISHED OPINION and CHEM-SAFE ENVIRONMENTAL, ) INC., ) ) Appellants, ) ) WASHINGTON STATE DEPARTMENT ) OF ECOLOGY, ) ) Defendant. )
PENNELL, J. — This court is tasked with reviewing yet another dispute between
Sky Allphin and Kittitas County regarding Mr. Allphin’s 2012 request for records under
the Public Records Act (PRA), chapter 42.56 RCW. We have twice remanded this case No. 39290-2-III Kittitas County v. Sky Allphin
for an award of attorney fees, costs, and per diem penalties on the narrow issue of the
County’s improper withholding for 98 days of six e-mails. A remand hearing was held in
2022 and the trial court determined Mr. Allphin was entitled to $490 in penalties and
$8,750 in attorney fees and costs. On appeal, Mr. Allphin argues the trial court abused its
discretion in assessing penalties. We disagree and affirm.
FACTS
In 2012, Sky Allphin, the president of Chem-Safe Environmental, Inc., submitted
a PRA request to Kittitas County seeking records, including e-mail correspondence,
relating to an investigation of Chem-Safe and its parent company, ABC Holdings, Inc.
The request sought all records relating to Chem-Safe since 2010.
The County sought to protect some of the e-mail records from disclosure on the
basis of ongoing litigation. In early 2013, the County filed a complaint for declaratory
judgment and injunctive relief, seeking a judicial determination that certain confidential
records held by Kittitas County were exempt from disclosure.
In March 2013, the County provided Mr. Allphin with an exemption log, claiming
various documents were protected by attorney-client privilege. The County subsequently
realized that six e-mails included in the exemption log were not protected. The County
then provided Mr. Allphin the six e-mails on July 3, 2013. The parties agree the six
e-mails had been withheld from disclosure for 98 days.
2 No. 39290-2-III Kittitas County v. Sky Allphin
In January 2014, after producing more than 20,000 pages over the course of
16 installments, the County informed Mr. Allphin its response to the PRA request
was complete.
In March 2014, Mr. Allphin filed counterclaims against the County, alleging
violations of the PRA. According to the counterclaims, the County had “unlawfully
withheld and redacted non-exempt public records,” in violation of the PRA. Clerk’s
Papers (CP) at 501. Mr. Allphin asked for a daily penalty for the records the County
had failed to identify and release.
The parties filed cross motions for summary judgment. Mr. Allphin’s motion
alleged the County failed to provide its fullest assistance and unlawfully withheld
nonexempt records. The County argued there was no violation because it had produced
the six e-mails to Mr. Allphin before he filed his claim.
The trial court granted summary judgment in favor of the County, finding no
PRA violation, and dismissed Mr. Allphin’s counterclaims with prejudice.
Mr. Allphin appealed, claiming the County: (1) made improper claims that
documents were exempt from attorney-client privilege, (2) wrongfully withheld and
then subsequently produced certain records, (3) intentionally and wrongfully delayed
its response, (4) unlawfully deleted or lost responsive public records, (5) overbroadly
redacted or withheld hundreds of records with no claim of exemption, and (6) wrongfully
3 No. 39290-2-III Kittitas County v. Sky Allphin
deleted or withheld the “‘smoking gun memorandum.’” Kittitas County v. Allphin,
195 Wn. App. 355, 381 P.3d 1202 (2016) (published in part) (Allphin I), aff’d, 190
Wn.2d 691, 416 P.3d 1232 (2018) (Allphin III).
On review in 2016, we largely upheld the trial court’s ruling. In the unpublished
portion of our decision, we held Mr. Allphin had “prevailed very narrowly” on the
claim that the County violated the PRA by improperly withholding the aforementioned
six e-mails for 98 days. Allphin I, No. 33241-1-III, slip op. (unpublished portion) at 36,
https://www.courts.wa.gov/opinions/pdf/332411.pub%20in%20part.pdf. We remanded
to the trial court for “an award of costs and attorney fees reasonably incurred in
obtaining the six e-mails.” Id. We also explained the trial court had discretion under
RCW 42.56.550(4) “to award Mr. Allphin a per diem penalty for each day the County
withheld these records,” i.e., the six wrongly withheld e-mails. Id. And we noted that
“[i]f the trial court exercises its discretion to award a penalty, it also has discretion to
treat the six e-mails as one group for purposes of calculating the daily penalty.” Id. at 36-
37. In addition to remanding for a trial court award of fees, costs, and penalties, we
directed the appellate court commissioner to determine “the appropriate cost and attorney
fee award for those costs Mr. Allphin incurred on appeal relating to these six e-mails.” Id.
at 36.
4 No. 39290-2-III Kittitas County v. Sky Allphin
Mr. Allphin petitioned the Supreme Court for review. The court granted review
only as to the issue of whether work product privilege applied to the County’s withheld
records under the “‘common interest doctrine.’” Kittitas County v. Allphin, 187 Wn.2d
1001, 386 P.3d 1089 (2017). The court declined to address other issues raised by
Mr. Allphin. The Supreme Court subsequently issued an opinion affirming this court’s
opinion. Allphin III, 190 Wn.2d 691.
After the Supreme Court issued its decision, the Supreme Court Clerk took up the
issue of appellate attorney fees that had been ordered by our court. Mr. Allphin requested
nearly $80,000.00 in fees and costs. The County objected to this request. One of the
County’s objections was that Mr. Allphin had improperly included 31.9 hours of work
related to a public records request that fell outside the scope of his appeal. The Supreme
Court Clerk sustained this objection, explaining “records provided after the notice of
appeal was filed in March 2015 are not the subject of this appeal.” CP at 333. After the
Supreme Court Clerk excluded work unrelated to the instant appeal and then apportioned
the fees to the narrow scope of the six wrongly withheld e-mails, the court issued a
total award of fees and costs of $2,503.09. A supplemental judgment was issued on
January 29, 2019, in that amount.
5 No. 39290-2-III Kittitas County v. Sky Allphin
The County attempted to tender payment of the Supreme Court’s award, but
Mr. Allphin refused due to a disagreement with the satisfaction language. Mr. Allphin
claimed the language would have precluded further recovery of fees and costs and
potential per diem penalties as authorized by this court’s 2016 opinion. In February 2019,
the County informed Mr. Allphin it had deposited $2,513.79, which included
prejudgment interest, into the registry of the court in accordance with RCW 4.56.100.
Mr. Allphin did not withdraw the funds from the court’s registry. Instead, over the
course of the next two years, Mr. Allphin continued to pursue PRA claims regarding the
County.
In February 2021, the County filed a motion arguing Mr. Allphin had waived the
right to an award associated with the six e-mails. The County argued Mr. Allphin’s
failure to note the matter for hearing, coupled with his refusal to accept payment of the
Supreme Court’s supplemental judgment award, demonstrated waiver of penalties of fees
in connection with this lawsuit.
Mr. Allphin represented himself pro se in response to the County’s motion.
He adamantly denied he had waived relief. “Throughout his brief and oral argument,
Mr. Allphin intermixed his requests for penalties regarding the six e-mails with
allegations of further violations warranting a penalty. He moved for a ‘delay in hearings,’
arguing it would be premature for the court to make a ruling until the County released
6 No. 39290-2-III Kittitas County v. Sky Allphin
all the documents he felt were related to his case.” Kittitas County v. Allphin,
No. 38228-1-III, slip op. at 4 (Wash. Ct. App. Apr. 28, 2022) (unpublished)
https://www.courts.wa.gov/opinions/pdf/382281_unp.pdf (Allphin IV).
In response to Mr. Allphin’s remarks, the County asked the trial court to make a
ruling regarding the six withheld e-mails. The County asserted that “‘if Mr. Allphin
thinks there are other e-mails that are missing . . . that’s a separate matter from the status
of this—this litigation.’” Id. at 5. The County requested the court either find waiver or
simply make a decision regarding the penalty for the six withheld e-mails. Id.
The trial court took the County’s motion under advisement. “In its written
decision, rather than setting a fees and costs amount . . . as suggested in the County’s
closing remarks,” the trial court ruled Mr. Allphin had waived his right to relief. Id. at 5.
Mr. Allphin appealed the trial court’s decision, and we reversed in an unpublished
decision, dated April 28, 2022. Id. We noted Mr. Allphin’s delay was due to his
misguided belief that he needed to resolve all of his PRA claims prior to seeking an
award for the six e-mails, and his “erroneous . . . understanding of the effect of our
mandate.” Id. at 10. Because a misunderstanding is not the same as an intentional waiver,
we remanded “to the trial court for action consistent with our 2016 opinion.” Id. at 10-11.
“To avoid any confusion on remand, we direct[ed] Mr. Allphin, as the prevailing party, to
note the matter for a hearing within 90 days.” Id. at 11. Our decision did not specify
7 No. 39290-2-III Kittitas County v. Sky Allphin
whether the 90 days would begin to run with the filing of our decision or with the
mandate. This court issued a mandate, returning the case to superior court, on June 15,
2022.
On July 27, 2022—90 days after issuance of our decision—the County filed a
motion in the superior court for an order on penalties regarding the six e-mails. The
County pointed out that it had spent hundreds of hours and produced more than 20,000
pages of records in response to Mr. Allphin’s PRA request. The County argued that,
consistent with our 2016 decision, the trial court should consider the six e-mails as
a single record and impose a per diem penalty of $5 per day. Because the records were
withheld for 98 days, the County argued the total penalty should be $490. The County
justified its penalty argument by reviewing the framework set forth in Yousoufian v.
Office of Ron Sims, 168 Wn.2d 444, 229 P.3d 735 (2010) (Yousoufian II).
Two days after the County filed its motion, Mr. Allphin filed a motion for
penalties and fees. This time he was represented by counsel. Mr. Allphin argued the
County’s motion was “improper” and a “bad faith attempt to confuse this Court.” CP at
108, 112. Mr. Allphin argued that, contrary to the County’s motion, “the six emails
remanded by the Court of Appeals [were] not the only penalty issue before this Court.”
Id. at 117. According to Mr. Allphin, during the pendency of litigation, he had discovered
three new e-mail records that had not been disclosed by the County in response to his
8 No. 39290-2-III Kittitas County v. Sky Allphin
2012 PRA request. Mr. Allphin alleged the e-mails had been withheld for 6173 days. He
asked that the court “impose a separate penalty for each” of these allegedly silently
withheld records, in the amount of “$100 per day.” Id. at 120, 122 (boldface omitted).
Mr. Allphin also requested $21,060 in attorney fees. Id. at 122.
The County responded to Mr. Allphin’s motion on August 3, 2022, arguing that
Mr. Allphin’s request for per diem penalties for records other than the six e-mails were
new allegations, outside the scope of the current lawsuit. The County pointed out that
Mr. Allphin’s claims against the County for silent withholding had been dismissed on
summary judgment with prejudice back in 2015. According to the County, Mr. Allphin’s
new allegations of silent withholding had not been proved and, “[a]bsent a judicial
determination that the County denied Mr. Allphin an opportunity to inspect the New
Records in violation of RCW 42.56.550(1), Mr. Allphin [would not be] entitled to a
penalty award in connection with these records.” Id. at 344-45.
Mr. Allphin filed a reply brief on August 4, 2022. Mr. Allphin claimed that by
failing to refute his claims of new PRA violations, it was now “an undisputed fact that
the County silently withheld three separate records for 6173 total days.” Id. at 358.
Mr. Allphin alleged the County was seeking to “hide its obvious misconduct behind
procedural arguments.” Id. Mr. Allphin claimed that because our 2016 opinion did not
address his silent withholding claims and remanded the case, he was entitled to bring new
9 No. 39290-2-III Kittitas County v. Sky Allphin
claims for silent withholding. At the end of his analysis, Mr. Allphin argued in the
alternative that the court should at least consider the new evidence of withheld records in
determining a daily penalty for the six e-mails.
A hearing was held the next day, on August 5, 2022. At the hearing, Mr. Allphin
urged the trial court to issue a penalty of up to $617,000 based on the newly discovered
evidence of silent withholding. The trial court declined to issue an award pertaining to
Mr. Allphin’s new allegations, explaining the Court of Appeals had only told it to address
the six e-mails. The court noted that Mr. Allphin could raise his allegations of newly
discovered PRA violations “at some other time.” Rep. of Proc. (Aug. 5, 2022) at 10. In
response to Mr. Allphin’s argument that the court could still consider evidence of any
new violations in issuing a penalty, the court reasoned that there was no evidence of a
“nefarious plan” to avoid compliance with the PRA. Id. at 51. The court determined the
County had shown “a lack of bad motive at least up until—up through the time [the six
e-mails] were produced.” Id. at 62.
The trial court ultimately decided to group the six e-mails together as a single
record for purposes of assessing the 98-day per diem penalty. The court imposed a total
penalty of $490 and awarded $8,750 in attorney fees. The court issued a written decision
explaining its penalty decision under the Yousoufian factors as follows:
10 No. 39290-2-III Kittitas County v. Sky Allphin
a. Kittitas County responded promptly to Mr. Allphin’s public records request within five business days in the manner required by RCW 42.56.520. Kittitas County communicated with Mr. Allphin during the entirely of its 14-month response to Mr. Allphin’s public records request. County employees spent considerably in excess of 350 hours responding to Mr. Allphin’s public records request and produced more than 20,000 pages of records to Mr. Allphin. These efforts show a good faith effort by Kittitas County to respond to Mr. Allphin’s public records request.
b. The PRA violation resulted through inadvertence or mistake. There is no evidence that the PRA violation is attributable to a lack of PRA training. c. There is no evidence that Kittitas County sought to conceal email records or delay the production of records to Mr. Allphin. The County produced the six emails to Mr. Allphin in July 2013, approximately six months before closing the request in January 2014.
d. Aggravating factors of dishonesty, bad faith, and/or intentional noncompliance with the PRA are not present.
e. The requestor did not suffer any actual personal economic loss as a result of the PRA violation.
f. No remedial objective is served by a high penalty award. There is no evidence the County did not take Mr. Allphin’s public records request seriously. Nor is there evidence the County failed to adequately provide resources or staff for its public records request response efforts.
g. In support of his motion for penalties and fees, Mr. Allphin submitted a declaration and a supplemental declaration claiming various PRA violations he alleges the County committed when responding to his public records request. In extensive litigation on the merits of Mr. Allphin’s PRA claims, neither the trial court nor the appellate court found any PRA violations other than the violation
11 No. 39290-2-III Kittitas County v. Sky Allphin
associated with the six wrongfully withheld email records. This Court declines to consider these allegations as meriting a heightened penalty award.
4. Having begun its determination by considering the entire penalty range, from zero to one hundred dollars per day, and pursuant to its analysis of the Yousoufian factors, the Court finds that a per diem penalty in the amount of $5.00 per day is appropriate. The Court finds that the total PRA penalty amount in this case is $490.00 (1 group of emails * 98 days + $5.00 per day = $490.00).
CP at 467-69.
Mr. Allphin now appeals.
ANALYSIS
Legal standards governing the trial court’s penalty determination
A trial court’s PRA penalty determination involves two steps: “(1) determine the
amount of days the party was denied access and (2) determine the appropriate per day
penalty between $5 and $100 depending on the agency’s actions.” Yousoufian v. Office
of Ron Sims, 152 Wn.2d 421, 438, 98 P.3d 463 (2004) (Yousoufian I).
Here, the first step was settled by our 2016 opinion. The six e-mails were
improperly withheld for 98 days. Thus, the only task before the trial court was to
determine the appropriate penalty. This involved an assessment of mitigating and
aggravating factors as set forth in Yousoufian II, 168 Wn.2d at 467-68.
12 No. 39290-2-III Kittitas County v. Sky Allphin
Mitigating factors, which may serve to decrease a penalty, include: (1) a lack of
clarity in the PRA request, (2) the agency’s prompt response or legitimate follow-up
inquiry for clarification, (3) the agency’s good faith, honest, timely, and strict compliance
with all PRA procedural requirements and exceptions, (4) proper training and supervision
of the agency’s personnel, (5) the reasonableness of any explanation for noncompliance
by the agency, (6) the helpfulness of the agency to the requestor, and (7) the existence of
agency systems to track and retrieve public records. Id. at 467.
Aggravating factors, which may support increasing a penalty, include: (1) a
delayed response by the agency, especially in circumstances making time of the essence,
(2) lack of strict compliance by the agency with all the PRA procedural requirements
and exceptions, (3) lack of proper training and supervision of the agency’s personnel,
(4) unreasonableness of any explanation for noncompliance by the agency, (5) negligent,
reckless, wanton, bad faith, or intentional noncompliance with the PRA by the agency,
(6) agency dishonesty, (7) the public importance of the issue to which the request is
related, where the importance was foreseeable to the agency, (8) any actual personal
economic loss to the requestor resulting from the agency’s misconduct, where the loss
was foreseeable to the agency, and (9) a penalty amount necessary to deter future
misconduct by the agency considering the size of the agency and the facts of the case.
Id. at 467-68.
13 No. 39290-2-III Kittitas County v. Sky Allphin
Once a trial court settles on a penalty amount, we will review the court’s decision
for abuse of discretion. Hoffman v. Kittitas County, 194 Wn.2d 217, 224, 228, 449 P.3d
277 (2019).
Mr. Allphin’s arguments against the trial court’s penalty determination
Mr. Allphin proffers four reasons why the trial court abused its discretion in
determining the penalty award. First, he contends the trial court improperly refused to
consider evidence of new PRA violations. Second, he claims the court wrongly shifted
the applicable burden of proof. Third, he argues the court erroneously refused to consider
evidence of the new PRA violations in its penalty determination for the six undisclosed
e-mails. And fourth, he claims the court improperly refused to consider the County’s
excessive litigiousness as evidence of bad faith. We disagree with these arguments and
address each in turn.
New PRA violations
Mr. Allphin argues the trial court erroneously refused to consider new claims of
silent withholding during the remand hearing. While we agree with Mr. Allphin that the
court refused to consider new claims, we disagree that this refusal was erroneous. Our
2016 mandate was limited. The question of liability had been settled. The only issues to
be decided were the amounts of attorney fees, costs, and daily penalties to be awarded
14 No. 39290-2-III Kittitas County v. Sky Allphin
in conjunction with the six withheld e-mails. The trial court’s assessment of the scope
of the hearing was therefore proper.
Contrary to Mr. Allphin’s arguments, a “remand is not an invitation to the parties
to litigate new issues outside the scope” of the appellate court’s ruling. State v. Arlene’s
Flowers, Inc., 193 Wn.2d 469, 500, 441 P.3d 1203 (2019). If Mr. Allphin believed he had
evidence of new PRA violations, he could have initiated a separate PRA action or sought
to amend his pleadings in the existing case to add these claims. But given the posture of
the case, the trial court properly declined Mr. Allphin’s request to impose penalties for
any records other than the six e-mails that formed the basis of the 2016 remand order. 1
Burden of proof
Mr. Allphin next argues that even if the trial court properly limited the scope of
the remand hearing to the six withheld e-mails, the court nevertheless abused its
discretion in awarding only $490 in PRA penalties. According to Mr. Allphin, the trial
court erroneously shifted the burden of proof from the County onto him. We disagree.
Mr. Allphin’s burden shifting arguments fail because they rest on a
mischaracterization of the trial court’s decision. The trial court found the County had
1 Mr. Allphin should have been well aware that this case only pertained to the six e-mails. The Supreme Court Clerk emphasized this point in reducing Mr. Allphin’s 2019 fee request. And our 2022 decision emphasized that Mr. Allphin’s belief that the hearing for penalties on the six withheld e-mails would address other PRA disputes with the County was a “mistake” and “misguided.” Allphin IV, No. 38228-1-III, slip op. at 9-10.
15 No. 39290-2-III Kittitas County v. Sky Allphin
shown “a lack of bad motive at least up until—up through the time [the six e-mails]
were produced.” RP (Aug. 5, 2022) at 62. In support of this finding, the trial court
noted that the allegedly undisclosed records were innocuous and that there was not
“any evidence, with regard to these six records, of dishonesty or bad faith or intentional
non-compliance.” Id. at 60. The court also referenced the extensive efforts the County
took to respond to Mr. Allphin’s PRA request and to promptly correct the alleged errors.
This analysis indicates the trial court held the County to a burden of proving lack of bad
faith.
We note that even if the trial court had assigned the burden of proof to Mr. Allphin
instead of the County, this approach would not have been an abuse of discretion. In a
previous appeal involving Mr. Allphin and the County, this court held that Mr. Allphin
had the burden of proving silent withholding. See Kittitas County v. Allphin,
No. 34760-5-III, slip op. at 26 (Wash. Ct. App. Mar. 13, 2018) (unpublished portion)
(Allphin II) (quoting In re Est. of McKachney, 143 Wash. 28, 30, 254 P. 455 (1927)),
https://www.courts.wa.gov/opinions/pdf/347605_pub.pdf. Because Mr. Allphin’s claim
of bad faith was based on allegations of silent withholding, the trial court could have
acted within its discretion by holding Mr. Allphin to the burden of proof on this issue.
16 No. 39290-2-III Kittitas County v. Sky Allphin
Failure to consider evidence
Mr. Allphin argues that even if the trial court properly refused to impose penalties
for new PRA violations, the court should have considered evidence of the violations as
an aggravating factor relevant to the penalty for the six undisclosed e-mails. We agree
with Mr. Allphin that allegations of additional violations are relevant to a trial court’s
PRA penalty determination and therefore should be considered. But here, Mr. Allphin’s
arguments fail because the record shows the trial court did consider the evidence of new
violations.
The court’s written ruling stated it “decline[d] to consider [the new] allegations as
meriting a heightened penalty award.” CP at 469 (emphasis added). This language does
not indicate the court refused to consider the new allegations. Rather, the court merely
deemed the new allegations meritless. The court did not strike Mr. Allphin’s evidence or
cut off his arguments. The court simply found Mr. Allphin’s allegations of a “massive
scheme” to violate the PRA unconvincing. RP (Aug. 5, 2022) at 56.
Although the trial court did not refuse to consider the evidence of new PRA
violations, it arguably had discretion to do so in this case. Mr. Allphin waited until his
reply brief to argue that his new PRA claims were relevant to determining a penalty for
the six withheld e-mails. The reply brief was not filed until the day before the remand
hearing, thus depriving the County of any opportunity for a written response. Given the
17 No. 39290-2-III Kittitas County v. Sky Allphin
posture of the case, the trial court likely could have declined to consider arguments raised
by Mr. Allphin for the first time in his reply brief. See Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Excessive litigiousness
Mr. Allphin’s final claim is that the trial court abused its discretion by failing to
consider the County’s excessive litigiousness as evidence of bad faith in awarding
penalties. We are unpersuaded. While excessive litigiousness might qualify as an
aggravating factor in some cases, here it does not.
The County’s original complaint for declaratory relief was largely successful.
In our 2016 decision, we mostly upheld the County’s handling of Mr. Allphin’s PRA
request. While the County did not prevail on the issue of the six withheld e-mails,
its arguments were not frivolous. The County made the plausible argument that a
withholding penalty was unwarranted pursuant to this court’s decision in Hobbs v.
Washington State Auditor’s Office, 183 Wn. App. 925, 335 P.3d 1004 (2014). This was
fair, even if the County did not ultimately prevail. Furthermore, the County’s position did
not prolong the parties’ litigation. As noted by the Supreme Court Clerk, the issue of the
six undisclosed e-mails constituted only approximately 5 percent of the underlying
litigation. The remaining 95 percent of the litigation was devoted to Mr. Allphin’s
unsuccessful PRA arguments.
18 No. 39290-2-III Kittitas County v. Sky Allphin
Nothing about the County’s actions during the initial remand proceedings were
improper or excessive. After two years passed without Mr. Allphin seeking an order of
penalties pursuant to our remand order, the County scheduled the matter for a hearing and
provided notice to Mr. Allphin. Although the County initially argued that Mr. Allphin
should be deemed to have waived his right to penalties for the six withheld e-mails, at
the hearing the County changed course and advised the court that it could either find
waiver or grant penalties. It was the trial court’s ultimate decision to find waiver, not
the County’s. While the County’s effort to defend the trial court on appeal did not
prevail, its position was not frivolous. Furthermore, the County’s decision to defend the
trial court’s order was not the true cause of the delay. Mr. Allphin could have received his
penalty award back in 2019 had he not engaged in a misguided effort to resolve
extraneous PRA claims prior to noting his case for hearing.
Nor did the County engage in improper conduct during the most recent remand.
The County did not act in bad faith by noting a motion for hearing 90 days after issuance
of our decision. Although the 90-day hearing deadline might properly be understood
as starting with the date of the mandate, our written decision did not make this clear.
Arguably, the motion for fees and penalties needed to be filed within 90 days of our
decision. By filing its motion for determination of fees and penalties 90 days after
issuance of our opinion, the County appears to have been operating in a good faith effort
19 No. 39290-2-III Kittitas County v. Sky Allphin
to save Mr. Allphin from another allegation of waiver. This was not bad faith. Nor did the
County’s strategy impair Mr. Allphin’s ability to present his case.
CONCLUSION
The trial court did not abuse its discretion in assessing penalties and fees related
to the County’s 98-day failure to disclose six e-mails. The order on appeal is therefore
affirmed. Mr. Allphin’s request for attorney fees on appeal is denied.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
WE CONCUR:
Staab, A.C.J. Cooney, J.