IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MINNIE THOMAS and LAWRENCE ) No. 82041-9-I (Consolidated WILLIAMS, ) with No. 82740-5-I) ) Appellants, ) DIVISION ONE ) v. ) ORDER WITHDRAWING ) OPINION AND KING COUNTY DEPARTMENT OF ) SUBSTITUTING OPINION COMMUNITY AND HEALTH ) SERVICES; NORTHWEST HOSPITAL, ) ) Respondents. ) )
The opinion for this case was filed on June 13, 2022. A majority of the panel
request that the opinion filed on June 13, 2022 be withdrawn and a substitute
unpublished opinion be filed. Now therefore, it is hereby
ORDERED that the opinion filed on June 13, 2022 is withdrawn and a
substitute unpublished opinion shall be filed.
FOR THE COURT:
Judge IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MINNIE THOMAS and LAWRENCE ) No. 82041-9-I (Consolidated WILLIAMS, ) with No. 82740-5-I) ) Appellants, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) KING COUNTY DEPARTMENT OF ) COMMUNITY AND HEALTH ) SERVICES; NORTHWEST ) HOSPITAL, ) ) Respondents. ) )
HAZELRIGG, J. — Minnie Thomas and Lawrence Williams appeal pro se the
dismissal of their claims against King County Community and Health Services
(KCCHS) and Northwest Hospital (NWH). They assign error to several rulings
made in connection to their motion for a default judgment and for a continuance,
and challenge the ultimate dismissal of their claims under CR 12(b)(6). NWH
urges this court to reject the appeal based on failure to comply with the Rules of
Appellate Procedure. We decline to do so and instead analyze the merits of the
trial court’s various rulings so that Thomas and Williams may better understand
the procedural aspects of the proceedings and the legal reasoning for the outcome
in the superior court. Because the trial court did not abuse its discretion, and
Thomas and Williams failed to allege any set of facts upon which relief could be
granted, we affirm.
Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 82041-9-I/2
FACTS
In November 2016, Minnie Thomas was involuntarily committed to
Northwest Hospital (NWH) pursuant to the involuntary treatment act1 (ITA) after a
“Designated Mental Health Professional”2 (DMHP) employed by King County filed
a petition in King County Superior Court requesting her commitment. The petition
was granted and Thomas’s detention was authorized by court order. Three years
later, in November 2019, Thomas and her son Lawrence Williams filed a pro se
complaint against King County Community and Health Services (KCCHS) and
NWH. While the handwritten pleadings are difficult to decipher, Thomas and
Williams (collectively, Thomas) seem to have brought claims for slander and libel,
for conspiracy, for unlawful commitment, and violation of civil rights. Rather than
filing answers to the complaint, KCCHS and NWH each filed motions to dismiss
and accompanying motions to seal. Thomas later moved for a default judgment
against both KCCHS and NWH, alleging each had failed to respond within 20 days
after being served the summons and complaint as required by CR 12. The court
granted the motions to dismiss and denied Thomas’s motion for a default
judgment. Thomas timely appeals.
ANALYSIS
While Thomas alleges bias and misapplication of court rules permeated the
proceedings in superior court, the record and arguments on appeal demonstrate
1 Ch. 71.05 RCW 2 “Designated Mental Health Professionals” are now referred to as “Designated Crisis Responders” (DCRs) in the amended version of the ITA. This opinion utilizes the title in effect at the time of the events at issue.
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that this perspective is likely based on a fundamental misunderstanding of both the
procedural rules at issue in this litigation and the outcomes of the hearing
conducted in the trial court. While we always endeavor to clearly set out the
controlling authority and reasoning for our decisions, we take particular care with
this case in the hopes that Thomas, and other pro se litigants, may fully understand
the import and impact of compliance with relevant court rules.
I. Dismissal for Noncompliance with Rules of Appellate Procedure
As a preliminary matter, NWH asks this court to dismiss Thomas’s appeal
under RAP 10.3 and 10.4. It argues Thomas failed to provide citations to legal
authority and references to the record as required in RAP 10.3 and to provide
references to the record with page designations for factual statements as required
by RAP 10.4. NWH is correct that we “hold pro se litigants to the same standards
as attorneys.” Winter v. Dep’t of Soc. and Health Servs. on Behalf of Winter, 12
Wn. App. 2d 815, 844, 460 P.3d 667 (2020). However, we liberally interpret our
Rules of Appellate Procedure “to promote justice and facilitate the decision of
cases on the merits.” RAP 1.2. Thomas’s brief does contain some citations to the
record and to legal authority, and we are able to glean the substance of her
challenges from briefing. Based on this, and our liberal interpretation of the Rules
of Appellate Procedure, we decline to dismiss Thomas’s case on procedural
grounds and instead reach the merits of her appeal.
II. Denial of Motion for Default Judgment
Thomas first assigns error to several trial court decisions made in
connection with her motion for a default judgment. First, she contends the court
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failed to rule on the motion in a timely manner. Second, she alleges the trial court
erred in finding NWH’s declaration of service credible over her declaration in
response. Finally, she argues the trial court erred by dismissing her motion for a
default judgment because NWH and KCCHS did not respond to her complaint
within 20 days.
We review a trial court’s decision denying a motion for default judgment for
an abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956, (2007).
A court abuses its discretion if its decision is based “on untenable grounds or for
untenable reasons.” Id. Under Washington civil rules, a party may move for a
default judgment when the defending party “has failed to appear, plead, or
otherwise defend.” CR 55(a)(1). However, we have “long favored resolution of
cases on their merits over default judgments.” Morin, 160 Wn.2d at 749. Because
of this policy, this court is less likely to find an abuse of discretion when a trial court
declines to award a default judgment. See Colacurcio v. Burger, 110 Wn. App.
488, 494–95, 41 P.3d 506 (2002). We also “construe[] the concept of appearance
broadly” in the context of a default judgment. Old Republic Nat. Title Ins. Co. v.
Law Office of Robert E. Brandt, PLLC, 142 Wn. App. 71, 74–75, 174 P.3d 133
(2007). “We have not exalted form over substance but have examined the
defendants’ conduct to see if it was designed to and, in fact, did apprise the
plaintiffs of the defendants’ intent to litigate the cases.” Morin, 160 Wn.2d at 753.
Thomas asserts the court erred by delaying ruling on her motion for default
judgment. She filed her motion on May 13, 2020, and NWH filed a response in
opposition on June 4. The court heard oral argument on several motions of the
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parties, including the motion for default, on June 19, 2020. While the court did not
enter a written ruling denying the motion until September 1, it orally denied the
motion at the conclusion of the hearing on June 19. The record is clear that the
court issued a contemporaneous oral ruling, but delayed entering the written order
because Thomas alleged she had not received NWH’s motion to dismiss. The
court ordered NWH to send its pleadings to Thomas and gave Thomas additional
time to respond to them before issuing a written order encompassing the various
motions. Without more, we cannot say the court abused its discretion.
Next, Thomas assigns error to the trial court’s decision to “accept” NWH’s
declaration of service as evidence Thomas was served over her declaration that
she was not properly served. However, “credibility determinations are solely for
the trier of fact” and “cannot be reviewed on appeal.” Morse v. Antonellis, 149
Wn.2d 572, 574, 70 P.3d 125 (2003). The superior court judge, acting as trier of
fact, was entitled to make its own credibility determinations when presented with
two conflicting declarations, and we do not review that determination.
Finally, Thomas alleges the trial court erred in denying her motion for default
because both defendants failed to file an answer within 20 days. Generally, a
defendant must serve an answer within 20 days after being served the summons
and complaint. CR 12(a)(1). However, a party may file a motion to dismiss prior
to submitting an answer. CR 12(b)(6). If this motion is made, a defendant need
not file an answer “until 10 days after notice that the court has ‘denie(d) the motion
or postpone(d) its disposition until the trial on the merits.” Campbell v. Scannell,
32 Wn. App. 346, 348, 647 P.2d 529 (1982) (quoting CR 12(a)(4)(A)).
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In Campbell, the court found the trial court abused its discretion in granting
a motion for default. Id. The defendant Ross “appeared but failed to answer”
within 20 days after service of the summons and complaint. Id. However, “he did
respond or otherwise defend under CR 55(a) when he moved to dismiss the third
party complaint before the default motion was heard,” and therefore “he was not
required to answer unless his motion to dismiss was denied or postponed” under
CR 12(a)(4)(A). Id.
In the case before us, Thomas served NWH and KCCHS on February 6,
2020.3 NWH filed its notice of appearance on February 18, and KCCHS filed its
notice of appearance on February 26. Both NWH and KCCHS filed motions to
dismiss under CR 12(b)(6), along with motions to seal as both motions to dismiss
referred to proceedings involving Thomas under the ITA which necessarily
included her protected health information. NWH filed its motion on May 11, 2020
and KCCHS filed its motion on April 28, 2020. Thomas filed her motion for a default
judgment against both defendants on May 13, 2020. The court granted NWH’s
and KCCHS’s motions to seal on May 22, 2020, but did not hear oral argument on
either motion to dismiss until June 19, 2020.
Like the defendant Ross in Campbell, NWH and KCCHS failed to formally
answer within 20 days after being served the summons and complaint, though both
filed notices of appearance. They did, however, defend against Thomas’s claims
by filing motions to dismiss and seal prior to her motion for a default judgment.
3 There is nothing in the record before us to confirm that NWH and KCCHS were served
on February 6, 2020, however the parties seem to agree service was both proper and accomplished on this date.
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Again, Washington courts have “long favored resolution of cases on their merits
over default judgment,” and will examine the proceedings to determine if the
defendants’ conduct “was designed to, and, in fact, did apprise the plaintiffs of the
defendants’ intent to litigate the case[].” Morin, 160 Wn.2d at 749, 755. The
actions by KCCHS and NWH were designed to, and did, apprise Thomas of the
entities’ intent to litigate the case. Because of this, and our policy favoring
decisions on the merits, the trial court did not abuse its discretion in denying
Thomas’s motion for a default judgment.
Thomas refers to the motion to dismiss as an “illegit[imate] pre-answer
without a legal defense,” but the motions to dismiss filed by NWH and KCCHS are
expressly authorized by our civil rules and are a proper form of legal defense
against her claims. While she discusses both CR 4 and CR 12 generally in her
argument that the court erred by “accepting” the motions to dismiss, Thomas does
not engage with the plain language of CR 12(b)(6) which states that “the following
defenses may at the option of the pleader be made by motion . . . (6) failure to
state a claim upon which relief can be granted.” (Emphasis added.) NWH and
KCCHS exercised the option available under CR 12(b)(6) to respond to Thomas’s
complaint with motions to dismiss. Thomas relies on CR 12(a)(1) in support of her
argument that NWH and KCCHS were in default, but she fails to acknowledge CR
12(a)(4), which expressly indicates that “[t]he service of a motion permitted under
this rule [i.e. motion to dismiss under CR 12(b)(6)] alters these periods of time as
follows, unless a different time is fixed by order of the court.” (Emphasis added.)
The filing of the motions to dismiss altered the time to answer, pursuant to the plain
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language of the court rule. There was nothing untoward or unfair about the trial
court proceedings with regard to the denial of Thomas’s motions for default.
III. Denial of Thomas’s Request for Continuance
Thomas next argues the trial court erred by failing to grant an adequate
continuance. A ruling on a motion for a continuance “is within the discretion of the
trial court and is reversible by an appellate court only for a manifest abuse of
discretion.” Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). On
September 9, 2020, Thomas filed a motion for a continuance of the hearing on
NWH’s motion to dismiss primarily based on her assertion that she needed
“additional time to obtain crucial evidence to support my valid claims.” She
specifically requested the court set the next hearing on October 23, 2020. The
court denied Thomas’s motion to continue the hearing to October 23, but granted
a limited continuance to October 2, 2020.
However, when considering a motion to dismiss, the trial court generally
examines only the allegations in the complaint and decides the motion on “the face
of the pleadings.” Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844,
347 P.3d 487 (2015).4 While ruling on a motion to dismiss, the court presumes all
facts in the complaint to be true and gives the plaintiff “the benefit of any
hypothetical set of facts consistent with the complaint.” Konicke v. Evergreen
Emergency Servs., P.S., 16 Wn. App. 2d 131, 137, 480 P.3d 424 (2021). A court
4 In addition to the motions to dismiss, the trial court considered documentation from the
underlying ITA petition and order submitted by NWH and KCCHS under seal. This was proper and does not change our analysis of the court’s decision to grant only a limited continuance. See Jackson, 186 Wn. App. at 844.
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may only dismiss the complaint if “‘it appears beyond a doubt that the plaintiff
cannot prove any set of facts which would justify recovery.’” Burton v. City of
Spokane, 16 Wn. App. 2d 769, 772, 482 P.3d 968 (2021) (internal quotation marks
omitted) (quoting Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 345, 449 P.3d
1040 (2019)). Because of this, there was no need for Thomas to gather additional
evidence—all facts in her complaint were presumed to be true, and she was
entitled to the benefit of hypothetical facts consistent with her complaint.
While Thomas emphasized that she needed more time to gather evidence,
she also indicated that she needed additional time “for ‘medical reasons’ and for
the COVID[-]19 crisis that is causing more hardships.” The record does not reflect
that Thomas ever provided more information about the medical reasons underlying
her motion to continue the case, or explained how the COVID-19 pandemic was
impacting her ability to proceed with the litigation.5 Most critically, however, the
fact that her primary reason for seeking the continuance was to obtain additional
evidence demonstrates that she misunderstood the nature of the legal challenges
to her various causes of action. Her suit against NWH and KCCHS was not
dismissed because she failed to support her claims with sufficient evidence, but
rather because her claims were legally deficient; there were defects in her lawsuit
that could not be fixed with evidence. Even if the court had granted her a lengthy
continuance and she produced the evidence she sought to obtain, those legal
5 This court is well aware of the myriad ways that the COVID-19 pandemic disrupted our
state’s legal system. However, in order for a court to consider the relevant factors for a motion to continue, such as “the needs of the moving party,” it must be provided with the pertinent information. See Balandzich v. Demeroto, 10 Wn. App. 718, 720, 519 P.2d 994 (1974).
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defects in her claims would have remained. Accordingly, the court did not abuse
its discretion in granting only a limited continuance.
IV. Dismissal of Claims under CR 12(b)(6)
NWH and KCCHS both correctly note that Thomas does not assign error in
her opening brief to the trial court’s decision granting both motions to dismiss on
the merits. However, Thomas’s June 10, 2021 notice of appeal in this consolidated
case clearly requests review of the court’s order granting the dismissal and her
briefing establishes that she believed the dismissal was improper. In the spirit of
liberal construction of our rules “to promote justice and facilitate the decision of
cases on the merits” as articulated in RAP 1.2, we provide brief analysis of the
dismissal to assist Thomas in understanding the overall procedures and applicable
legal standards.
We review a dismissal under CR 12(b)(6) de novo. Larson v. Snohomish
County, 20 Wn. App. 2d 243, 263, 499 P.3d 957 (2021). “A dismissal at this stage
of the proceedings will be affirmed if it appears beyond any doubt that the plaintiff
can prove no set of facts consistent with the complaint that would entitle [them] to
relief.” Id.
A. Northwest Hospital
Thomas contends the trial court erred in dismissing three of her claims
against NWH: libel and slander, violation of Thomas’s civil rights, and for civil
damages under the ITA.
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First, NWH argues dismissal of Thomas’s libel and slander claims was
proper because the statute of limitations had expired. “When the underlying facts
are undisputed, we review de novo whether the statute of limitations bars an
action.” Copper Creek (Marysville) Homeowner’s Ass’n v. Kurtz, ___ Wn. App. 2d
___, 508 P.3d 179, 185 (2022). Under RCW 4.16.100, claims for libel or slander
must be brought within two years. Emeson v. Dep’t of Corr., 194 Wn. App. 617,
639, 376 P.3d 430 (2016). “The limitation period begins to run when the plaintiff’s
cause of action accrues,” usually “when the plaintiff suffers some form of injury or
damage.” Crisman v. Crisman, 85 Wn. App. 15, 20, 931 P.2d 163 (1997). Under
the “discovery rule,” a plaintiff’s “cause of action accrues when the plaintiff knows
or should know the relevant facts” giving rise to the cause of action. Allen v. State,
118 Wn.2d 753, 758, 826 P.2d 200 (1992).
Thomas alleges the acts giving rise to her libel and slander claims occurred
when a DMHP “submitted a ‘false report’” in connection with a petition to detain
her under the ITA. While she does not provide a date for this act, she alleges her
commitment took place between November 8, 2016 and November 16, 2016.
NWH’s motion to dismiss reflects that the petition requesting Thomas’s involuntary
commitment was filed on November 7, 2016. Thomas was served with a copy of
the petition, the order to detain, and notice of her rights on November 8, 2016.
Because she alleges libel and slander based on the statements in the petition, she
knew or should have known the relevant facts giving rise to the cause of action on
the date she received the petition. Based on this, the statute of limitations expired
on November 8, 2018. Thomas filed her complaint on November 7, 2019, nearly
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a year too late. The trial court properly dismissed Thomas’s libel and slander
claims.
Next, NWH contends dismissal of Thomas’s civil rights claim was proper
because she could not state a claim as a matter of law. NWH correctly notes that
Thomas did not cite specific legal authority, only alleging a “violation of civil rights.”
The parties appear to have assumed that this was most likely a claim under 42
U.S.C. § 1983. “To prevail on a § 1983 claim, a party ‘must establish that they
were deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.’”
Freedom Found. v. Teamsters Local 117 Segregated Fund, 197 Wn. 2d 116, 145,
480 P.3d 1119 (2021) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49–50, 119 S. Ct. 977, 143 L. Ed. 2d. 130 (1999)). No matter how discriminatory
an action by a private entity might be, a plaintiff may only seek relief under § 1983
against an entity acting under color of state law. Id. A private entity may act under
color of state law “when it performs a function the government has ‘traditionally
and exclusively performed,’” but this is exceedingly rare. Id. (quoting Manhattan
Cmty. Access Corp. v. Halleck, ___ U.S. ___, 139 S. Ct. 1921, 1929, 204 L. Ed.
2d 405 (2019)).
A private entity may also act under color of state law “if [it] willfully
participates in joint action with the state or its agents.” Cummings v. Guardianship
Servs. of Seattle, 128 Wn. App. 742, 758, 110 P.3d 796 (2005) as amended on
denial of reconsideration (Sept. 13, 2005). However, there must be more than
“‘[a]ction taken . . . with the mere approval or acquiescence of the State.’” Id. at
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759 (quoting Am. Mfrs., 526 U.S. at 52). In Cummings, for example, the court
found that a guardian acting “under court supervision or pursuant to a court order”
was not acting under color of state law for purposes of a § 1983 claim. Id. at 760.
Likewise, Thomas does not allege that NWH is a state entity. Merely acting
pursuant to a court order which required NWH to hold Thomas for evaluation
and/or treatment is not sufficient to find NWH was acting under color of state law.
Thomas has not alleged any set of facts which would entitle her to relief under 42
U.S.C. § 1983 and her claim was properly dismissed.
Finally, Thomas seems to allege she was improperly detained and therefore
entitled to relief under the ITA. RCW 71.05.510 provides civil liability for “[a]ny
individual who knowingly, willfully, or through gross negligence violates the
provisions of this chapter by detaining a person for more than the allowable
number of days.” However, the ITA also provides immunity for evaluation and
treatment facilities so long as those “duties were performed in good faith and
without gross negligence.” RCW 71.05.120(1). “Gross negligence is ‘substantially
and appreciably greater than ordinary negligence.’” Dalen v. St. John Med. Ctr., 8
Wn. App. 2d 49, 61, 436 P.3d 877 (2019) (quoting Estate of Davis v. Dep’t of Corr.,
127 Wn. App. 833, 840, 113 P.3d 487 (2005)). Thomas does not allege gross
negligence or bad faith by NWH. Further, it was the court who controlled the
duration of Thomas’ commitment pursuant to the ITA, not NWH. Without more,
the dismissal of her claim was proper because she does not allege any set of facts
entitling her to relief.
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As previously explained, the reason Thomas’s suit against NWH was
dismissed is not because she failed to provide sufficient evidence, but rather that
her claims contained procedural defects. One was no longer available to her
because the statute of limitations had passed. Another failed because NWH is a
private entity which was not acting under color of state law. The final claim did not
address the proper standard under the statute. These legal defects were fatal to
the case and were specifically raised in the motion to dismiss and at the hearing
on the motion, which Thomas attended.6 Based on the above, the trial court did
not err in dismissing Thomas’s suit against NWH.
B. King County Community Health Services
Thomas argues the trial court also erred in dismissing three of her claims
against KCCHS: for libel and slander, a civil rights violation, and civil liability under
the ITA.
Again, RCW 4.16.100 requires that claims for libel or slander be brought
within two years. Emeson, 194 Wn. App. at 639. Thomas alleges the acts
underlying her libel and slander claims, the purportedly false statements made in
a petition for detention, took place between November 6, 2016, and November 16,
2016. Thomas was served with a copy of the petition, the order to detain, and
notice of her rights on November 8, 2016. Therefore, Thomas knew or should
have known the facts supporting her cause of action on November 8. Thomas’s
6 Thomas did not provide the report of proceedings to this court as a part of the record on
appeal. However, the clerk’s minutes for the hearing on the motions for default and to dismiss indicate that Thomas appeared via telephone and presented argument to the court.
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November 7, 2019 complaint was almost one year too late and the claim was
properly dismissed.
Next, assuming Thomas’s civil rights claim seeks relief under 42 U.S.C. §
1983, “[a] governmental entity is subject to section 1983 liability only when ‘the
action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated
by that body’s officers.’” Spencer v. King County, 39 Wn. App. 201, 212–13, 692
P.2d 874 (1984), overruled on other grounds by Frost v. City of Walla Walla, 106
Wn.2d 669, 724 P.2d 1017 (1986) (quoting Owen v. City of Independence, Mo.,
445 U.S. 622, 655 n.39, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980)). Thomas’s
claim focuses on the petition filed by a DMHP, with no reference to any policy,
regulation, or official decision by KCCHS as a body. Without more, she fails to
allege any set of facts which would entitle her to relief against KCCHS under 42
U.S.C. § 1983. This claim was properly dismissed with prejudice.
Finally, KCCHS contends all of Thomas’s claims, including her claim for civil
damages under RCW 71.05.510, were properly dismissed because KCCHS
cannot be sued—only King County itself may be sued. Our courts have held that
“in a legal action involving a county, the county itself is the only legal entity capable
of suing and being sued.” Nolan v. Snohomish County, 59 Wn. App. 876, 883, 802
P.2d 792 (1990). Because KCCHS is not a legal entity capable of being sued,
Thomas’s claims against it were properly dismissed.
As with the claims against NWH, the reason Thomas’s lawsuit against
KCCHS was dismissed is because her claims failed as a matter of law. The first
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suffered from the same statute of limitations barrier as the corresponding claim
against NWH. The next failed because Thomas did not assert any policy,
regulation or official decision sufficient to support a claim. Most critically, KCCHS
was not a proper party to the lawsuit as only the county itself could be sued. Again,
these legal deficiencies were expressly set out in the motion to dismiss and argued
at the telephonic hearing on the parties’ motions. Thomas was present for that
hearing and was given an opportunity to not only argue her motion for default, but
to respond to KCCHS’s arguments for dismissal. Based on the above, the trial
court properly dismissed Thomas’s claims against KCCHS with prejudice.
V. Procedural Motions on Appeal
On April 4, 2022, Thomas moved for sanctions against KCCHS and NWH
in this court, alleging they were only permitted to file one brief because the appeal
was consolidated. As our Commissioner noted in denying that motion on April 18,
2022, RAP 10.1(g) allows parties in a consolidated appeal to file a single brief or
file a separate brief. Thomas’s motion for sanctions on that basis was properly
denied.
On May 18, 2022, Thomas moved for reconsideration of the ruling, arguing
that the Commissioner’s January 20, 2022 order granting consolidation of
Thomas’s two pending appeals instructed KCCHS and NWH to file a single
response brief, despite RAP 10.1(g), and therefore sanctions were appropriate.
Thomas correctly observes that our Commissioner’s January 20, 2022 ruling could
be interpreted as instructing KCCHS and NWH to file a single response brief.
However, that would contradict RAP 10.1(g), which expressly allows respondents
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in a consolidated appeal to file a single brief, or separate briefs, as the
Commissioner properly noted in the April 18, 2022 ruling denying sanctions.
KCCHS and NWH were entitled to file separate briefs if they so chose, and the
respondents correctly followed RAP 10.1(g). On that basis, the Commissioner
properly denied Thomas’s motion for sanctions.
Thomas also contends she should be permitted an opportunity to file a
single reply brief to a single, consolidated response brief by KCCHS and NWH.
She insists she cannot submit her brief in reply until KCCHS and NWH are ordered
to file a single brief. This is inaccurate. On March 25, 2022, Thomas sought an
extension of time to file her reply, referencing her demand for a single response
brief. However, her request for extension was also based on a reasonable desire
to know the rulings on her various other pending motions before this court. The
Commissioner granted Thomas’s request for additional time to file on the latter
basis, without reaching her claim regarding a single response brief, and noted a
filing deadline of May 16, 2022.
Instead of filing her reply by the date set by this court, Thomas filed a
pleading on May 16, 2022 advising the court that she could not comply with the
court’s briefing schedule as to her reply because she had not received a single
response brief. However, Thomas received two responses, one from each
respondent as permitted under RAP 10.1(g), setting out the arguments of the
parties in detail. She had the requisite information to submit a reply to this panel
and had received additional time to do so. Despite the inartful reference to a single
response brief in the January 20, 2022 ruling, this court did not restrict KCCHS
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and NWH to filing one joint response, as evidenced by the plain language of the
April 18, 2022 order. The April 18, 2022 order states, in relevant part: “RAP 10.1(g)
allows a party to a consolidated case to join, in whole or in part, with a brief filed
by another party on the same side or to file its own brief.” (Emphasis added.) This
was the sole basis for the denial of Thomas’s motion for sanctions, which was
issued by the same Commissioner who made the January 20, 2022 ruling.
Thomas misconstrues these rulings to her detriment. Finally, Thomas alleged she
was prejudiced by only being permitted to file a single reply brief when KCCHS
and NWH were permitted to each file a response brief. Nothing in our procedural
rules entitles Thomas to two reply briefs or an over-length reply brief even if the
respondents exercised their choice under the RAP to file separately.
Having carefully reviewed the various assignments of error and claims
raised by Thomas on appeal, and endeavored to explain the applicable rules and
legal standards so that Thomas may better understand the procedural history of
her litigation, we conclude that the trial court did not err. We affirm the trial court’s
denial of Thomas’s motion for a default judgment, partial grant of her motion for
continuance, and dismissal of her claims against both NWH and KCCHS.7
WE CONCUR:
7 In her addendum to her opening brief, Thomas assigns error to the trial court’s denial of
her motion for perjury. We generally only review a claimed error if the party makes an assignment of error in its opening brief. Because this assignment of error appears only in an exhibit attached to her addendum to her opening brief, we decline to reach it.
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