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Cost Mgmt. Servs., Inc. v. City of Lakewood

Supreme Court of Washington, En Banc

October 10, 2013

Cost Management Services, Inc., Respondent,
v.
The City of Lakewood et al., Petitioners

Argued May 16, 2013.

Page 805

Heidi A. Wachter, City Attorney, and Matthew S. Kaser, Assistant, for petitioners.

Franklin G. Dinces (of The Dinces Law Firm ) and Geoffrey P. Knudsen, for respondent.

Mark D. Orthmann on behalf of Washington State Association of Municipal Attorneys, amicus curiae.

AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzalez.

OPINION

Page 806

Gordon McCloud, J.

[178 Wn.2d 638] ¶ 1 For many years, Cost Management Services Inc. (CMS) made a certain tax payment to the city of Lakewood. In late 2008, upon examining the relevant regulations, CMS decided tat it did not in fact owe the tax that it had been paying. In November 2008, it stopped paying the tax and it submitted a claim to Lakewood for a refund of taxes it had previously paid from 2004 to September 2008.

¶ 2 Lakewood did not respond to the request for a refund of the 2004-2008 tax payments. But six months later, in May 2009, it issued a notice and order to CMS demanding payment of past due taxes for a different time period--October 2008 to May 2009. CMS did not respond to the notice and order from Lakewood.

¶ 3 Instead, CMS sued Lakewood in superior court on its refund claim, asserting a state common law claim of money had and received. The trial court held a bench trial on that state law claim. The trial court found in favor of CMS, ruling that CMS did

Page 807

not owe the taxes it had paid to Lakewood. In addition, in a separate action, the trial court granted CMS's petition for a writ of mandamus ordering Lakewood to respond to the refund claim.

¶ 4 The Court of Appeals affirmed in a partially published opinion. Cost Mgmt. Servs., Inc. v. City of Lakewood, 170 Wn.App. 260, 284 P.3d 785 (2012). It first addressed Lakewood's argument that the trial court should have dismissed CMS's claim because CMS failed to exhaust its administrative remedies. The Court of Appeals reasoned that since Lakewood had never actually responded to the refund claim, CMS had no further administrative steps available to it on the refund claim, and thus exhaustion was not required. The appellate court also ruled that the trial court had properly issued the writ of mandamus. Lakewood sought review of the Court of Appeals' decisions on the exhaustion and the mandamus issues, and we accepted review. Cost Mgmt. Servs., Inc. v. City of Lakewood, 176 Wn.2d 1011, 297 P.3d 706 (2013). We affirm the Court of [178 Wn.2d 639] Appeals as to the exhaustion issue, but we reverse the Court of Appeals as to the mandamus issue.

FACTS

¶ 5 CMS is an energy consulting firm that arranges the purchase and delivery of natural gas for its customers from its offices on Mercer Island. Some of its customers are in Lakewood. Between 2004 and 2008, CMS paid a tax to Lakewood that CMS labeled, in its tax returns, an " occupation" tax. Report of Proceedings (RP) 12/13/10 (a.m.) at 98-99. CMS paid the tax through September 2008. During that month, though, CMS discovered that Lakewood did not charge any occupation tax. CMS had instead been paying an amount that apparently corresponded to Lakewood's " utility" tax. RP 12/14/10 (a.m.) at 281-82. Liability for that utility tax depended on CMS having a business license in, and doing business in, Lakewood. CMS believed that it was not a business in, and did not do business in, Lakewood. It therefore stopped paying the tax and wrote to Lakewood in November 2008 requesting a refund for taxes mistakenly paid between January 2004 and September 2008.

¶ 6 Lakewood did not respond to CMS's request. Instead, in May 2009, over six months after CMS's refund request, Lakewood sent CMS a " NOTICE AND ORDER/DEMAND FOR TAX PAYMENT." Def.'s Ex. 3. That notice and order asserted that CMS did business in Lakewood and therefore owed taxes from the time it had stopped paying in October 2008. It demanded payment of taxes " from October of 2008 to the present" and also ordered CMS to apply for and obtain a business license from Lakewood. Id.

¶ 7 In June 2009, CMS filed suit in Pierce County Superior Court alleging that Lakewood owed it a refund and had failed to respond to its refund claim. Lakewood sought summary judgment, claiming that CMS had failed to exhaust its administrative remedies. The trial court disagreed, eventually held a bench trial, and found that Lakewood owed CMS approximately $ 600,000.

[178 Wn.2d 640] ¶ 8 CMS had initiated its suit on June 24, 2009. It asserted that Lakewood owed it a refund for taxes paid from January 2004 to September 2008. During the litigation, the trial court ruled that CMS's claim for a refund of taxes before June 24, 2006, was barred by the three year statute of limitations. Thus, even if CMS won at trial, its recovery would be limited to the period of June 24, 2006 to October 1, 2008. In an attempt to recover taxes it had paid before June 2006, CMS filed another, separate action in the Pierce County Superior Court seeking a writ of mandamus to compel Lakewood to respond to CMS's November 2008 refund request. The trial court consolidated that case with the first case CMS had filed and granted the writ. The bench trial concluded with a judgment in favor of CMS. [1]

Page 808

Lakewood appealed that judgment and the order granting CMS's petition for a writ of mandamus. The Court of Appeals affirmed. Cost Mgmt. Servs., 170 Wn.App. 260. Lakewood sought review in this court of two specific issues: first, whether the Court of Appeals erred in concluding that exhaustion of administrative remedies was not required; and second, whether the Court of Appeals erred in affirming the order granting the petition for a writ of mandamus.

[178 Wn.2d 641] ANALYSIS

1. Whether CMS Was Required To Exhaust Administrative ...


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