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Gutierrez v. Icicle Seafoods, Inc.

Court of Appeals of Washington, Division 1

April 3, 2017

ICICLE SEAFOODS, INC., an Alaska corporation, Appellant.

          Leach, J.

         The trial court granted Carlos Gutierrez's request to dismiss his lawsuit against Icicle Seafoods Inc. without prejudice. Icicle appeals this decision, claiming that Gutierrez lost the right to request this relief by filing a response to Icicle's summary judgment motion. Because Gutierrez made his request before the scheduled hearing on Icicle's motion had started, the summary judgment motion had not been submitted to the trial court for decision. Thus, we affirm the trial court.


         Gutierrez developed a sore throat while working as a processor on one of Icicle's commercial fishing vessels, the PA/ R.M. Thorstensen. Over the next few days, Gutierrez's flu-like symptoms worsened. He had difficulty breathing and could not eat or drink. He visited the vessel's nurse several times. About eight days after his symptoms began, he was taken off the boat in St. Paul, Alaska, and flown by medical aircraft to Anchorage and then to a hospital in Seattle, Washington. There, doctors diagnosed him with a life-threatening illness and performed surgery.

         Gutierrez sued Icicle. He asserted several claims, including negligence under the Jones Act, [1] unseaworthiness, and failure to pay maintenance and cure.[2] After extensive discovery, Icicle moved for summary judgment. Gutierrez filed a comprehensive response to the motion. Two days later, Gutierrez moved for a voluntary nonsuit under CR41. Over Icicle's objection, the trial court granted the motion. It dismissed Gutierrez's negligence and unseaworthiness claims without prejudice but dismissed Gutierrez's failure to pay maintenance and cure claim with prejudice because Gutierrez had withdrawn that claim in his summary judgment response.

         The trial court retained jurisdiction to enter orders imposing attorney fees consistent with an earlier decision. But it declined to consider any additional requests for fees.


         CR 41

         First, we consider Icicle's challenge to the trial court's dismissal of Gutierrez's complaint under CR 41(a)(1)(B). This court reviews a decision to grant a voluntary dismissal under CR 41 for abuse of discretion.[3] But it reviews the application of a court rule to undisputed facts de novo.[4]

         CR 41(a)(1)(B) requires that a trial court dismiss a case "[u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of plaintiff's opening case." After the plaintiff rests his opening case, the court may grant a voluntary nonsuit upon a showing of good cause and appropriate conditions.[5] "A plaintiff's right to a voluntary nonsuit must be measured by the posture of the case at the precise time the motion is made because the right to dismissal, if any, becomes fixed at that point."[6] In the summary judgment context, Washington courts have determined that a plaintiff retains the right to a voluntary nonsuit until the motion for summary judgment has been "submitted to the court for decision."[7]

         Relying on this court's decision in Paulson v. Wahl, [8] the trial court concluded that "a case has been 'submitted' for decision only once oral argument on summary judgment is waived or has convened." We agree that this case had not yet been submitted to the court for decision when Gutierrez filed his CR 41 motion.

         Icicle contends that the parties have submitted a case for decision as soon as the opposing party files its opposition to summary judgment. Three Washington cases have interpreted when a case is submitted for decision in the context of a motion for summary judgment. These cases support the trial court's decision.

         In Beritich v. Starlet Corp., [9] our Supreme Court decided that a plaintiff could not move for a voluntary nonsuit after the court had announced its summary judgment decision. The court observed that "[t]he summary judgment procedure, at least from the defendant's viewpoint, would become a virtual nullity if a plaintiff can 'exit stage left' upon hearing an adverse oral decision of the trial judge on the summary judgment motion."[10]

         Beritich did not state exactly when a plaintiff loses the right to a voluntary nonsuit. In Paulson, this court clarified that a plaintiff does not lose the right to have the case voluntarily dismissed when a defendant files a summary judgment motion.[11] We decided that the parties had not submitted the case for decision because "no hearing [had] begun and the court [had] not otherwise exercised its discretion in the matter."[12]

         In Greenlaw v. Renn, [13] Division Two decided that expiration of the time for submitting responsive materials did not end the plaintiff's right to a voluntary dismissal without prejudice. Because the hearing on the motion had not started, the parties had not submitted the case to the court for decision.[14] The court held that "where a motion for voluntary nonsuit is filed and called to the attention of the trial court before the hearing on a summary judgment motion has started, the motion must be granted as a matter of right."[15]

         Here, unlike Beritich. but like Paulson and Greenlaw, the hearing on the matter had not started, and the court had given no indication of its decision on the motion. Significantly, this case does not present the concern expressed in Beritich, allowing a plaintiff to ...

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