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.
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.
sued Icicle. He asserted several claims, including negligence
under the Jones Act,  unseaworthiness, and failure to pay
maintenance and cure. 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had withdrawn that claim in his summary judgment response.
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.
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. But it reviews the
application of a court rule to undisputed facts de
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. "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." 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
on this court's decision in Paulson v. Wahl,
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.
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
Beritich v. Starlet Corp.,  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."
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. 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."
Greenlaw v. Renn,  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. 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."
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 ...