      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CARLOS GUTIERREZ,                       )       No. 75209-0-1
                                        )
                     Respondent,        )       DIVISION ONE
                                        )
       v.                               )
                                        )       PUBLISHED OPINION
ICICLE SEAFOODS, INC.,                  )
an Alaska corporation,                  )                                             Cr: rr"..
                                        )
                                                                                      C:
                     Appellant.         )       FILED: April 3, 2017
                                        )                                      ct
       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.

                                     FACTS

       Gutierrez developed a sore throat while working as a processor on one of

Icicle's commercial fishing vessels, the PN 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
No. 75209-0-1 /2



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 CR 41.     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.




       1 46 U.S.C. § 30104.
       2 General maritime law requires a shipowner to pay a seaman a daily
stipend for food and lodging (maintenance) and the cost of reasonable,
necessary medical treatment (cure) when the seaman becomes ill in the service
of a vessel. Tuyen Thanh Mai v. Am. Seafoods Co., 160 Wn. App. 528, 538, 249
P.3d 1030 (2011).
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                                      ANALYSIS

                                         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 lulpon 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




       3 Farmers Ins. Exch. v. Dietz, 121 Wn. App. 97, 100, 87 P.3d 769 (2004).
      4 Farmers Ins. Exch., 121 Wn. App. at 100; Calvert v. Berg, 177 Wn. App.
466, 471, 312 P.3d 683(2013).
       5 CR 41(a)(2).
      6 Calvert, 177 Wn. App. at 472.
      7 Paulson v. Wahl, 10 Wn. App. 53, 57, 516 P.2d 514 (1973).
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       Relying on this court's decision in Paulson v. Wah1,8 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."1°

       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


       8 10 Wn. App. 53, 57, 516 P.2d 514 (1973).
       9 69 Wn.2d   454, 459, 418 P.2d 762 (1966).
       19 Beritich, 69 Wn.2d at 458.
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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 evade an unfavorable summary judgment decision

before entry of a written order.




       11 Paulson, 10 Wn. App. at 55-57.
       12 Paulson, 10 Wn. App. at 57.
       13 64 Wn. App. 499, 503, 824 P.2d 1263(1992).
       14 Greenlaw, 64 Wn. App. at 500-02.
       15 Greenlaw, 64 Wn. App. at 503.
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       We find this case most analogous to Greenlaw. Although Gutierrez filed

responsive briefing and Greenlaw did not, in both cases the time to file

responsive briefing had expired.16 The plaintiff occupied the same position in

each case; neither plaintiff had the right to file additional briefing but each

retained the opportunity to present oral argument at the summary judgment

hearing. Like Greenlaw, the parties had not submitted the case to the trial court

for decision.

       Icicle's argument implicitly assumes that oral argument is window dressing

that plays no role in the trial court's decision-making. We disagree. "A party

resisting a summary judgment motion is entitled to a hearing before the trial court

at which arguments can be made."17 Oral argument can provide information and

clarification that influences the court's decision.   Until the court hears oral

argument, the parties have not submitted to the court everything that the court

will consider, unless the parties have waived argument.

       Icicle also asserts that as a matter of fairness, dismissal was not

appropriate here because extensive discovery had been completed and the court

had ruled on several discovery-related issues. But Icicle does not and cannot

cite any words in CR 41(a)(1)(B) supporting this claim. Nor does it cite any

supporting case law. CR 41(a)(1)(B) does not grant discretion to the court to

       16 See Greenlaw, 64 Wn. App. at 500-01.
       17 Greenlaw, 64 Wn. App. at 503.
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consider fairness. When Gutierrez filed his CR 41 motion, he had an absolute

right to a voluntary nonsuit. The trial court had to grant his request for dismissal.

It had no discretion to decide whether it considered dismissal without prejudice

fair relief.

        Because no hearing had started, the parties had not submitted the case

for decision, and the trial court properly dismissed it without prejudice.

                                    Amendment

        Icicle also claims that the order of dismissal should be amended to

dismiss with prejudice any claims that Gutierrez abandoned or withdrew.

Specifically, Icicle asserts that claims related to the failure to pay maintenance

and cure and claims for economic loss should be dismissed with prejudice. As

stated above, we review decisions on a CR 41 motion to dismiss for abuse of

d iscretion.18

        First, no remand is necessary to dismiss with prejudice claims related to

failure to pay maintenance and cure.        Gutierrez's response to the summary

judgment motion stated that "he withdraws his claim for failure to pay

maintenance and cure (though he does not withdraw his claims based on

defendant's failures to provide cure)."      The trial court found that Gutierrez



      18 Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 187,
69 P.3d 895 (2003).
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"unequivocally withdrew his claim for failure to pay maintenance and cure" and,

accordingly, dismissed that particular claim with prejudice. Icicle asserts that the

trial court order should expressly include other related claims, such as claims

about the sufficiency of seaman's benefits and claims for damages related to the

administration or payment of seaman's benefits.           But the trial court order

precisely reflects what Gutierrez conceded. We find remand for clarification

unnecessary.

       Second, we decline to remand to include dismissal of any additional

economic loss claims with prejudice. Icicle contends that Gutierrez abandoned

his economic loss claims with his response to Icicle's interrogatories that "Plaintiff

is not making a claim for lost wages—other than with respect to any unearned

wages that may not have been paid—or impaired future earning capacity." Icicle

asserts that by this statement Gutierrez abandoned any claim for loss of wages

and any claim for economic loss should be dismissed with prejudice.               We

disagree.

      "A trial court's discretion under CR 41(a)(4) to order dismissal with

prejudice should be exercised only in limited circumstances where dismissal

without prejudice would be pointless."19 For example, courts will dismiss a claim

with prejudice when the statute of limitations has run or where the plaintiff has


       19   Escude, 117 Wn. App. at 187.
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conceded the claim.20 Here, Gutierrez never conceded that the challenged claim

was meritless, and Icicle has not shown that the statute of limitation had run.

Under these circumstances, Icicle has not shown that dismissal without prejudice

would be pointless.

                                        CR 37

       Finally, Icicle contends that the trial court should have retained jurisdiction

to consider Icicle's motion for fees under CR 37(c). "Although a voluntary

dismissal under CR 41(a)(1)(B) generally deprives a court of authority to decide a

case on the merits, 'the court retains jurisdiction for the limited purpose of

considering a defendant's motion for fees,' which is collateral to the underlying

proceeding.»21    CR 37 provides the trial court with broad discretion "to make

wh[a]tever. . . disposition is just in the light of the facts of the particular case.'"22

Here, the trial court acted within its discretion in declining to consider the CR 37

motion.

       Icicle has not proved a matter that Gutierrez refused to admit, entitling it to

recover fees under CR 37(c). CR 37(c) permits a party to seek reasonable

expenses and attorney fees incurred in proving the truth of an issue that the

       20 Escude, 117 Wn. App. at 191-92.
       21 Calvert, 177 Wn. App. at 473 (quoting Hawk v. Branjes, 97 Wn. App.
776, 782-83,  986 P.2d 841 (1999)); see also Escude, 117 Wn. App. at 192.
       22 Mavis v. King County Pub. Hosp. No. 2, 159 Wn. App. 639, 652, 248
P.3d 558 (2011) (alterations in original) (quoting Reid Sand & Gravel, Inc. v.
Bellevue Props., 7 Wn. App. 701, 705, 502 P.2d 480 (1972)).
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No. 75209-0-1 / 10



opposing party did not admit in response to a CR 36 request for admission.

Here, in response to Icicle's requests for admissions, Gutierrez denied that he

had been paid the full amount of maintenance owed to him. After Gutierrez

withdrew his claim for maintenance, Icicle sought to request fees incurred in

developing the issue. Icicle argues that Gutierrez's withdrawal of this claim

entitles it to fees and costs under CR 37(c). We disagree. A party may withdraw

a claim for reasons unrelated to the merits of the claim. The cost of litigation is

one example. Icicle cannot rely on the withdrawal to show that it proved the

issue.

         Further, Icicle did not tell the trial court that it wanted to introduce

additional evidence that would prove the issue. On appeal, Icicle characterizes

its request as seeking an opportunity to submit the issue for the trial court's

consideration. But Icicle asserted to the trial court that "Defendant has proved

the truth of each of these matters th[r]ough Plaintiff's written discovery responses

and/or Plaintiff's Opposition to Defendant's Summary Judgment Motion." Icicle

did not ask the trial court for an opportunity to prove the matter, only the

opportunity to apply for an order awarding expenses. The trial court had no

reason to retain jurisdiction when Icicle had not proved the issue and did not ask

for the chance to present additional evidence that would prove it.



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       A trial court has discretion to decide whether to impose sanctions. Here,

the trial court retained jurisdiction to award Icicle some fees, recognizing its

authority to do so, but also indicated that it would not consider any further issues.

The trial court did not abuse its discretion in declining to retain jurisdiction to

permit Icicle to make an additional request for fees.

                                  CONCLUSION

       Because the hearing on the summary judgment motion had not started or

been waived, the parties had not submitted Icicle's summary judgment motion for

decision. Thus, Gutierrez retained his right to a voluntary nonsuit. Also, Icicle

has not shown that the trial court committed any error in dismissing only one

claim with prejudice or that it abused its discretion in declining to retain

jurisdiction to consider Icicle's CR 37(c) motion. We affirm.




WE CONCUR:




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