Guillen v. Pierce County

• Decision Date: 27 April 2005
• Docket Number: No. 31258-1-II.,31258-1-II.
• Court: Washington Court of Appeals
• Parties: Ignacio GUILLEN as Legal Guardian for Jennifer Guillen and Alma Guillen, minors; and Mariano Guillen, as Legal Guardian for Paulina Guillen and Fatima Guillen, Respondents, v. PIERCE COUNTY, a municipal corporation, and The Estate of Clementina Guillen-Alejandre, Appellants.

110 P.3d 1184

127 Wash. App. 278

Ignacio GUILLEN as Legal Guardian for Jennifer Guillen and Alma Guillen, minors; and Mariano Guillen, as Legal Guardian for Paulina Guillen and Fatima Guillen, Respondents, v. PIERCE COUNTY, a municipal corporation, and The Estate of Clementina Guillen-Alejandre, Appellants.

No. 31258-1-II.

Court of Appeals of Washington, Division 2.

April 27, 2005.

Salvador Alejo Mungia, Gordon Thomas Honeywell, John Bradley Buckhalter, Malanca Peterson & Daheim LLP, Tacoma, WA, for Respondents.

Daniel Ray Hamilton, Attorney at Law, Deputy Pros. Atty., Tacoma, WA, for Petitioners.

ARMSTRONG, J.

¶1 The Guillens brought two identical suits against Pierce County, voluntarily dismissed both under CR 41(a)(1)(B), and refiled the same suit a third time. Pierce County appeals the trial court's denial of its CR 12(b)(1) motion to dismiss the third suit under CR 41(a)(4), the "two dismissal rule." Because under CR 41(a), a plaintiff's second unilateral voluntary dismissal is automatically with prejudice, and because the Guillens have not shown that the County waived the rule or should be estopped from invoking it, we reverse.

FACTS

¶2 In July of 1996, Clementina Guillen-Alejandre died in an automobile accident at an intersection Pierce County designed and maintained. Guillen-Alejandre's four children were also injured in the accident. Guillen-Alejandre's husband, Ignacio Guillen, asked the County to disclose records relating to the intersection. See Guillen v. Pierce County, 96 Wash.App. 862, 865, 982 P.2d 123 (1999),

vacated by 144 Wash.2d 696, 31 P.3d 628 (2001),

rev'd in part by 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2002).

¶3 After the County denied the request, Ignacio sought judicial review under the Public Disclosure Act. The trial court granted Ignacio access to the records and the County appealed. See Guillen, 96 Wash.App. at 866,

982 P.2d 123. While the County's appeal was pending, Ignacio, on behalf of his wife's estate and the children, filed a wrongful death and personal injury action against Pierce County for the negligent design and maintenance of the intersection. In its answer, Pierce County asserted that the Guillens failed to wait the statutorily required 60 days between giving the County notice of his claim and filing suit. RCW 4.96.020(4).¹

¶4 In his lawsuit, Ignacio again sought the County's records pertaining to accidents at the intersection. Guillen, 96 Wash.App. at 867, 982 P.2d 123. When the County again refused to produce them, the trial court ordered the County to disclose several documents and reports. See Guillen, 96 Wash. App. at 867-68,

982 P.2d 123.

¶5 Pierce County then moved for discretionary review of the trial court's order. See Guillen, 96 Wash.App. at 868,

982 P.2d 123.

The two appeals were consolidated and were ultimately resolved by the U.S Supreme Court. See Pierce County v. Guillen, 537 U.S. 129, 146, 123 S.Ct. 720, 154 L.Ed.2d 610, (2003) (holding that the scope of the evidentiary and discovery privilege provided by 23 USCA § 152 and § 409 was not limited to documents created for purposes of participating in the program by the state public works department or other agencies, but it also included accident reports and other documents originally prepared by other entities, to the extent those documents were collected for the purpose of participating in the Hazard Elimination Program).

¶6 On January 2, 1999, the Guillens filed a second complaint, identical to the first, in Pierce County Superior Court. In a letter to the County, the Guillens explained that they were filing the complaint in response to the County's affirmative defense; they asserted that they were "still within the statutory time limits to file an action and [would] move to have the two causes of action joined in the near future." Clerk's Papers (CP) at 9, 11. They obtained a stay of proceedings for the second action during the appeal of the 1998 action. After the appeal, the superior court denied the Guillens' motion to consolidate the cases.

¶7 In May 2003, the County moved to dismiss the 1999 action, arguing that because the 1998 action was identical to the 1999 action, the "priority of action" rule required the court to dismiss the 1999 action. CP at 102-06. At argument on the motion, the court and the County's counsel had the following exchange:

The Court: All right. So if the plaintiff were to take a dismissal on that first action, where would you be then?

Mr. Hamilton: Well, that's an interesting issue. They haven't done that, Your Honor.

The Court: I'm just asking because it seems as if, you know, it's not all that complicated.

Mr. Hamilton: What should have been done—what should have been done is when the affirmative [claim filing] defense was raised, then I think by request for admission asked what do you mean by that and we expressly said you didn't do that and you are supposed to and then they filed instead of dismissing it, which the case says, they filed a cause of action.

Number two, what they could have done and still can is this case should be dismissed. They can dismiss case number one, refile it because otherwise what you have is by this process is an end run around the statute and the Supreme Court has been quite clear that it requires strict compliance and the cases interpreting have been quite clear that the remedy for this is dismissal.

CP at 80-81.

¶8 Instead of granting the County's motion, the court transferred the 1999 case to the judge before whom the 1998 action was still pending.

¶9 A few days later, the Guillens moved for a voluntary nonsuit under CR 41(a)(1)(B) in each of their two actions. They sent their proposed motions and orders to the County and the County's counsel approved the form of the orders; each order stated it was without prejudice.² The County's counsel claims that because the Guillens' counsel never mentioned re-filing, he believed the Guillens were ending the litigation because of the likely difficulty they would have in proving liability after the Supreme Court's ruling.

¶10 Four months later, the Guillens filed their third action on the same claims against Pierce County. The County immediately moved to dismiss the third action under CR 41(a)(4) and CR 12. The trial court denied the motion because it did not believe that the Guillens intended to harass the County. Further, it explained:

I am going to deny the County's motion to dismiss under CR 12 [and CR 41]. I do think that the principles of waiver apply to this situation, in that, the actions of the plaintiff, the legal actions, were invited by arguments before another department. So I am going to deny the motion.

CP at 241.

ANALYSIS

¶11 The County argues that CR 41(a) precluded the Guillens from voluntarily dismissing the first two suits and then filing the third suit. The County argues that it neither said or did anything that would estop it from invoking CR 41(a) and that waiver does not apply to CR 41(a).

¶12 The Guillens maintain that the County either waived the CR 41(a)(4) defense or should be estopped from asserting it. The Guillens also argue that CR 41(a) is intended to prevent harassing lawsuits and that the trial court properly concluded that they did not intend to harass the County.

I. Standard of Review

¶13 We review the trial court's interpretation of CR 41(a) de novo; and, because the trial court decided the waiver issue solely on a written record, we review the waiver issue de novo also. See Spokane County v. Specialty Auto & Truck Painting, Inc., 153 Wash.2d 238, 244, 103 P.3d 792 (2004)

(citing City of Seattle v. Guay, 150 Wash.2d 288, 76 P.3d 231 (2003)); see also, Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wash.2d 243, 252, 884 P.2d 592 (1994).

¶14 Under CR 41(a), the court must grant a voluntary dismissal where (1) all parties stipulate to it, or (2) the plaintiff moves for dismissal before resting. CR 41(a)(4) explains the effect of voluntary dismissals:

Unless otherwise stated in the order of dismissal, the dismissal is without prejudice except that an order of dismissal operates as an adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.

CR 41(a)(4)

1. The Guillens' Intent

¶15 The trial court erred in considering the Guillens' intent. Since the trial court's ruling, the Supreme Court has held that the two-dismissal rule of CR 41(a) applies automatically to unilateral dismissals by the plaintiff and "does not provide for court discretion to look into the reasons for the dismissal." Specialty Auto, 153 Wash.2d at 247, 103 P.3d 792.

2. Waiver

¶16 The trial court also erred in ruling that the County waived its right to assert the "two dismissal rule" under CR 41(a)(4). Waiver is the "intentional abandonment or relinquishment of a known right." Mid-Town Ltd. P'ship v. Preston, 69 Wash. App. 227, 233, 848 P.2d 1268 (1993). It must be shown by "substantial evidence" of unequivocal acts or conduct showing intent to waive, "and the conduct must also be inconsistent with any intention other than to waive." Mid-Town, 69 Wash.App. at 233-34, 848 P.2d 1268 (citing Dep't of Revenue v. Puget Sound Power & Light Co., 103 Wash.2d 501, 505, 694 P.2d 7 (1985)). The Guillens have the burden of proving waiver. Jones v. Best, 134 Wash.2d 232, 242, 950 P.2d 1 (1998) (citing Rhodes v. Gould, 19 Wash. App. 437, 441, 576 P.2d 914 (1978)).

A. The Statements

¶17 The Guillens argue that the County waived its right to assert CR 41(a) because it stated on the record that "it would not oppose the Guillens' decision to dismiss the 1998 and 1999 actions then file this action." Br. of Respondent at 24. The County never used those words; and in fact, it is unclear what the County meant to say.

¶18 Nevertheless, the statements fall short of showing by substantial evidence that the County unequivocally intended to waive CR 41(a...