Greenlaw v. Renn, 13647-3-II

• Decision Date: 02 March 1992
• Docket Number: No. 13647-3-II,13647-3-II
• Citation: 824 P.2d 1263,64 Wn.App. 499
• Parties: Rosemary GREENLAW, Appellant, v. John RENN, M.D., and Jane Doe Renn, husband and wife, and Good Samaritan Hospital, Respondents.
• Court: Washington Court of Appeals

Page 499

64 Wn.App. 499

824 P.2d 1263

Rosemary GREENLAW, Appellant, v. John RENN, M.D., and Jane Doe Renn, husband and wife, and Good Samaritan Hospital, Respondents.

No. 13647-3-II.

Court of Appeals of Washington,

Division 2.

March 2, 1992.

Robert A. Izzo, Tacoma, for appellant.

James P. Murphy, Schwabe Williamson & Wyatt, Seattle, for respondent Renn.

Eric L. Freise, Daniel M. Torrence, Law Offices of Eric L. Freise, Seattle, for respondent Good Samaritan Hosp.

ALEXANDER, Judge.

Rosemary Greenlaw appeals a summary judgment of the Pierce County Superior Court that dismissed, with prejudice, her malpractice action against Dr. John Renn and Good Samaritan Hospital. She claims on appeal that the trial court erred in not granting her motion for a voluntary nonsuit before ruling on the defendants' motion for summary judgment. We agree and reverse.

Greenlaw alleged in her complaint that Dr. Renn and Good Samaritan had been negligent in the manner in which they treated her for a broken leg. They answered the complaint, denied negligence, counterclaimed for attorney's fees and costs, and moved, pursuant to CR 56, for a summary judgment of dismissal with prejudice. As a part of their motion, they each requested costs and attorney's fees, pursuant to the provisions of RCW 4.84.185, contending that Greenlaw's lawsuit was frivolous.

The summary judgment motion was scheduled to be heard on January 12, 1990, but the hearing on the motion was continued to January 19. Greenlaw did not file any affidavits or other materials in response to the defendants' motion. Instead, on the afternoon of January 18, 1990, Greenlaw's counsel filed a "Motion for Voluntary Dismissal" with the Pierce County Clerk, in which she sought dismissal of her cause of action without prejudice. Greenlaw's counsel served opposing counsel with a copy of the motion on that same day.

The following day, January 19, counsel for Greenlaw, Renn and Good Samaritan appeared for the scheduled hearing on the summary judgment motion. At the outset of that hearing, the trial court indicated that it had not received any materials from Greenlaw in response to the defendants' motion. The following colloquy between the trial court and plaintiff's counsel ensued:

MR. IZZO: I had delivered to you yesterday a motion for voluntary dismissal.

THE COURT: I did not receive it. Where did you deliver it to?

MR. IZZO: I sent it by legal messenger to the court administrator's office and clerk's office with directions to file it yesterday.

THE COURT: I don't have that.

THE CLERK: I checked both places at 8:30 this morning.

MR. IZZO: I sent it out special with the messengers.

THE COURT: I'll hear from Mr. Markovich [counsel for Dr. Renn].

The trial court then heard Renn's counsel advance arguments in favor of summary judgment. Renn's arguments were adopted by counsel for Good Samaritan. The trial court asked Greenlaw's counsel for a response and he again reminded the trial court of his motion for voluntary dismissal. He argued that, pursuant to the provisions of CR 41, his client had an absolute right to a voluntary dismissal. The trial court declined to rule on Greenlaw's motion and granted summary judgment, dismissing Greenlaw's complaint with prejudice. The trial court also granted the defendants' request for attorney's fees and costs.

The only issue before us is whether the trial court erred in not granting Greenlaw's motion for dismissal without prejudice. CR 41(a)(1)(B) provides, in part, as follows Any action shall be dismissed by the court: By plaintiff before resting. Upon motion of the plaintiff at any time before the plaintiff rests at the conclusion of his opening case.

(Italics ours.)

Greenlaw argues that under this rule, she had an absolute right to obtain a voluntary nonsuit at any time prior to the summary judgment motion hearing. Renn and Good Samaritan respond that Greenlaw's motion to dismiss was made too late to entitle her to a voluntary nonsuit as a matter of right.

The right to a voluntary nonsuit is measured by the posture of the case at the time the motion is made, and the right to a dismissal is fixed at that point. Elliott v. Peterson, 92 Wash.2d 586, 588, 599 P.2d 1282 (1979). After a plaintiff rests his or her case, the right to a voluntary nonsuit, pursuant to CR 41(a)(1)(B), is no longer absolute and a voluntary nonsuit can be granted "only upon a showing of good cause."

In Paulson v. Wahl, 10 Wash.App. 53, 57, 516 P.2d 514 (1973), this court concluded that a plaintiff has a right to a voluntary dismissal when the motion to dismiss is filed in lieu of filing responding affidavits to a motion for summary judgment:

We hold that a reasonable and proper interpretation of CR 41(a)(1)(B) and CR 56 dictates that a nonmoving plaintiff in a summary judgment procedure retains the right to a voluntary nonsuit until the motion for summary judgment has been submitted to the court for decision....

Renn and Good Samaritan argue that this case differs from Paulson because Greenlaw did not file her motion for nonsuit until after the time for filing a response to the summary judgment motion had expired. They argue that Greenlaw had, in effect, rested her case and, as a consequence, she was no longer entitled to a nonsuit as a matter of right. They call our attention to Beritich v. Starlet Corp., 69 Wash.2d 454, 418 P.2d 762 (1966), in which the court held that a trial court erred in granting a plaintiff's motion for a voluntary dismissal without prejudice that was made after the trial court had orally announced its decision in favor of the defendant on the motion for summary judgment. The court held that the plaintiff was not, in such circumstances, entitled to a nonsuit as a matter of right, and noted that allowing a...