League v. King County Records, 56281-9-I.

• Citation: 135 P.3d 985,133 Wn. App. 374
• Decision Date: 05 June 2006
• Docket Number: No. 56281-9-I.,56281-9-I.
• Court: Washington Court of Appeals
• Parties: The LEAGUE OF WOMEN VOTERS OF WASHINGTON, a nonpartisan political organization; Elliot Newman, a Mercer Island voter and taxpayer; Ben J. Werner, a Mercer Island voter and taxpayer; Myra Lupton, a Mercer Island voter and taxpayer; and Pat Matteson, a Mercer Island voter and taxpayer, Respondents, v. KING COUNTY RECORDS, ELECTIONS AND LICENSING SERVICES DIVISION; and Dean Logan, the Director of King County Records, Elections and Licensing Services Division, in his official capacity only, Defendants, v. Save Mi Sov, a Washington nonprofit corporation, Appellant.

135 P.3d 985

133 Wn. App. 374

The LEAGUE OF WOMEN VOTERS OF WASHINGTON, a nonpartisan political organization; Elliot Newman, a Mercer Island voter and taxpayer; Ben J. Werner, a Mercer Island voter and taxpayer; Myra Lupton, a Mercer Island voter and taxpayer; and Pat Matteson, a Mercer Island voter and taxpayer, Respondents, v. KING COUNTY RECORDS, ELECTIONS AND LICENSING SERVICES DIVISION; and Dean Logan, the Director of King County Records, Elections and Licensing Services Division, in his official capacity only, Defendants, v. Save Mi Sov, a Washington nonprofit corporation, Appellant.

No. 56281-9-I.

Court of Appeals of Washington, Division 1.

June 5, 2006.

Matt O'Meara, Seattle, for Appellant.

Steve W. Berman, Jeniphr A.E. Breckenridge, Hagens Berman Sobol Shapiro, Seattle, for Respondents.

COX, J.

¶ 1 A dismissal of a plaintiff's case is generally mandatory at any time before "plaintiff rests at the conclusion of his [or her] opening case."¹ Plaintiff The League of Women Voters (the League) moved to dismiss its case almost seven months after winning a preliminary injunction at a contested hearing. Intervenor Save Mercer Island's Single Occupant Vehicle (SAVE MI SOV) argues that the trial court abused its discretion in granting the dismissal motion. Because the preliminary injunction hearing was not the functional equivalent of a trial in this case, we affirm.

¶ 2 The relevant facts are undisputed. In August 2004, the Mercer Island City Council passed Resolution 1337. It provided that Mercer Island agreed to amend a 1976 Memorandum of Agreement with Seattle, King County, Bellevue, and the Washington State Highway Commission. The effect of the amendment was to convert center High Occupancy Vehicle (HOV) lanes on Interstate 90 to high capacity transit lanes. The amendment also terminated Mercer Island residents' right to use HOV lanes by single-occupancy vehicles.

¶ 3 SAVE MI SOV is a nonprofit corporation formed by a citizen group. SAVE MI SOV obtained sufficient signatures to place a referendum challenging Resolution 1337 on the November 2004 ballot. The League commenced this declaratory judgment action against King County seeking injunctive and other relief against the County placing the referendum on that ballot. King County appeared, but took no active position in the lawsuit. The superior court granted SAVE MI SOV's motion to intervene to oppose the League's request for a preliminary injunction.

¶ 4 After a contested hearing, the trial court granted a preliminary injunction on a basis not pertinent to this appeal. The court did not require the posting of a bond. That same day, SAVE MI SOV sought emergency discretionary review, which we denied that afternoon.

¶ 5 Nearly seven months later, the League moved for voluntary dismissal pursuant to CR 41(a)(1)(B). The court granted the motion.

¶ 6 SAVE MI SOV appeals.

MANDATORY DISMISSAL

¶ 7 SAVE MI SOV argues that the League lost its right to mandatory dismissal of this action when it earlier submitted the merits of its complaint to the court at the preliminary injunction hearing. We hold that dismissal of this action was mandatory under CR 41(a)(1)(B).²

¶ 8 Court rules are interpreted using principles of statutory construction.³ In considering a statute, we must "assume that the legislature means exactly what it says,"⁴ and we will "give words . . . their plain and ordinary meaning."⁵ When reading a statute, we will not construe language that is clear and unambiguous, but will instead give effect to the plain language without regard to rules of statutory construction.⁶ The construction of a statute is a question of law that we review de novo.⁷ Where we are required to review the application of a court rule to the facts or to harmonize a court rule with a statute, our review is also de novo.⁸

¶ 9 CR 41(a)(1)(B), the rule at issue, provides:

[A]ny action shall be dismissed by the court:

. . .

(B) By Plaintiff Before Resting. Upon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case.⁹

. . .

A voluntary dismissal is without prejudice unless the trial court provides otherwise.¹⁰

¶ 10 The dispute before us centers on the meaning of the words "at the conclusion of his opening case" in the rule. SAVE MI SOV argues that the contested hearing on the League's motion for preliminary injunctive relief was akin to a trial, and that the League presented its "opening case" at that hearing and then rested. The effect of the League's actions, according to SAVE MI SOV, was to terminate the League's right to seek mandatory dismissal at a later time under this rule.

¶ 11 No Washington case has addressed this issue. The parties appear to agree that the phrase applies where a matter proceeds to the point at trial of an action where plaintiff presents his or her case and then moves for dismissal before resting. They disagree whether and to what extent the rule applies where plaintiff seeks a voluntary dismissal before trial.

¶ 12 We conclude that the plain and most natural reading of the phrase at issue is that it is generally limited to a voluntary dismissal at trial "at any time before plaintiff rests" following the presentation of plaintiff's opening case. RCW 4.56.120, a statute dealing with the same subject matter as the court rule, supports this conclusion in that it states in relevant part:

¶ 13 An action in the superior court may be dismissed by the court and a judgment of nonsuit rendered in the following cases:

(1) Upon the motion of the plaintiff, (a) when the case is to be or is being tried before a jury, at any time before the court announces its decision in favor of the defendant upon a challenge to the legal sufficiency of the evidence, or before the jury retire to consider their verdict, (b) when the action, whether for legal or equitable relief, is to be or is being tried before the court without a jury, at any time before the court has announced its decision . . .¹¹

¶ 14 This statute offers alternatives for a nonsuit at times other than the time stated by the rule. But regardless of the fact that the statute uses times during trial other than after "plaintiff rests at the conclusion of his opening case," it clearly permits a nonsuit up to a point during trial, not before. In order to harmonize the provisions of the rule with those of the statute, we conclude that a plaintiff generally has the right to a voluntary mandatory dismissal under CR 41(a)(1)(B) any time before "plaintiff rests at the conclusion of his opening case" during trial.

¶ 15 SAVE MI SOV relies on cases from other jurisdictions to support its interpretation of CR 41. None are helpful.

¶ 16 The primary case on which SAVE MI SOV relies is Bancroft & Martin, Inc. v. Truck Drivers, Warehousemen & Helpers Union.¹² There, the Maine Supreme Court interpreted that state's voluntary dismissal rule in the context of the statutory right to appeal a preliminary injunction. The employer commenced an action and obtained a preliminary injunction to prohibit picketing workers from blocking access to the employer's place of business. The union appealed, and the employer then moved for voluntary dismissal in the trial court,¹³ subsequently arguing that the appeal should be dismissed because, having dismissed the action in the trial court, there was nothing to appeal.

¶ 17 The "limited circumstance" considered by the court distinguishes Bancroft & Martin from this case. The court noted that it interpreted its civil rule permitting voluntary dismissal "before commencement of the action" as meaning before the commencement of the preliminary injunction hearing only because "[t]o hold otherwise would be to deprive a defendant against whom a preliminary injunction has issued of the statutorily granted right of appeal."¹⁴ No such statutory right is at stake in this case.

¶ 18 SAVE MI SOV cites Miller v. Wilkes¹⁵ for the proposition that the right to voluntary dismissal should be terminated by any action by the defendant, such as a memorandum and affidavit in opposition to plaintiff's motion for preliminary injunction, "which would require the court to consider the merits of the controversy."¹⁶ In Miller, the court considered whether the court had the power to award attorney fees following a voluntary dismissal. It held that, under the Alaska rule, which mirrors the federal rule, the memorandum filed in opposition to the motion for preliminary injunction was tantamount to an answer, cutting off plaintiff's right to dismissal by notice.¹⁷ Therefore, the trial court was within its power considering the notice as a motion for dismissal and awarding costs.¹⁸

¶ 19 This case is inapposite for two reasons. First, the Alaska rule, like the federal rule, is more restrictive than the Washington rule. In Washington, the filing of an answer does not cut off the plaintiff's right to voluntary dismissal. Second, Miller did not hold that a hearing on a motion for preliminary injunction is akin to a trial or analogous to a party resting its opening case.

¶ 20 Finally, SAVE MI SOV likens this case to Prefer v. PharmNetRx, L.L.C.,¹⁹ a Colorado replevin action. There, the plaintiff obtained a preliminary injunction against a fired employee, which required him to return hardware, information and related software he had developed and taken. After the defendant returned the software, but before trial, plaintiff filed a motion for voluntary dismissal. The court granted the motion with prejudice, at the same time denying Prefer's request for return of the items that were the subject of the replevin order.²⁰

¶ 21 Prefer is of little help here due to the "extraordinary nature of a writ of replevin."²¹ Because of the unique situation presented in that case, the Colorado court of appeals noted that "general law has held that where a plaintiff has been put in possession of property under a writ, he cannot escape liability to the defendant by voluntarily dismissing [the...