No. 51128-9-IThe Court of Appeals of Washington, Division One.
Filed: March 3, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 022174159, Hon. Richard McDermott, August 28, 2002, Judgment or order under review.
Counsel for Petitioner(s), Roger L. Baker (Appearing Pro Se), 612 S.W. Ambaum Blvd, Burien, WA 98166.
Counsel for Respondent(s), Nathaniel B. Green Jr., Attorney At Law, Ste 201, 15500 S.E. 30th Pl, Bellevue, WA 98007.
PER CURIAM.
CR 41(a)(1)(B) provides for voluntary dismissal without prejudice upon motion of the plaintiff made any time before plaintiff rests at the conclusion of its opening case. Roger Baker sought voluntary dismissal before the trial court considered Farmers Insurance Company’s motion to dismiss under CR 12(b)(6). Because the trial court committed obvious error in dismissing Baker’s claim against Farmers with prejudice rather than granting voluntary dismissal, we grant discretionary review and reverse.
FACTS
On July 10, 2002, Roger Baker filed a complaint against James Kotlik and Farmers Insurance Company, seeking damages for injuries Baker suffered when Kotlik’s car struck Baker while he was riding his bicycle. The complaint alleged that Farmers provided automobile liability insurance to Kotlik. On August 8, Farmers filed a motion to dismiss Baker’s claim against it under CR 12(b)(6). On August 15, Baker filed a “Partial Voluntary Dismissal”, requesting that the court dismiss his claim against Farmers without prejudice under CR 41. On August 28, the trial court granted Farmers’ CR 12(b)(6) motion to dismiss Baker’s claim against it. Baker now seeks discretionary review. ANALYSIS RAP 2.3(b)(1) provides for discretionary review if the superior court committed obvious error which would render further proceedings useless. Discretionary review is appropriate because the trial court obviously erred in failing to grant Baker’s CR 41(a)(1)(B) motion and further proceedings were rendered useless. CR 41(a)(1)(B) provides for voluntary dismissal of an action “[u1]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case.” The rule provides that the trial court “shall” dismiss an action when voluntarily dismissal is timely sought, revealing that it is mandatory.[1] A voluntary dismissal is without prejudice unless the trial court provides otherwise.[2]
Application of CR 41(a) is a question of law, reviewed de novo.[3] When Baker filed his voluntary dismissal, he had an absolute right to have his claim against Farmers dismissed without prejudice. The trial court’s failure to do so was error.
Greenlaw v. Renn is dispositive.[4] In Greenlaw, the day before a hearing on the defendant’s summary judgment motion, the plaintiff moved to voluntarily dismiss her claims. The trial court refused to consider her motion and granted the defendants summary judgment, dismissing plaintiff’s claims with prejudice. This court reversed, holding 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.”[5]
In this context, there is no distinction between voluntary dismissal sought before a court considers a CR 12(b)(6) motion and voluntary dismissal sought before a court hears a summary judgment motion. Baker filed his CR 41(a)(1)(B) motion before the trial court heard Farmers’ motion to dismiss, which was “before plaintiff rest[ed} at the conclusion of his opening case.”[6] The trial court erred in dismissing Baker’s claim under CR 12(b)(6).
We grant Baker’s motion for discretionary review and accelerate review. We reverse the trial court’s ruling dismissing Baker’s claim against Farmers under CR 12(b)(6) and remand for entry of a voluntary dismissal.