* Icicle Seafoods, Inc., Appellant vs. Carlos Gutierrez, Respondent

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CARLOS GUTIERREZ, ) No. 75209-0-1
)
Respondent, ) DIVISION ONE
)
v. )
)
ICICLE SEAFOODS, INC., )
an Alaska corporation, )
)
Appellant. ) FILED: April 3, 2017
)
PUBLISHED OPINION
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
Cr: rr"..
C:
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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).
-2-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 3
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).
-3-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 4
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.
-4-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 5
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.
-5-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1 / 6
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.
-6-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/7
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).
-7-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 8
"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.
-8-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 9
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)).
-9-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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.
-10-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 75209-0-1/ 11
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:
-11-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.