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Guillen v. Pierce County4/27/2005
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
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 Wn. App. 862, 865, 982 P.2d 123 (1999), vacated by 144 Wn.2d 696 (2001), rev'd in part by 537 U.S. 129 (2002).
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 Wn. App. at 866. 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).
In his lawsuit, Ignacio again sought the County's records pertaining to accidents at the intersection. Guillen, 96 Wn. App. at 867. When the County again refused to produce them, the trial court ordered the County to disclose several documents and reports. See Guillen, 96 Wn. App. at 867-68.
Pierce County then moved for discretionary review of the trial court's order. See Guillen, 96 Wn. App. at 868. 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 sec. 152 and sec. 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).
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.
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 d
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