IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

CONFEDERATED TRIBES AND 

BANDS OF THE YAKAMA NATION,

Appellant,

v.

OKANOGAN COUNTY,

Respondent.

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No. 37129-8-III

UNPUBLISHED OPINION

FEARING, J. — This appeal concerns one of endless broken promises by American 

government authorities toward Native Americans. The breach of an agreement in this 

instance also encompasses a violation of a court order. 

The Confederated Tribes and Bands of the Yakama Nation (Yakama Nation)

agreed to dismiss a lawsuit against Okanogan County, and, in return, the county agreed to 

adopt, by December 31, 2018, a new comprehensive plan and zoning ordinance that 

hopefully addressed the concerns the Nation had about the county’s current plan and 

ordinance. The superior court signed an order of dismissal without prejudice of the 

lawsuit, which order incorporated the many promises of the parties. When Okanogan 

FILED

FEBRUARY 2, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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Confederated Tribes and Bands of the Yakama Nation v. Okanogan County

2

County failed to adopt a new plan and ordinance by December 31, 2018 and thereby 

violated the court order, the Yakama Nation moved to vacate the order of dismissal. The 

superior court denied the motion to vacate on the alternative grounds that it lacked 

authority to vacate an order of dismissal without prejudice and that the Nation had no 

sustainable cause of action against the county for breaching its promises or violating the 

court order. Because the order of dismissal without prejudice imposed numerous 

obligations on Okanogan County, some of which it has disobeyed, we rule that the 

motion to vacate should have been granted. We thus reverse the superior court. 

FACTS

Our facts principally cover the procedural history behind a dispute between the 

Yakama Nation and Okanogan County concerning the legal legitimacy of the county’s 

comprehensive plan and zoning code. On August 15, 2016, the Yakama Nation sued 

Okanogan County and alleged that the county’s comprehensive plan, zoning code, and 

other actions violated the State Environmental Policy Act (SEPA) chapter 43.21C RCW, 

the Growth Management Act (GMA) chapter 36.70A RCW, and the Planning Enabling 

Act of the State of Washington (PEA) chapter 36.70 RCW. This 2016 suit is the case 

now on appeal. 

Less than one year later, the Yakama Nation and Okanogan County reached a 

resolution of the lawsuit. The county agreed to adopt a new comprehensive plan and 

zoning ordinance, with input from the Nation, by the end of 2018, and the Nation agreed 
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to dismiss its suit without prejudice. On March 20, 2017, the Yakama Nation and 

Okanogan County executed a stipulated agreement and order of dismissal without 

prejudice in the lawsuit. The stipulated agreement read, in part:

1. This Stipulation is made for the dismissal of the above-captioned

action, which concerns [Okanogan County’s zoning ordinance]. The 

dismissal is made without prejudice to any future claims or defenses by any 

Party in any subsequent proceeding that concerns the Zoning Ordinance 

(either in its present form, or as amended), or any associated environmental 

review. This includes, without limitation, any future claims based on 

Okanogan County’s (“County”) actions or failures to act. 

2. Within sixty (60) days from the date of the execution of this 

Stipulation and associated Order, the County shall take all necessary 

action(s) to initiate a review of: 

a. Okanogan County’s Comprehensive Plan. . . ; and 

b. Okanogan County’s [zoning ordinance] . . . ; and 

c. The environmental review of the Comprehensive Plan and the 

Zoning Ordinance under Washington’s State Environmental Policy Act and 

applicable county ordinances. Such environmental review shall be “ab 

initio” to the commencement of the environmental review process leading 

to the adoption of the current Comprehensive Plan and Zoning Ordinance, 

meaning that any conclusions drawn in prior environmental review 

documents shall be open to new review in any subsequent proceeding. 

3. In conducting its reviews of the Comprehensive Plan and Zoning 

Ordinance, the County hereby affirms its intention to give serious 

consideration to all issues raised by the Yakama Nation, along with any 

issues raised by the general public, other governments, or County staff or 

officials.

4. During the County’s review of its Comprehensive Plan and

Zoning Ordinance, the County will continue to process land use permits 

and other development applications under the applicable County ordinances 

presently in place, and as amended. Plaintiff reserves any rights it may 

have to appeal any land use permit or development application 

determinations made by the County under such ordinances[.] . . . The 

County agrees to promptly implement an online, public permit tracking 

system identifying all land use applications as received, and any associated 

decisions or scheduled hearings.
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5. No later than December 31, 2018, the County shall take final 

legislative action(s) to (a) repeal, in their entirety, the current 

Comprehensive Plan . . . and current Zoning Ordinance . . . , and (b) adopt 

a new Comprehensive Plan and new Zoning Ordinance. . . . The County’s 

obligation to repeal in full the current Comprehensive Plan and Zoning 

Ordinance, and to take final legislative action to adopt a new 

Comprehensive Plan and Zoning Ordinance, is intended by the Parties to 

avoid any and all prejudice or limitation to the Parties’ future claims and 

defenses; and shall not be interpreted to obligate the County to make any 

specific changes or updates to the Comprehensive Plan or Zoning 

Ordinance.

Clerk’s Papers (CP) at 37-39 (emphasis added). 

The parties appended an order of dismissal without prejudice to the stipulated 

agreement. The order went beyond the standard order of dismissal and copied much of 

the language from the stipulated agreement. The order signed by the court read in part:

Pursuant to the foregoing Stipulation and under the authority of Civil 

Rule 41(A), the Court hereby: 

ORDERS that the above-entitled action is DISMISSED in its 

entirety, without prejudice and without costs as to any party; and 

ORDERS that the forgoing Stipulation preserves certain rights to the 

Parties, which shall be protected for all Parties for all purposes; and 

ORDERS that within sixty (60) days from the date of the execution 

of this Order of Dismissal, the County shall lake all necessary action(s) to 

initiate a review of: 

(1) Okanogan County’s Comprehensive Plan; and 

(2) Okanogan County Code Title 17A; and 

(3) An “ab initio” environmental review of each under Washington’s 

State Environmental Policy Act and applicable County ordinances; and

ORDERS that, no later than December 31, 2018, the County shall 

take final legislative action(s) to (a) repeal, in their entirety, the current 

Comprehensive Plan and Zoning Ordinance . . . , and (b) adopt a new 

Comprehensive Plan and new Zoning Ordinance. . . ; and

ORDERS that the County may continue to process land use permits 

and development applications under applicable County ordinances, as 
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presently in place or as may be amended through the legislative process, 

without prejudice to any associated claims of any Party.

CP at 41 (emphasis added). 

Okanogan County failed to adopt a new comprehensive plan and zoning ordinance 

by December 31, 2018. The County also failed to implement a public tracking system to 

identify received land use petitions, petition hearing dates, and related decisions as 

required under the stipulation. The county asserts that it has engaged in good faith efforts 

to enact a new plan and ordinance. 

PROCEDURE

On July 10, 2019 and as a result of Okanogan County’s failure to comply with the 

2017 agreement’s and order of dismissal’s deadlines, the Yakama Nation filed a motion, 

in this 2016 suit, to vacate the March 21, 2017 order of dismissal. The motion also 

sought to reinstate the 2016 lawsuit, procure a new order requiring compliance with the 

2017 stipulated order of dismissal, hold the county in contempt, impose sanctions against 

Okanogan County, and grant reasonable attorney fees and costs to the Nation. In its 

motion, the Yakama Nation argued that the stipulated commitments by Okanogan County 

were essential to the Nation’s earlier dismissal of this case. The Nation contended that a 

party’s failure to perform a material condition of an agreement that serves as the basis for 

an order of dismissal constitutes an extraordinary circumstance that justifies vacature of 

the order under CR 60(b)(6) and (11). 
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In response to the Yakama Nation’s motion to vacate the order of dismissal and 

for contempt, Okanogan County emphasized that, although it did not meet the deadlines 

for adopting a new comprehensive plan and zoning ordinance, the county diligently 

worked to complete the tasks. Okanogan County, in turn, argued that the Nation lacked a 

cause of action against the county since no justiciable controversy existed when the 

county continued to process revisions to its plan and ordinance. The county asked the 

superior court to deny the motion to vacate because a valid underlying cause of action is a 

condition for vacation under RCW 4.72.050. 

In a declaration opposing the motion to vacate, Perry Huston, former director of 

the Okanogan County Office of Planning and Development, conceded that the county 

failed to meet the December 31, 2018 deadline, but he averred the county continued to 

finish the tasks required in the stipulation agreement. Huston concluded that Okanogan 

County worked “as quickly as reasonably possible.” CP at 104. The declaration is long 

on the steps taken by Okanogan County, but does not explain why the county could not 

have completed individual steps quicker. Huston avowed that the county kept the 

Yakama Nation informed of its progress in adopting a new comprehensive plan and 

zoning ordinance. 

In his declaration, Perry Huston stated that Okanogan County anticipated adopting 

the new comprehensive plan at the end of 2019 or early 2020. The adoption of the new 

zoning ordinance would follow shortly thereafter. Okanogan County still has not adopted 
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a new ordinance or plan. 

At the conclusion of an August 12, 2019 hearing, the trial court denied the 

Yakama Nation’s CR 60 motion to vacate the 2017 order of dismissal. The court 

observed that, rather than earlier staying the action, the Yakama Nation chose to dismiss 

the case. The court emphasized that the order of dismissal contained no language 

reserving the right to enforce its terms by vacating the dismissal. The trial court reasoned 

that the Nation could institute a separate lawsuit to gain relief for any alleged violation of 

the 2017 agreement. 

The Yakama Nation filed a motion for reconsideration. The Nation argued that 

the trial court retained “jurisdiction” to enforce settlement terms and the terms of its own 

orders despite an order of dismissal. In response, Okanogan County repeated its 

contention that the Yakama Nation failed to show a meritorious underlying cause of 

action as demanded under CR 60 and RCW 4.72.050 because no “justiciable” dispute 

existed between the parties. 

The trial court entertained argument on the motion for reconsideration. At the 

conclusion of oral argument, the trial court denied the motion for reconsideration because 

the 2017 order of dismissal precluded further proceedings within the same suit. The 

court commented that it possessed jurisdiction, but agreed with Okanogan County’s 

position that the Nation presented no justiciable dispute because the county continued to 

work toward adoption of new comprehensive plan and zoning ordinance. 
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LAW AND ANALYSIS

On appeal, the Yakama Nation repeats its contention that the superior court should 

have vacated the 2017 order of dismissal and enforced the substantive portions of the 

dismissal order. In turn, Okanogan County maintains that the Nation possesses no valid 

cause of action, a condition precedent to vacation of the order. The county conflates this 

argument with the contention that it has not violated the March 2017 agreement and order 

by failing to adopt a new comprehensive plan and a zoning ordinance by December 31, 

2018, because the county has worked in good faith to complete both. Okanogan County 

also asks this court to decline review of the Nation’s appeal because the Nation failed to 

assign error to the trial court’s ruling that no justiciable dispute lay before the court. 

Preservation of Error

We first analyze whether we should address the substance of the Yakama Nation’s 

contention that the superior court should have vacated the 2017 order of dismissal. In its 

appeal brief, the Yakama Nation penned one assignment of error: 

The Superior Court erred in entering the order of August 12, 2019, 

denying the Yakama Nation’s Motion to Vacate Order of Dismissal, 

entered on March 21, 2017.

Br. of Appellant at 5. In turn, the Nation framed the sole issue on appeal as:

The Superior Court issued an Order of Dismissal incorporating the 

material terms of a stipulated settlement agreement between the Yakama 

Nation and Okanogan County. Okanogan County violated the terms of the 

Order of Dismissal and the associated settlement agreement. Does a court 
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retain jurisdiction to enforce its own orders after dismissal when the terms 

of the order are unquestionably violated? 

Br. of Appellant at 5 (emphasis added). 

Okanogan County contends the primary, if not sole, issue on appeal is whether a 

justiciable issue between the parties exists. The county asserts that the Yakama Nation’s 

framing of the issue as one of jurisdiction does not raise an assignment of error with 

regard to justiciability, particularly when the superior court ruled that it held subject 

matter jurisdiction to address the motion to vacate. The county maintains that the Nation 

failed to comply with RAP 10.3, which requires an assignment of error for each alleged 

mistake of the trial court. 

RAP 10.3 declares, in relevant part:

(a) Brief of Appellant or Petitioner. The brief of the appellant or 

petitioner should contain under appropriate headings and in the order here 

indicated:

. . . .

(4) Assignments of Error. A separate concise statement of each error 

a party contends was made by the trial court, together with the issues 

pertaining to the assignments of error.

We decline to dismiss the Yakama Nation’s appeal based on RAP 10.3(a)(4).

We construe the rules of appellate procedures liberally to promote justice and 

facilitate the decision of cases on the merits. RAP 1.2(a); State v. Olson, 126 Wn.2d 315, 

318, 893 P.2d 629 (1995); State v. Turner, 156 Wn. App. 707, 711, 235 P.3d 806 (2010). 

We promote substance over form. State v. Olson, 126 Wn.2d 315, 318. When the nature 
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of the appeal is clear and when the parties submit argument to the relevant issues in the 

body of the brief so that the respondent suffers no prejudice, this court should exercise its 

discretion to consider the merits of the case or issue. State v. Olson, 126 Wn.2d 315, 318

(1995); State v. Turner, 156 Wn. App. 707, 711 (2010). 

The briefing of the parties addresses the critical issues of this appeal and the 

Yakama Nation’s contentions with regard to those issues. The Nation contends that it 

can enforce the 2017 stipulated agreement and the order of dismissal. The Yakama 

Nation further argues that the trial court continued to possess authority to enforce the 

terms of the order of dismissal, despite the language in the order dismissing the suit 

without prejudice. These contentions relate to the Nation’s assignment of error that the 

court erred when refusing to grant the Nation’s motion to vacate. 

The Nation framed the issue on appeal as one of jurisdiction, although the trial 

court based its decision, in part, on justiciability. Nevertheless, as we examine later, the 

Washington Supreme Court has often confused or conflated the two concepts and 

declared that a court lacks jurisdiction unless the parties present a justiciable issue. 

Washington Education Association v. Washington State Public Disclosure Commission,

150 Wn.2d 612, 622, 80 P.3d 608 (2003); High Tide Seafoods v. State, 106 Wn.2d 695, 

702, 725 P.2d 411 (1986); Alim v. City of Seattle, 14 Wn. App. 2d 838, 847-50, 474 P.3d 

589 (2020). The Yakama Nation’s confusing of justiciability with jurisdiction has 
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harmed Okanogan County none. The county has understood and fully responded to the 

contentions of the Nation. 

Justiciable Dispute

The trial court, at least in response to the Yakama Nation’s motion for 

reconsideration, ruled that no justiciable dispute lay before it. The court based the 

absence of justiciability on the fact that the Nation could not sustain a cause of action 

against Okanogan County because the county continued to work toward the adoption of a 

comprehensive plan and a zoning ordinance. Presumably, based on this theory, the trial 

court would also dismiss any separate action brought by the Yakama Nation to enforce 

the March 2017 agreement. In turn, Okanogan County, on appeal, devotes much of its 

brief in support of affirming the trial court’s ruling that no justiciable controversy existed 

before the trial court because the county is in the midst of revising its comprehensive plan 

and zoning ordinance. The county characterizes the Yakama Nation’s motion to vacate 

as an interlocutory challenge to its governmental process. 

Okanogan County cites Save Our Scenic Area v. Skamania County, 183 Wn.2d 

455, 352 P.3d 177 (2015) and State ex rel. Friend & Rikalo Contractor v. Grays Harbor 

County, 122 Wn.2d 244, 857 P.2d 1039 (1993) for the proposition that one cannot 

challenge a government entity’s processing of ordinances and plans until a final adoption 

of the plan or ordinance. Those cases support the proposition for which the county cites 

them. Nevertheless, none of the decisions address the question pending before this court. 
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In the cited decisions, none of the government entities had entered a contract agreeing to 

adopt a comprehensive plan or a zoning ordinance by a definite deadline. In the cited 

cases, no superior court had ordered the government entity to adopt a comprehensive plan 

or zoning ordinance by a certain date. Okanogan County presents no decision that 

concludes no justiciable issue exists when a party seeks to enforce an agreement or a 

court order, under which a municipality agreed to adopt a comprehensive plan or an 

ordinance by an established deadline. 

The plaintiff must present the court a justiciable claim. A justiciable controversy

means (1) one presenting an actual, present, and existing dispute, or the mature seeds of 

one, as distinguished from a possible, dormant, hypothetical, speculative, or moot 

disagreement, (2) between parties having genuine and opposing interests, (3) involving 

interests that are direct and substantial, rather than potential, theoretical, abstract, or 

academic, and (4) of which a judicial determination will be final and conclusive. 

Diversified Industries Development Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 

(1973); Alim v. City of Seattle, 14 Wn. App. 2d 838, 847 (2020). A current dispute exists 

between Okanogan County and the Yakama Nation as to whether the Nation may gain 

relief because of the county’s failure to abide by the 2017 agreement and order of 

dismissal and as to whether the Nation may vacate the order of dismissal without 

prejudice. Okanogan County and the Yakama Nation have genuine, direct, and opposing 

interests. The superior court can grant a conclusive ruling regardless of whether 
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Okanogan County continues to work toward adopting a comprehensive plan and zoning 

ordinance. 

The superior court need not have employed the doctrine of justiciability to issue its

second ruling that Okanogan County’s continued work on a comprehensive plan and 

zoning ordinance precluded vacation of the 2017 order of dismissal. We view the ruling 

as one that denied the Yakama Nation’s motion to vacate the order of dismissal because 

the Nation lacked a viable cause of action on the merits against Okanogan County. We 

now proceed to decide whether a party, who reaches an agreement with a county for the 

adoption of a comprehensive plan or zoning ordinance by a certain deadline, may enforce 

the agreement if and when the county fails to adopt the plan and ordinance by the due 

date. We also proceed now to decide whether a party may enforce a court order that 

compels a municipal corporation to adopt a comprehensive plan and zoning code by an 

established date. We later decide whether the Nation may enforce its rights in this 2016 

lawsuit when the superior court earlier dismissed the suit without prejudice, or, 

conversely, whether it must file a second suit. 

Breach of Contract and Violation of Court Order

In the March 20, 2017 agreement between the Yakama Nation and Okanogan 

County, the county agreed to, no later than December 31, 2018, take final legislative 

action to repeal the current comprehensive plan and zoning ordinance and adopt a new 

comprehensive plan and zoning ordinance. This duty, however, did not obligate the 
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county to make any specific changes to the present plan or ordinance. The undisputed 

facts establish that Okanogan County breached the agreement. To date, the county has 

yet to adopt a new comprehensive plan and zoning ordinance. 

Okanogan County emphasizes the testimony of its former planning official Perry 

Huston that the county has engaged in ongoing and serious efforts to repeal and replace 

the comprehensive plan and zoning code. The county may thereby impliedly argue that 

diligent efforts excused its nonperformance of the agreement terms. Nevertheless, 

Okanogan County does not expressly forward this argument, provide legal authority in 

support of the argument, or analyze the facts in light of court decisions. Nor does the 

county argue that it lacked authority to enter into the 2017 agreement. 

Although Okanogan County does not argue the point, we recognize that a county 

may not contract away the prerogative to render decisions on the content of county-wide 

planning policies and comprehensive plans. City of Burien v. Central Puget Sound 

Growth Management Hearings Board, 113 Wn. App. 375, 388 n.13, 53 P.3d 1028 

(2002). This rule follows the general principle that no municipal government has the 

power to make contracts that control or limit it in the exercise of its legislative powers 

and duties, including adoption of planning and zoning rules. Neeman v. Town of 

Warwick, 184 A.D.3d 567, 570, 125 N.Y.S.3d 143 (2020); Wallingford v. Moab City, 

2020 UT App 12, 459 P.3d 1039, 1046, cert. denied, 466 P.3d 1073 (Utah 2020). The 

test to determine if the municipality lacks authority to enter a contract is whether the 
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agreement commits the municipality to a specific course of action with respect to the 

legislative action. Neeman v. Town of Warwick, 184 A.D.3d 567, 570 (2020). 

The agreement between Okanogan County and the Yakama Nation did not 

obligate the county to any particular content in its new comprehensive plan or zoning 

ordinance. Instead, the county reserved the right to exercise its discretion in adopting the 

plan or ordinance. Thus, the 2017 agreement did not conflict with any restriction on a 

county’s prerogative in adopting the contents of planning and zoning polices. 

We also note that, while the March 2017 written agreement does not expressly 

provide that time is of the essence, a delay in performance may be adjudged not to be a 

material breach depending on the surrounding circumstances. Cartozian & Sons, Inc. v. 

Ostruske-Murphy, Inc., 64 Wn.2d 1, 5-6, 390 P.2d 548 (1964). But Okanogan County 

does not contend such circumstances exist here. The county has fallen two years behind 

schedule and has not even complied with the schedule that its former official planner set

in his declaration opposing the Yakama Nation’s motion to vacate. We observe that the 

county possessed intimate knowledge of the process of and time required for preparing 

and passing a comprehensive plan and zoning code when it entered the 2017 agreement. 

The county could have refused to enter the agreement if it did not consider the deadline 

realistic. 

Throughout its briefing, Okanogan County ignores that, in addition to its signing 

of an agreement in 2017, the superior court entered an order demanding that the county 
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adopt a comprehensive plan and zoning ordinance by December 31, 2018. Yakama 

Nation’s case does not simply concern the breach of a contract, but also violation of a 

court order. During oral argument, Okanogan County conceded that it has violated the 

order. Wash. Court of Appeals oral argument, Confederated Tribes and Bands of the 

Yakama Nation v. Okanogan County, No. 37129-8-III (Dec. 9, 2020), at 16 min., 02 sec. 

to 16 min., 10 sec. (on file with court). The county also conceded that no language in the 

order excused its breach of the deadline if it works with due diligence. Wash. Court of 

Appeals oral argument, supra, at 16 min., 35 sec. to 17 min., 10 sec. 

We expect municipal corporations to obey court orders, just as we expect private 

citizens to comply with court orders. If Okanogan County deemed it needed more time to 

meet the December 31, 2018 deadline, the county could have and should have requested, 

before the end of 2018, the court to modify the order. Instead, Okanogan County has 

flouted the order. Even assuming Okanogan County lacked authority to enter the 2017 

agreement, no decision suggests that a party cannot enforce a court order that compels a 

government entity to adopt a land use plan or ordinance by a firm date. 

Subject Matter Jurisdiction 

We next consider whether a trial court may grant a motion vacating an order of 

dismissal after the plaintiff voluntarily dismissed lawsuit claims without prejudice. The 

Yakama Nation phrases this question in terms of whether the trial court retained 

jurisdiction to enforce the terms of the order of dismissal. Since the Nation sued in 
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Okanogan County Superior Court and Okanogan County’s principal place of business is 

Okanogan County, the court possessed personal jurisdiction over both parties. Thus, the 

Nation must refer to subject matter jurisdiction. 

We conclude that the question of whether the superior court can enforce the 2017 

order of dismissal does not implicate subject matter jurisdiction of the court. Recent 

decisions of the United States Supreme Court, the Evergreen State Supreme Court, and 

this court have recognized confusion resulting from earlier courts’ use of the word 

“jurisdiction” or the phrase “subject matter jurisdiction” to extend to concepts other than 

subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 

90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); Marley v. Department of Labor & 

Industries, 125 Wn.2d 533, 539, 886 P.2d 189 (1994); Cole v. Harveyland, LLC, 163 Wn. 

App. 199, 208, 258 P.3d 70 (2011). In other settings, the United States Supreme Court 

has employed colorful language about “profligate” courts misusing the concept of subject 

matter jurisdiction and engaging in “‘drive-by jurisdictional rulings’” about subject 

matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 510-11, 126 S. Ct. 1235, 163 

L. Ed. 2d 1097 (2006). Subject matter jurisdiction simply refers to the court, in which a 

party files a suit or a motion, being the correct court for the type of suit or character of a 

motion. The critical concept in determining whether a court has subject matter 

jurisdiction is the “type of controversy.” Marley v. Department of Labor & Industries, 

125 Wn.2d at 539; In re Marriage of McDermott, 175 Wn. App. 467, 480-81, 307 P.3d 
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717 (2013). If the type of controversy is within the subject matter jurisdiction, then all 

other defects or errors go to something other than subject matter jurisdiction. Marley v. 

Department of Labor & Industries, 125 Wn.2d at 539; In re Estate of Reugh, 10 Wn. 

App. 2d 20, 48, 447 P.3d 544 (2019), review denied, 194 Wn.2d 1018, 455 P.3d 128 

(2020). 

The Yakama Nation seeks to enforce a settlement agreement confirmed by a court 

order entered by the Okanogan County Superior Court. In order to enforce the 

settlement, the Nation filed a motion to vacate the order of dismissal without prejudice. 

The pending motion is the type of motion to be heard by the county superior court. Thus, 

the Okanogan County Superior Court held jurisdiction. The original order of dismissal 

had been entered by the superior court. Whether the law authorizes the trial court to 

vacate an order of dismissal without prejudice in order to enforce its terms is a distinct 

question not implicating jurisdiction. 

Motion to Vacate Order of Dismissal

Whether the superior court should have granted the motion to vacate involves two 

discrete questions. First, may a court vacate a voluntary order of dismissal? Second, has 

the Yakama Nation presented sufficient grounds for vacature under CR 60? We conflate 

the two questions. We answer both in the affirmative. 

The Yakama Nation relies on subsections 6 and 11 of CR 60(b) when asking to 

vacate the order of dismissal without prejudice. CR 60 reads, in relevant part:
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(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered 

Evidence; Fraud; etc. On motion and upon such terms as are just, the court 

may relieve a party or the party’s legal representative from a final 

judgment, order, or proceeding for the following reasons: 

. . . .

(6) it is no longer equitable that the judgment should have 

prospective application; 

. . .; or 

(11) Any other reason justifying relief from the operation of the 

judgment.

(Boldface omitted.)

In turn, Okanogan County principally relies on RCW 4.72.050, when arguing that 

the trial court correctly denied the motion to vacate because the Yakama Nation lacked a 

meritorious claim against the county. The statute reads in part:

The judgment shall not be vacated on motion or petition until it is 

adjudged that there is a valid defense to the action in which the judgment is 

rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of 

action. 

We have already ruled that the Nation possess a valid cause of action. 

A proceeding to vacate a default judgment is equitable in character and relief is to 

be afforded in accordance with equitable principles. Griggs v. Averbeck Realty, Inc., 92 

Wn.2d 576, 581, 599 P.2d 1289 (1979). The trial court should exercise its authority 

liberally, as well as equitably, to the end that substantial rights be preserved and justice 

between the parties be fairly and judiciously done. Griggs v. Averbeck Realty, Inc., 92 

Wn.2d at 582; White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968).
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We review a trial court’s ruling under CR 60(b) for an abuse of discretion. Haller 

v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). A trial court abuses its discretion 

when applying the wrong legal standard. Gilmore v. Jefferson County Public 

Transportation Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018). Here the 

superior court applied the wrong legal standard when ruling that no justiciable issue was 

before it and, as concluded later, when ruling that the Yakama Nation needed to file a 

separate action to enforce the 2017 settlement agreement and court order. We agree with 

the Yakama Nation that the circumstances of Okanogan County’s breach of the 

settlement agreement and defying the 2017 court order call for the application of equity 

and present other justifiable reasons for vacating, under CR 60(b)(6) and (11), the order 

of dismissal without prejudice. 

A party may vacate an order of dismissal in order to enforce the terms of a 

settlement agreement or in order to enforce conditions of the order of dismissal. Condon 

v. Condon, 177 Wn.2d 150, 157, 298 P.3d 86 (2013). A court retains the inherent 

authority to enforce its own orders. Condon v. Condon, 177 Wn.2d 150, 160. The courts 

prefer that the party seek to vacate the order in the same litigation rather than subjecting

the courts to separate actions in order to enforce the settlement, on which the parties 

based the dismissal. Condon v. Condon, 177 Wn.2d 150, 158. Jurisdiction may exist 

following dismissal of a settlement in order to protect the court’s proceedings and 

vindicate the court’s authority. Condon v. Condon, 177 Wn.2d at 158. 
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In Condon v. Condon, the Washington Supreme Court followed the United States 

Supreme Court’s enunciation of federal law with regard to vacations of orders of 

dismissal. In Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 

381, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994), the Court wrote:

[I]f the parties’ obligation to comply with the terms of the settlement 

agreement had been made part of the order of dismissal—either by separate 

provision (such as a provision “retaining jurisdiction” over the settlement 

agreement) or by incorporating the terms of the settlement agreement in the 

order. In that event, a breach of the agreement would be a violation of the 

order, and ancillary jurisdiction to enforce the agreement would therefore 

exist.

In Condon v. Condon, 177 Wn.2d 150 (2013), the court addressed whether the 

trial court retained jurisdiction to enforce a settlement after a stipulated dismissal of 

claims. Vanessa Condon and Fely Condon agreed, in open court, to terms which would 

resolve Vanessa’s claims against Fely. The parties never placed the terms in writing, 

however. They executed a stipulated settlement and order of dismissal, and the trial court 

entered an order dismissing Vanessa’s claims against Fely with prejudice. Fely sent 

Vanessa a receipt and release of claims form which Vanessa refused to sign. Fely 

brought a post-dismissal motion to enforce the settlement and require the signing of the 

receipt and release. Vanessa responded that she never agreed to sign a release as part of 

the settlement and, further, the order of dismissal with prejudice ended all litigation. The 

trial court agreed with Fely that a release should be required as part of the settlement. It 

entered an order deeming the release signed. 
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On review, in Condon v. Condon, Vanessa Condon argued to the Supreme Court 

that a dismissal with prejudice ends all litigation and removes a court’s jurisdiction over 

the matter. Our high court acknowledged that “a voluntary dismissal under CR 41(a)(1) 

generally divests a court of jurisdiction to decide a case on the merits.” Condon v. 

Condon, 177 Wn.2d at 158 (quoting Hawk v. Branjes, 97 Wn. App. 776, 782, 986 P.2d 

841 (1999)). The court also observed that the “best practice” is for a trial court to 

“expressly retain jurisdiction for purposes of enforcement or to enter a conditional or 

delayed dismissal.” Condon v. Condon, 177 Wn.2d at 161. In circumstances when that 

does not occur, however, a party can move to vacate the original dismissal under 

appropriate grounds and bring a motion to reinstate and enforce the settlement. In the 

alternative, the party may file a separate action. 

The Yakama Nation may have improved its legal position by inserting language 

into the 2017 order of dismissal that the court retained authority to enforce the terms of 

the order. Nevertheless, because of the detailed and extensive provisions of the order that 

imposed duties on Okanogan County, we conclude, based on precedent, that the court 

may vacate the dismissal order for purposes of enforcing the order’s provision and the 

parties’ contract. 

Other Washington decisions support our ruling. In Vaughn v. Chung, 119 Wn.2d 

273, 283, 830 P.2d 668 (1992), our state high court held that a trial court retained 

jurisdiction to consider a motion to vacate an involuntary order of dismissal, without 
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prejudice, for want of prosecution under CR 41(b)(2). The court observed that case law 

from other states as well as federal case law supported this conclusion. 

In re Marriage of Thurston, 92 Wn. App. 494, 963 P.2d 947 (1998) dealt with the 

vacation of a decree. Former spouses, Martyna Mandel and Robert Thurston, each 

appealed the trial court’s entry of a 1995 decree characterizing and dividing their 

property. The trial court entered the 1995 decree after partially vacating an earlier 1989 

decree. The 1989 decree was based on a settlement between Mandel and Thurston that 

had been read into the record. Pursuant to the settlement, Mandel was to receive two 

units of a limited partnership. Mandel moved to vacate the decree under CR 60(b)(11) 

because she never received the partnership units. The trial court granted the motion to 

vacate and thereafter entered a new decree. 

On appeal, in In re Marriage of Thurston, this court considered whether 

extraordinary circumstances existed, under CR 60(b)(11), to vacate the 1989 decree. 

This court observed that, at the time of the 1989 decree, the trial court and counsel for 

each side believed that the transfer was a requirement for settlement, and, absent transfer 

of the units, settlement would not occur. Accordingly, the condition was a material 

condition of the parties’ settlement. Thus, the trial court did not err by setting aside the 

decree under CR 60(b) because of the extraordinary circumstances of a material condition 

of the parties’ decree failing. 
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Finally, Keeling v. Sheet Metal Workers International Association, Local Union 

162, 937 F.2d 408 (9th Cir. 1991), supports the position that the trial court should vacate 

an order of dismissal, under CR 60(b)(6), when one party breaches an agreement on 

which the parties based the dismissal. 

The Yakama Nation wished to challenge the current comprehensive plan and 

zoning ordinance of Okanogan County when it filed its 2016 suit. The Nation would not 

have dismissed its suit without the county agreeing to vacate the plan and ordinance and 

adopt a new plan and ordinance, with input from the Nation. Compliance with the court 

order was a condition to dismissing the suit. 

Okanogan County argues that the Yakama Nation’s cited authority pertains to 

motions to vacate default judgments, not motions to vacate voluntary dismissals. We 

disagree. The decisions we review involved orders of dismissal. Also, Okanogan County 

cites no case wherein the appeals court ruled that the trial court lacked authority to 

enforce substantive terms of an order of dismissal without prejudice when one of the 

parties to the order breaches its terms. 

Cases relied on by the trial court include Wachovia SBA Lending, Inc. v. Kraft, 

165 Wn.2d 481, 200 P.3d 683 (2009) and State v. Taylor, 150 Wn.2d 599, 80 P.3d 605 

(2003). In Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 492, our high court 

concluded that a voluntary dismissal is not a final judgment as contemplated under RCW 

4.84.330, a statute that affords reasonable attorney fees and costs to a party when a 
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contract allows the award. The Supreme Court reasoned, that, unlike a final judgment, a

voluntary dismissal leaves the parties as if the action had never been brought. 

In State v. Taylor, 150 Wn.2d 599, 602 (2003), the Washington Supreme Court 

considered whether dismissal of a criminal prosecution without prejudice is a final order 

for purposes of an appeal. The Taylor court concluded that an order of dismissal without 

prejudice does not fit within this court’s definition of “final judgment.” The court 

reasoned that the order of dismissal does not resolve legal and substantive issues. The 

dismissal without prejudice left the parties in the same condition as before the 

prosecution began. 

We might follow the teaching of State v. Taylor and Wachovia SBA Lending, Inc. 

v. Kraft but for the many cases that allow vacation of an order of dismissal based on one 

party’s failure to comply with an agreement or court order. In contrast to the cited 

decisions, the settlement agreement between the Nation and Okanogan County imposed 

obligations on the county. The order of dismissal did not leave the parties in the same 

position as before litigation was initiated. An order of dismissal does not ascend to the 

lofty position of the Ark of the Covenant that cannot be touched or function as the law of 

the Medes and Persians that cannot be altered. 

Because Okanogan County violated the terms of a court order, the trial court could 

have and should have vindicated its authority and required compliance with its lawful 
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order by vacating the portion of the order dismissing lawsuit claims. Vacating the order 

promotes judicial economy over requiring the Yakama Nation to file a second suit. 

As part of its appellate court presentation, the Yakama Nation contends that, with 

a vacation of the 2017 order of dismissal, it may proceed with the claims it asserted in its 

2016 complaint in addition to proceeding to enforce the order of dismissal. We question 

whether the Nation can proceed with the causes of action as stated in its complaint. The 

complaint alleges that the current comprehensive plan and zoning ordinance fails to meet 

the standards of SEPA, GMA, and PEA. The settlement agreement, however, suggests 

that the Nation relinquished its claims that the current plan and ordinance violated the 

law, in exchange for Okanogan County agreeing to adopt a new plan and ordinance. The 

agreement read that the dismissal was without prejudice to any “future claims or defenses 

by any party.” CP at 205. The agreement did not reserve the right to challenge the 

current comprehensive plan and zoning ordinance of Okanogan County. An agreement 

that only expressly reserves future claims impliedly waives past or pending claims. 

The Yakama Nation’s release of any rights to challenge the pending 

comprehensive plan and zoning ordinance may lack any practical impact on the Nation’s 

rights. The Nation reserved future rights such that, if any future comprehensive plan and 

zoning ordinance violates the SEPA, GMA, or PEA, the Nation may still litigate its rights 

under the Acts. Since the parties did not brief the extent to which the 2017 stipulated 
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agreement and order of dismissal precludes past claims of the Yakama Nation, not arising 

out of the agreement, we issue no ruling on the question. 

Attorney’s Fees

Okanogan County requests an award of reasonable attorney fees and costs on 

appeal on the basis that the Yakama Nation’s appeal is frivolous. Since we rule in favor 

of the Yakama Nation, we conclude the Nation’s appeal is not frivolous. 

CONCLUSION

We remand to the superior court to vacate the 2017 order of dismissal and to 

enforce the terms of the order. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Siddoway, A.C.J.

______________________________

Lawrence-Berrey, J.