IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
No. 71668-9- NORTHWEST HUNTER TV, LLC, a Washington limited liabilitycompany Appellant,

RIVERS WEST APPAREL, INC., a Washington corporation, Respondent. UNPUBLISHED OPINION FILED: June 30, 2014 x». comVerellen, J. —A trial court has the authority to revise a partial summary 

### judgment at any time before the entry of finaljudgment as to all claims and all parties, and may do so by approving a settlementthat contemplates the continued existence of a limited liability company, despite a prior partial summaryjudgmentthat the company is dissolved. A member of Northwest HunterTV, LLC (NWH) obtained a partial summary 

### judgmentthat the limited liability company be dissolved. Prior to any finaljudgment in that litigation, the parties agreed to and the trial court approved a settlement of all claims. There is some evidence that the settlement included NWH's continued existence. 

### Inthe lawsuit on appeal, Rivers West Apparel, Inc. (Rivers West) relied upon 

### that partial summaryjudgmentto argue that NWH is dissolved and therefore lacksNo. 71668-9-1/2 standing to pursue its claims against Rivers West. There is a genuine issue of material fact whether the approved settlement included NWH's continued existence rather than its dissolution. Because there is a genuine issue ofmaterial fact, we reverse and remand to the trial court for further proceedings. FACTS In 2004, Rick Young and Sundance Magnetics, Inc. formed NWH. NWH films, edits, and produces weekly television shows and videos for hunting and outdoor enthusiasts. Young owned 35 percent of NWH and Sundance Magnetics owned 65 percent. Patrick Boyer is both the president of Sundance Magnetics and the manager of NWH. Also in 2004, NWH entered into a contract with Rivers West that required NWH to provide television advertisements from September 2004 through September 2007. Under the contract, Rivers West would pay NWH $15,000 in November 2004, $15,000 in April2005, $30,000 in November 2005, and $30,000 in November 2006. On January 10, 2006, Young informed Boyerthat he no longer intended to perform certain video editing, video production, and hosting ofthe show that he had 

### previously agreed to perform. Young also stated that he intended to resign from NWH and effectuate a dissolution ofthe limited liabilitycompany unless NWH agreed to his demands. The next day, NWH sued Young for alleged misconduct and other 

### claims (the Young lawsuit). Young counterclaimed and filed a third party complaint against Boyer, his wife, and other companies owned by the Boyers.No. 71668-9-1/3
In June 2006, NWH sued Rivers West alleging breach ofthe advertising contract (the Rivers West lawsuit), which is the lawsuit before us in this appeal. Almost a year later, in May 2007, Young tendered notice to NWH of his resignation and withdrawal as a member. In his letter, Young recited that the operating agreement requires that the limited liabilitycompany must be dissolved and terminated with his resignation. He requested that winding up commence pursuantto the operating agreement. Young filed a motion for partial summaryjudgment. InAugust 2007, the trial court granted partial summaryjudgmentfor Young, ordering that NWH is dissolved 

### per the operating agreement and that winding up must begin "immediately."1 In December 2007, the trial court inthe Young lawsuit entered an order setting timeline and deadlines for the sale of assets as part ofthe winding up of NWH. Per the order, ifthe assets were not sold by January 27, 2008, they would be publicly auctioned off by March 27, 2008. In February 2008, Boyer signed a bill of sale for his purchase of all ofthe assets of NWH, except cash and accounts receivable. Then the parties to the Young lawsuit reached a settlement. In May 2008, Young moved to enter a stipulation and settlement agreement between Young and NWH. InJuly 2008, the trial court approved the stipulation and settlement agreement and entered the following dismissal with prejudice in the Young lawsuit: ORDERED and adjudged that all causes herein including all claims, counterclaims, and third party Complaints and all related matters and claims ofwhatever kind be and the same are hereby



### 1Clerk's Papers at 80.No. 71668-9-1/4
dismissed with prejudice and without attorney fees, reasonable or 

### statutory, orcosts to any party.121 The record contains a one-page settlement agreement that includes a typewritten list of items and several handwritten interlineations. Although the exact terms ofthe parties' settlement agreement are not clear, in a declaration filed by Boyer inthe Rivers West lawsuit, he explained that NWH bought out Young's membership interest in NWH, leaving Sundance Magnetics as the only member. Boyer also stated that the parties intended that NWH continue to conduct business afterthe settlement 

### agreement, that NWH did continue to do business, and that dissolution was no longer required or demanded. 

### Four and one halfyears later, inJanuary 2013, Rivers West moved for 

### summaryjudgment against NWH in the Rivers West lawsuit. Itargued that NWH
was dissolved inthe Young lawsuit and, as a result, had no standing to pursue its 

### claim against Rivers West. It also argued that NWH could not perform its part of the contract with Rivers West because ithad no legal authority to conduct business while 

### winding up. NWH opposed summaryjudgment, arguing that itwas not dissolved and could pursue the claim. 

### In a decision granting defendant's motion for summaryjudgment, the trial court explained thatthe partial summaryjudgment order inthe Young lawsuit was 

### sufficiently final to collaterallyestop NWH from arguing that it was not dissolved. The trial court concluded that, as a dissolved company, NWHwas required to proceed with collection activities within a reasonable time and that "seven years is not a

2 Id. at 125.No. 71668-9-1/5


### reasonable time for winding up a LLC."3 The trial court then entered an order granting summaryjudgment to Rivers West. The trial court denied NWH's motion reconsideration. NWH appeals. DISCUSSION NWH argues that the trial court erred when itgranted Rivers West's motion for summaryjudgment. We agree. 

### We review a superior court's summaryjudgment order de novo.4 Summary judgment is appropriate only ifthe pleadings, affidavits, depositions, and admissions on file demonstrate the absence ofany genuine issues ofmaterial fact, and the 

### moving party is entitled tojudgment as a matter oflaw.5 "A material fact is one upon 

### which the outcome of the litigation depends in whole or inpart."6 Absent a proper CR 54(b) certification of finality, "an order which adjudicates fewer than all claims or the rights and liabilities offewer than all parties is subjectto revision at any time before entry of final judgment as to all claims and the rights and 

### liabilities of all parties."7 Rivers West acknowledges that a trial court can revisit a partial summaryjudgment ifproperly raised before the trial court. Inaddition to a motion to vacate or for reconsideration, a trial court has the flexibility to approve a

3 Id at 248. 4Torqerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P.3d 318 (2009).5CR 56(c). 6Atherton Condo. Apartment-Owners Ass'n Bd. ofDirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). 7Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 300, 840 P.2d 860 (1992).No. 71668-9-1/6 

### settlementthat deals with all claims between the parties.8 Rivers West provides no compelling authority that a trial court is precluded from approving a settlementthat contemplates that a business entity is not dissolved, especially when the settlement is arrived at and approved prior to any finaljudgment. Rivers West relies upon the Young lawsuit partial summaryjudgmentthat NWHwas dissolved, but that orderwas subject to revision at any time before the entry of finaljudgment. Taken in the light most favorable to NWH, the settlement agreement arguably incorporated an agreement between Young and Sundance Magnetics that NWH would continue in business and not be dissolved. Boyer's declaration expressly recites that continuance of NWH was part ofthe settlement agreed to by the parties and approved by the trial court. Rivers West argues that Boyer's declaration is self-serving, but he was the manager of NWH and the president of Sundance Magnetics at the time the settlement was reached. Ifthe settlement agreement allowed NWH to continue its operations, notwithstanding the prior partial summaryjudgment of dissolution, then the trial court's approval ofthe settlement necessarily revises the partial summaryjudgment, which would no longer 

### be a final and binding adjudication.9 Because a genuine issue of material fact exists

8See generally Shepherd v. Cont'l Bank, 28 Wn. App. 346, 350, 622 P.2d 1310 (1981) (a CR 41(a)(1)(A) voluntary dismissal pursuant to agreement ofthe parties constitutes a decision adjudicating all the claims, rights, and liabilities of all the parties). 9See Washburn, 120 Wn.2d at 300 ("Absent a proper certification, an order 

### which adjudicates fewer than all claims or the rights and liabilities of fewer than all parties is subject to revision at any time before entry of finaljudgment as to allclaims 

### and the rights and liabilities of all parties."); Simmons v. Brier Bros. Co., 258 U.S. 82, 42 S. Ct. 196, 66 L. Ed. 475 (1922) (a court has complete power over interlocutoryNo. 71668-9-1/7

as to whether the approved settlement included NWH's continued existence, summaryjudgment infavor of Rivers West was improper. Rivers West argues that NWH is collaterally estopped from arguing that itwas not dissolved under the partial summaryjudgment order because the order resulted in a final adjudication on the merits. But under Cunningham v. State, whether a partial summaryjudgment order is sufficiently final for purposes ofcollateral estoppel,
even after a settlement, "turns on the circumstances ofeach case."10 Here, under the facts ofthis case, there is a genuine issue ofmaterial fact as to whether the approved settlement included NWH's continued existence. No such issue existed in Cunningham. Because it is unresolved whether the partial summaryjudgment ordering dissolution was modified by the trial court's approval ofthe settlement, collateral estoppel does not bar NWH's argument. Rivers West also contends that summaryjudgment was proper because NWH automatically dissolved under its operating agreement. But according to NWH's operating agreement, the members of NWH may elect to continue the business despite the occurrence of an eventtriggering dissolution. The operating agreement states that NWH "shall dissolve and wind up its affairs, upon the first to occur ofthe following events, unless the Members unanimously agree to continue the 

### business."u Although there is evidence in the record that Young resigned and NWH signed a bill ofsale ofmost of its assets, both events potentially triggering orders made therein and has authority to revise them when it is "consonant with equity" to do so). 

### 10 61 Wn. App. 562, 567-68, 811 P.2d 225 (1991). 11 Clerk's Papers at 52 (emphasis added).No. 71668-9-1/8 dissolution, Boyer's declaration states that the parties agreed to continue the 

### business. Therefore, taking this evidence inthe lightmostfavorable to NWH, the 

### company was not automatically dissolved under its operating agreement. 

### We do not rely upon NWH's argumentthat a dismissal with prejudice 

### automaticallyrenders all prior proceedings a nullity. The cases relied upon byNWH 

### dealwith dismissalswithout prejudice and Land UsePetition Act appeals.12 NWH has not demonstrated that the cases itcites apply here. And NWH's "always a 

### nullity" argument isinconsistentwith Cunningham, which clearly contemplates the 

### possibilitythat even after a settlement, a partial summaryjudgmentmay be sufficientlyfinal forpurposes ofcollateral estoppel, depending on the circumstances. 

### Cunningham also rejected the argumentnow advanced byNWH that the testfor 

### determining whether ajudgmentisfinal for collateral estoppel purposes is the same as the testfor determining appealability under CR54.13 Therefore, reversal is not warranted on either ofthese bases.



### 12 See Beckmanv. Wilcox, 96 Wn.App. 355, 359, 979 P.2d 890 (1999)(citing 

### federalcase law that a voluntary dismissal renders all proceedings a nullity but 

### holding thatattorneyfees may beavailableto aparty afteravoluntary dismissal without prejudice depending upon the language ofthe statute authorizing attorney 

### fees); Wachovia SBA Lending v. Kraft, 138 Wn. App. 854, 862, 158 P.3d 1271 (2007) 

### (attorneyfeesnotavailable underRCW4.84.330 because voluntarydismissal withoutprejudice is not a "finaljudgment" becauseplaintifffree tofile a new action 

## againstthe defendant); Spicev. Pierce County, 149Wn. App. 461, 467, 204 P.3d 254(2009) (court could not address appellant's motion to vacate avoluntary dismissal ofa LUPA petition because petitioners failed torefile petition within 21 days 

### afterhearing examiner's decision and voluntary dismissal resulted in priorpetition becoming a nullity). 

### 13 Cunningham, 61 Wn. App. at 566 ("such a rigorous finality requirement does 

### notimplementthepurposes ofcollateral estoppel: toprotectprevailing parties from 

## relitigating issues already decided intheirfavor, and to promotejudicialeconomy").

8No. 71668-9-1/9
Ifthe parties agreed to settle the Young litigation on the basis that NWH would continue inexistence rather than be dissolved, then the trial court had the authority to approve that settlement and allow NWH to continue in existence. A genuine issue of fact exists. We reverse the trial court and remand for proceedings consistentwith this opinion.

WE CONCUR:


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