Thomas Peters, Et Ano, V.thyssentransp, Llc

• Court: Court of Appeals of Washington
• Decided: June 22, 2026
• Docket: 88441-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THOMAS and KATHERINE PETERS, No. 88441-7-I Respondents, DIVISION ONE v. UNPUBLISHED OPINION THYSSENTRANSP, LLC, a Washington Limited Liability Company

Appellant,

WPI Real Estate Services, Inc., a Washington Corporation,

Defendant.

BUI, J. — Thyssentransp, LLC (Thyssen) seeks review of the order to

disburse funds from its supersedeas bond to satisfy a judgment. The superior

court ordered payment to satisfy the judgment after determining all appeals had

been extinguished. We agree with the trial court and affirm.

FACTS

In November 2022, Thomas and Katherine Peters brought claims against

landlord Thyssentransp, LLC (Thyssen) and property manager WPI Real Estate

Services, Inc. (WPI) for violations of the Residential Landlord-Tenant Act of 1973

(RLTA) (ch. 58.18 RCW) alleging failure to timely provide the accounting and

return of deposit after they vacated their rental. Peters 1 filed a motion for

summary judgment. Thyssen responded and moved for leave to amend its

1 We refer to Thomas and Katherine Peters together as “Peters.” No. 88441-7-I/2

answer to add affirmative defenses and counterclaims. The trial court

subsequently granted summary judgment in favor of Peters and awarded

damages of twice the amount of their deposit and attorney fees and costs. The

trial court denied Thyssen’s motion to amend as “at best . . . futile,” noting “the

defense in this case is unmoored to facts or law and can only be viewed as

carried on in bad faith.”

On June 13, 2023, after motion from Peters, the trial court entered final

judgment for the principal amount of $18,200, attorney fees of $9,843.11, and

costs of $477.48 against Thyssen and dismissed WPI 2 without prejudice.

Thyssen filed a notice of appeal for all orders entered in the trial court, assigned

cause number 85354-6-I in this court. Thyssen also filed a $60,000 cash

supersedeas in the trial court pursuant to RAP 8.1. 3

Upon receipt of the notice of appeal, we inquired whether the final

judgment was an appealable order given WPI’s dismissal without prejudice,

noting “a dismissal without prejudice is generally not final and appealable until

the lawsuit may not be refiled by operation of the statute of limitations.” As a

result, we requested Thyssen file documentation demonstrating appealability or a

motion for discretionary review. Instead, Thyssen moved to modify the

commissioner’s decision. After denial of the motion to modify, Thyssen sought

review by the Washington State Supreme Court. The Supreme Court also denied

2 WPI did not answer or otherwise appear. 3 The cash bond was posted under King County Superior Court cause number 22-2-

18146-0 SEA.

2 No. 88441-7-I/3

review. We issued a certificate of finality for cause number 85354-6-I on May 10,

2024.

Shortly before the certificate of finality issued, Peters moved to dismiss

WPI with prejudice in the trial court seeking to “confirm the finality of judgment

against Thyssen and facilitate the expeditious appeal and resolution” of the suit.

When Peters could not set the matter for hearing before the original judge, they

commenced a new lawsuit against WPI and moved for dismissal pursuant to CR

41. On May 10, 2024, the trial court entered an order dismissing WPI with

prejudice.

Peters provided the order of dismissal with prejudice to counsel for

Thyssen. On May 23, Thyssen filed a notice of appeal of the June 2023 final

judgment which was assigned cause number 86729-6-I. A commissioner of this

court entered a notation ruling requesting further information as to whether the

order was now final and appealable. Peters submitted a response, asserting the

finality of the 2023 final judgment after dismissal with prejudice of the separate

lawsuit brought against WPI specifically for that purpose. After receiving this

response, we issued a notation ruling on August 7, stating “[i]t appears that the

trial court’s orders designated in the notice are now final and appealable upon

the dismissal with prejudice of the only remaining defendant WPI Real Estate

Services, Inc. in a separately filed action.” The ruling noted Thyssen, through its

“Governor” had filed a motion to voluntarily withdraw the appeal and advised “[t]o

the extent the orders designated in the notice are appealable, withdrawal of

3 No. 88441-7-I/4

review in this matter may result in a loss of Thyssen’s right to appeal from the

orders.” Thyssen was directed to obtain counsel and address appealability.

Thyssen, without counsel, stated the court had issued a certificate of

finality for the prior appeal, cause number 86729-6-I, and “returned jurisdiction to

the trial court.” Thyssen claimed to be preparing a motion for reconsideration of

the final judgment and “seeking the possibility of a trial by presenting new

evidence.” According to Thyssen, if “successful in achieving a trial in the trial

court, we will likely not pursue an appeal.”

Despite the warning given in the notation ruling, Thyssen obtained counsel

and moved for voluntary withdrawal of 86729-6-I which was granted on

December 9, 2024. The mandate issued on January 16, 2025, stating the

December ruling became the decision terminating review and the case “is

mandated to the Superior Court from which the appeal was taken for further

proceedings in accordance with the attached true copy of the decision.”

After the mandate issued, Peters filed a motion in the trial court to execute

on the cash bond posted in the King County cause number and release payment

on the judgment. Peters asserted, “[d]efendant’s right to appeal or otherwise

challenge the judgment are extinguished, and Plaintiffs may seek to satisfy their

judgment out of the appellate bond.” Over Thyssen’s objection, the trial court

found “all appeals of this matter have been extinguished and Plaintiffs are

entitled to disbursement of the appellant bond posted with the Court,” and

entered an order directing payment.

4 No. 88441-7-I/5

Thyssen appeals. 4

ANALYSIS

Thyssen attempts to revive the voluntarily dismissed appeal of the June

2023 final judgment by claiming the trial court erred in concluding all appeals had

been extinguished. Specifically, Thyssen argues: (1) the 2024 action against

WPI, filed only to secure dismissal without prejudice, should be disregarded as

void for lack of personal jurisdiction; and (2) the trial court was required to have

further proceedings as mandated by the court and to make specific findings of

fact and conclusions of law, including findings about WPI’s status as a party

under CR 54(b).

The only order on appeal is the entry of the order disbursing payment from

the bond. After filing of a supersedeas bond, the trial court may discharge the

bond “upon application of a party or on its own motion, and for good cause

shown.” RAP 8.1(g). Issuance of the mandate terminates any delay of

enforcement of a trial court decision obtained by a stay and supersedeas. RAP

8.6. A trial court’s decisions pertaining to a supersedeas bond are reviewed for

abuse of discretion. See IBEW Health & Welfare Trust of Sw. Wash. v.

4After filing a notice of appeal for the order directing payment, Thyssen subsequently

moved to amend the notice of appeal for review of the 2023 orders entered by the trial court, including the orders granting summary judgment, attorney fees, Peters’ motion to dismiss WPI, and the final judgment. A commissioner of this court denied the motion: those orders became final at the entry of judgment on June 13, 2023. Appellant voluntarily withdrew its timely appeal of that judgment in No. 86729-6. Appellant’s June 12, 2025 notice in the present matter is untimely as to the prior orders and the May 27, 2025 order identified in the June 12, 2025 notice does not bring up for review the 2023 final judgment or revive the appeal voluntarily dismissed in No. 86729-6. Thyssen moved to modify this decision which a three judge panel denied. Thyssen then requested discretionary review in the Washington State Supreme Court, which was also denied.

5 No. 88441-7-I/6

Rutherford, 195 Wn. App. 863, 867, 381 P.3d 1221 (2016). We review a trial

court’s findings of fact for substantial evidence, which is evidence sufficient to

persuade a rational fair-minded person that the premise is true. Sutey v. T26

Corp., 13 Wn. App. 2d 737, 750, 466 P.3d 1096 (2020).

Dismissal of WPI With Prejudice

Thyssen claims “WPI is still a party to the 2022 action in that the trial court

has not dismissed WPI ‘with prejudice.’ ” According to Thyssen, the order of

dismissal with prejudice obtained in the 2024 is void and “should be disregarded

with no effect on the present action,” because WPI was not served and the court

never obtain in personam jurisdiction over WPI. Thyssen relies on established

legal principles requiring proper service of the summons and complaint to invoke

personal jurisdiction over a party and dismissal of a judgment entered without

proper jurisdiction as void. 5

However, Thyssen fails to recognize dismissal is precisely the remedy in

cases where the trial court lacks personal jurisdiction. See CR 12(b)(2); Noll v.

Am. Biltrite Inc., 188 Wn.2d 402, 405-06, 395 P.3d 1021 (2017) (trial court

properly dismissed case where plaintiff failed to allege sufficient facts for

personal jurisdiction). “Washington courts generally follow the common-law rule

‘that a court lacking jurisdiction of any matter may do nothing other than enter an

order of dismissal.’ ” Banowsky v. Guy Backstrom, DC, 193 Wn.2d 724, 733, 445

P.3d 543 (2019) (quoting Deschenes v. King County, 83 Wn.2d 714, 716, 521

5 Thyssen cites to In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754

(1988) and Metro. Fed. Sav. & Loan Ass’n of Seattle v. Greenacres Mem’l Ass’n, 7 Wn. App. 695, 699, 502 P.2d 476 (1972).

6 No. 88441-7-I/7

P.2d 1181 (1974)). The trial court’s dismissal of the 2024 case was the only

proper action where it lacked jurisdiction and is not void for lack of jurisdiction.

Further Proceedings Required

Thyssen claims “without any notice that it was happening, the 2024 Action

was filed on May 9, 2024 and dismissed, with prejudice, without notice and

somehow resulted in Thyssen’s right to appeal on the merits of the 2022 Action

to be ‘extinguished.’ ” According to Thyssen, “[t]his Court’s mandate on January

16, 2025, required that the trial court have further proceedings and by such,

KCLR 72 and CR 52(a)(2)(C) required the trial court to make specific findings to

make its final order appealable,” otherwise the final order continues to be

interlocutory. Thyssen’s claim is both factually and legally incorrect.

Thyssen’s complaints as to the dismissal of WPI and subsequent

“extinguishment” of its right to appeal without warning are disingenuous. Thyssen

filed its second notice of appeal, cause number 86729-6-I, within 30 days of entry

of the order dismissing WPI with prejudice. 6 The timely notice of appeal, as well

as Peters’ statements to this court, indicates Thyssen was informed of the entry

of the order of dismissal in the 2024 case. Moreover, prior to granting voluntary

dismissal of 86729-6-I, we informed Thyssen the final judgment appeared

appealable and warned of the potential loss of the right to appellate review.

Nonetheless, Thyssen pursued voluntary dismissal. Thyssen cannot claim

6 A notice of appeal must be filed in the trial court within 30 days of entry of the order for

review. RAP 5.2(a). The court entered the order dismissing WPI with prejudice on May 10, 2024. Thyssen filed its notice of appeal on May 23, 2024.

7 No. 88441-7-I/8

ignorance of WPI’s dismissal with prejudice or the possible legal ramifications of

voluntarily withdrawing an appealable order.

With respect to Thyssen’s legal argument, neither CR 52(a)(2)(C) nor

KCLR 72 establish the trial court must make findings for the order to be

appealable. Thyssen cites to CR 52(a)(2)(C), which requires the trial court to

make findings of fact and conclusions of law “[i]n connection with any other

decision where findings and conclusions are specifically required by statute, by

another rule, or by a local rule of the superior court.” According to Thyssen, “CR

54(b) is ‘another rule’ that specifically requires findings in the underlying action.”

CR 54(b) pertains to judgments on multiple claims or involving multiple parties,

stating in pertinent part:

when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment. The findings may be made at the time of entry of judgment or thereafter on the court’s own motion or on motion of any party. In the absence of such findings, determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

By its terms, CR 54(b) requires the trial court to enter findings of fact to allow

appellate review when a judgment is not yet final as to all parties. CR 54(b)

findings would have allowed for immediate appealability after entry of the order

and judgment dismissing WPI without prejudice because the judgment did not

8 No. 88441-7-I/9

finally determine the claims against WPI. However, when Peters obtained

dismissal of WPI with prejudice, the judgment became final as to all parties.

Peters sought dismissal of the 2024 lawsuit against WPI under CR

41(a)(1)(B), which allows the plaintiff to voluntarily move to dismiss at any time

before conclusion of their opening case. The trial court must grant a plaintiff’s

timely motion for voluntary dismissal under CR 41(a)(1)(B). Seattle-First Nat’l

Bank v. Westwood Lumber, Inc., 59 Wn. App. 344, 348, 796 P.2d 790 (1990).

Generally, dismissal pursuant to CR 41(a)(1)(B) is without prejudice, “except that

an order of dismissal operates as an adjudication upon the merits when obtained

by a plaintiff who has once dismissed an action based on or including the same

claim in any court of the United States or of any state.” CR 41(a)(4). This “two

dismissal” rule “operates as a nondiscretionary adjudication upon the merits

when the dismissals at issue are unilaterally obtained by the plaintiff.” Spokane

County v. Specialty Auto and Truck Painting, Inc., 153 Wn.2d 238, 246, 103 P.3d

792 (2004). As a result of the second unilateral voluntary dismissal, the court is

required to dismiss with prejudice. Guillen v. Pierce County, 127 Wn. App. 278,

288, 110 P.3d 1184 (2005).

In the 2024 case, Peters requested dismissal of WPI without prejudice

under CR 41(a)(1)(B) and the trial court granted the motion. 7 The “two-dismissal”

rule then applied to constitute an adjudication on the merits of the claims and a

final judgment against WPI. See Feature Realty, Inc. v. Kirkpatrick & Lockhart

7 In granting Peters’ request for dismissal of WPI without prejudice under CR 41(a)(1)(B),

the trial court did not discuss whether voluntary dismissal as to WPI was proper after summary judgment proceedings against Thyssen. Thyssen did not oppose voluntary dismissal of WPI under CR 41(a)(1)(B) at the time or in this appeal.

9 No. 88441-7-I/10

Preston Gates Ellis, LLP, 161 Wn.2d 214, 224, 164 P.3d 500 (2007) (“a second

dismissal constitutes an adjudication on the merits, and thus the doctrine of res

judicata prevents the plaintiff from relitigating the same claim against the same

party in a subsequent action.”); Krikava v. Webber, 43 Wn. App. 217, 219, 716

P.2d 916 (1986) (“A dismissal with prejudice . . . is equivalent to a final judgment

on the merits.”). With all claims concluded as to WPI, the final judgment

previously entered against Thyssen became appealable as of right. RAP

2.2(a)(1).

With all claims concluded against all parties, CR 54(b) no longer applies.

CR 54(b) findings are unnecessary. Indeed, Thyssen filed a notice of appeal after

entry of the order dismissing WPI with prejudice without CR 54(b) findings and

made no effort to obtain CR 54(b) findings from the trial court.

In addition to CR 52(a)(2)(C) and CR 54(b), Thyssen cites KCLR 72 in

support of required findings before the case is appealable. KCLCR 72 states:

upon the issuance of a mandate from an appellate court, returning a case to the King County Superior Court, either party may file a motion with the Respective Chief Judge for a judicial assignment and the issuance of a case schedule. If no party files such a motion within 90 days, the matter may be dismissed by the clerk for lack of prosecution.

KCLCR 72 makes no mention of findings of fact after mandate and return to the

superior court. Thyssen argues the rule and the mandate from this court which

returned the matter “to the Superior Court from which the appeal was taken for

further proceedings in accordance with the attached true copy of the decision,”

necessitate additional proceedings.

10 No. 88441-7-I/11

Neither KCLCR 72 nor the mandate specify required proceedings. The

order and judgment were final as to all parties and the window for

reconsideration had long passed. See CR 59(b) (motion for reconsideration “shall

be filed not later than 10 days after entry of the judgment, order, or other

decision”). Thyssen voluntarily dismissed review of an appealable order and we

issued the mandate. Issuance of the mandate certified the conclusion of the

appellate process and terminated the delay of enforcement of the trial court

decision. RAP 12.5; RAP 8.6. Therefore, Peters’ enforcement of the judgment

remained the only available proceedings for the parties.

Consistent with this, Peters filed a motion to execute on the cash

supersedeas bond. The trial court properly found all appeals had been

extinguished and ordered payment of the judgment. Therefore, authorization of

payment from the bond to satisfy the judgment was not an abuse of discretion.

Fees on Appeal

Peters requests reasonable attorney fees and costs on appeal pursuant to

RAP 18.1(a), RCW 4.84.330, and RCW 59.18.280. “A party is entitled to attorney

fees on appeal if a contract, statute, or recognized ground of equity permits

recovery of attorney fees at trial and the party is the substantially prevailing

party.” Hwang v. McMahill, 103 Wn. App. 945, 954, 15 P.3d 172 (2000). Here,

the lease provides: “In the event it is necessary for either party to employ an

attorney to enforce any terms of this Lease Agreement, the other party agrees to

pay reasonable attorney’s fees and court costs as provided for by law.”

Additionally, the RLTA provides for attorney fees: “[i]n any action brought by the

11 No. 88441-7-I/12

tenant to recover the deposit, the prevailing party shall additionally be entitled to

the cost of suit or arbitration including a reasonable attorneys’ fee.” RCW

59.18.280(2). Therefore, we award Peters reasonable attorney fees and costs

subject to compliance with RAP 18.1(d).

Affirmed.

WE CONCUR: