¶[41
Madsen, J.(dissenting) — Justice Sanders is absolutely correct in his analysis of CR 41(a)(4), as reading the sections of CR 41(a) together makes clear.9
*254¶42 Read fairly, CR 41(a) describes the circumstances under which a party may obtain a voluntary order of dismissal. Section (a)(1) provides when a court is mandated to grant dismissal. Section (a)(2) sets out circumstances under which the court has discretion to grant dismissal. Section (a)(3) speaks to the rights of a defendant who has filed a counterclaim prior to plaintiff’s motion to dismiss. Section (a)(4), at issue here, describes the effect of dismissal granted under the preceding sections—all of the preceding sections, including stipulated dismissals under section (a)(1)(A).
¶43 Under the first clause of section (a)(4), all orders of dismissal granted pursuant the preceding sections are deemed to be without prejudice (unless otherwise provided in the order). The exception to the rule that all dismissal orders are without prejudice is when a court grants a second motion to dismiss to a plaintiff who has already successfully moved for dismissal once before. Then, the second order of dismissal acts as a decision on the merits. Reading the four subsections of CR 41(a) together, as we must, it is inescapable that the effect of a voluntary dismissal, as described in section (a)(4), is the same regardless of how the dismissal is obtained.
¶44 I agree with Justice Sanders that only through wishful thinking by the majority can CR 41(a)(4) be limited to “unilateral” dismissals. Concurrence/dissent at 251. Accordingly, I agree with the dissent that the trial court in *255Faust v. Bellingham Lodge No. 493, Loyal Order of Moose, Inc., erred by refusing to grant the Lodge’s motion to dismiss. The fact that the parties in that case stipulated to the dismissal orders is of no consequence because CR 41(a)(4), the two-dismissal rule, applies to section (a)(1)(A), stipulated dismissals, as it does to all other voluntary dismissals under CR 41(a).
¶45 I write separately, however, because I do not agree with Justice Sanders’ application of the rule to the first order of dismissal in Specialty Auto. Spokane County v. Specialty Auto & Truck Painting, Inc., 119 Wn. App. 391, 79 P.3d 448 (2003). In that case, Spokane County had filed the same claim under two different cause numbers. By dismissing one cause number, the trial court did not dismiss the claim. Clearly, the county could recover only once on the same claim, and it would have been inappropriate for the same claim to proceed under two different numbers. See generally CR 42. Equally clear is the fact that the county did not dismiss its claim, as the claim continued to exist under the alternate number. As the Court of Appeals in In re Burley, 33 Wn. App. 629, 638, 658 P.2d 8 (1983) noted, “the reason for the two-dismissal rule is to prevent the abuse and harassment of a defendant. .. and to prevent the unfair use of dismissal.” Although I agree entirely with other courts that have strictly construed CR 41(a)(4) to apply to all dismissals, here there was no prior dismissal within the meaning of the rule because the county’s lawsuit continued to exist under a different cause number. Thus, I believe the application of CR 41(a)(4) to these circumstances is inappropriate and beyond the intent or purpose of the rule.
Fairhurst, J., concurs with Madsen, J.
CR 41. Dismissal op Actions
(a) Voluntary Dismissal.
(1) Mandatory. Subject to the provisions of rules 23(e) and 23.1, any action shall be dismissed by the court:
(A) By stipulation. When all parties who have appeared so stipulate in writing; or
*254(B) By Plaintiff Before Resting. Upon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case.
(2) Permissive. After plaintiff rests after his opening case, plaintiff may move for a voluntary dismissal without prejudice upon good cause shown and upon such terms and conditions as the court deems proper.
(3) Counterclaim. If a counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion for dismissal, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.
(4) Effect. Unless otherwise stated in the order of dismissal, the dismissal 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.