§ 11.4 Case Law Exceptions to The General Rule

• Jurisdiction: Washington

§11.4 CASE LAW EXCEPTIONS TO THE GENERAL RULE

In addition to the express exceptions in RAP 2.5(a), which are based largely on prior case law, Washington appellate courts have frequently elected to review several other classes of issues even if raised for the first time on review. Although RAP 2.5(a) treats these issues differently from the express exceptions contained in the rule, in that only the express exceptions may be raised as a matter of right for the first time on review, the appellate courts have continued to exercise their discretion to consider such issues when raised for the first time on review. See 2A Karl B. Tegland, WASHINGTON PRACTICE: RULES PRACTICE, RAP 2.5, Author's Comments, at 225-26 (8th ed. 2014).

(1) Application of statute or court rule

When a statute or court rule determines the facts upon which relief may be granted, the appellate court may consider the statute or court rule for the first time on review. "[A] statute not addressed below but pertinent to the substantive issues which were raised below may be considered for the first time on appeal." Bennett v. Hardy,113 Wn.2d 912, 918, 784 P.2d 1258 (1990) (citing State v. Fagalde,85 Wn.2d 730, 732, 539 P.2d 86 (1975)); see also Gross v. City of Lynnwood,90 Wn.2d 395, 400, 583 P.2d 1197 (1978) (considering and accepting the argument, raised for the first time on review, that an age discrimination plaintiff was not within the class of persons protected by an age discrimination statute); In re Welfare of BRSH,141 Wn.App. 39, 45, 169 P.3d 40 (2007) (application of statute); Batten v. Abrams,28 Wn.App. 737, 626 P.2d 984 (application of court rule), review denied, 95 Wn.2d 1033 (1981). Based on this reasoning, the Court of Appeals has considered the application of CR 15(a) first raised on review in determining whether a counterclaim was appropriate. See Wolfe v. Legg,60 Wn.App. 245, 803 P.2d 804 (1991). This case law exception may sometimes be encompassed by RAP 2.5(a)(2), discussed in §11.3(2), above, pertaining to the failure to establish facts upon which relief can be granted.

In Optimer International, Inc. v. RPBellevue, LLC,151 Wn.App. 954, 962, 214 P.3d 954 (2009), aff'd, 170 Wn.2d 768, 246 P.3d 785 (2011), Division I of the Court of Appeals reviewed the enforceability of a clause in an arbitration agreement expressly waiving judicial review of the arbitrator's decision under the current Arbitration Act, which was enacted after the contract was executed and which, for the first time, precluded the enforcement of such waiver clauses. Discussing RAP 2.5(a), the court noted that the appellate court may review an order based on an incorrect application of a statute despite the fact that parties did not raise the issue below.

The court has, however, refused to consider the application of statutes of limitation for the first time on appeal. See State v. Peltier, 181 Wn.2d 290, 296, 332 P.3d 457 (2014) ("[A] criminal statute of limitations does not affect a court's subject matter jurisdiction."); Vigil v. Spokane County,42 Wn.App. 796, 714 P.2d 692 (1986) (entitlement to statute of limitations defense in civil case is not of constitutional proportions and will be deemed waived if not raised in trial court).

(2) Right to maintain action

The Supreme Court has recognized another exception to the general rule and has considered issues not raised below "when the question raised affects the right to maintain the action." Becker v. County of Pierce,126 Wn.2d 11, 19, 890 P.2d 1055 (1995) (quoting Bennett v. Hardy,113 Wn.2d 912, 918, 784 P.2d 1258 (1990) (quoting Maynard Inv. Co. v. McCann,77 Wn.2d 616, 621, 465 P.2d 657 (1970))); see also Ives v. Ramsden,142 Wn.App. 369, 388-89, 174 P.3d 1231 (2008); Jones v. Stebbins,122 Wn.2d 471, 479-80, 860 P.2d 1009 (1993) (permitting alternative argument for effectiveness of service of process to be raised for first time on appeal); Morales v. Westinghouse Hanford Co.,73 Wn.App. 367, 370, 869 P.2d 120 (statute of limitations defense), review denied,124 Wn.2d 1019 (1994).

(3) Matters affecting juveniles

In equitable actions involving minors, the Washington Supreme Court has relaxed the general rule requiring claims of error to be raised in the trial court. See, e.g., In re Guardianship of Ivarsson,60 Wn.2d 733, 375 P.2d 509 (1962); Seattle-First Nat'l Bank v. Crosby,42 Wn.2d 234, 254 P.2d 732 (1953); In re Guardianship of Deming,192 Wash. 190, 73 P.2d 764 (1937) (pre-RAP cases); see also Thompson v. Thompson,9 Wn.App. 930, 515 P.2d 1004 (1973) (holding, in dissolution case involving child custody, that "fundamental justice" required review of a conclusion to which no error had been assigned, to determine whether the father had been deprived...