§ 11.9 Law of the Case Doctrine Restricted

• Jurisdiction: Washington

§11.9 LAW OF THE CASE DOCTRINE RESTRICTED

The common-law "law of the case" doctrine applies to at least three situations:

[1] It has been used to indicate the binding effect of determinations made by the appellate court on further proceedings in the trial court on remand. [2] It has been used in connection with the rule that the instructions given to the jury by the trial court, if not objected to, shall be treated as the properly-applicable law. And [3] it has been used to express the principle that an appellate court will generally not make a redetermination of the rules of law which it has announced in a prior determination in the same case or which were necessarily implicit in such prior determination.

2A Karl B. Tegland, WASHINGTON PRACTICE: RULES PRACTICE, RAP 2.5, Author's Comments, at 238 (8th ed. 2014) (citations omitted).

The applicability of the law of the case doctrine in the first situation is addressed in §20.8 of this deskbook. Its application in the second and third situations described by Professor Tegland, above has been limited (but not abolished) by RAP 2.5(c), which provides:

Law of the Case Doctrine Restricted. The following provisions apply if the same case is again before the appellate court following a remand:

(1) Prior Trial Court Action. If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.

(2) Prior Appellate Court Decision. The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

See generally State v. Schwab, 163 Wn.2d 664, 672-73, 185 P.3d 1151 (2008); State v. Harrison, 148 Wn.2d 550, 562-63, 61 P.3d 1104 (2003); State v. Worl,129 Wn.2d 416, 918 P.2d 905 (1996); Folsom v. County of Spokane,111 Wn.2d 256, 759 P.2d 1196 (1988). See also Garcia v. Brulotte,94 Wn.2d 794, 620 P.2d 99 (1980).

(1) Prior trial court action

An example of the application of RAP 2.5(c)(1) is a case in which the plaintiff appeals from an adverse judgment that also contains (or is affected by) rulings unfavorable to the defendant. The defendant may be satisfied with the final outcome and assert no errors on review. Further, the defendant may not qualify as an "aggrieved party" under RAP 3.1. If the case is reversed and remanded for a new trial, RAP 2.5(c)(1) would permit the defendant to object to those rulings on remand and thereafter seek appellate review of the trial court's rulings on remand.

Read literally, however, RAP 2.5(c)(1) adds nothing to the basic rule set forth in RAP 2.5(a), which recognizes that an appellate court has discretion to review any claim of error, regardless of whether it was raised in the trial court. Cf. §11.2, above. An earlier draft of subsection (1) provided that the appellate court "will" review a decision of the trial court under the circumstances described. See Malcolm L. Edwards, The New Appellate Rules:Part 5, WASH. ST. B. NEWS, 29, 31 (Dec. 1976) ("Rule 2.5(c) as originally written by the [Advisory] Task Force [on Appellate Rules] directly abolished this aspect [change of trial court decision] of the law of the case doctrine. The Supreme Court changed the original...