§ 20.8 Effect of Mandate On Trial Court

• Jurisdiction: Washington

§20.8 EFFECT OF MANDATE ON TRIAL COURT

The appellate court decision governs all subsequent proceedings in any court except (1) when otherwise directed upon recall of the mandate as provided in RAP 12.9 and (2) as provided in RAP 2.5(c)(2) regarding application of the law-of-the-case doctrine on a second review. RAP 12.2.

The appellate court may reverse, affirm, or modify the decision being reviewed or take any other action as the merits of the case and the interest of justice may require. RAP 12.2. The rule describes the broad general authority of the appellate court to take action to decide cases on review and to do justice while a case is on review.

(1) Appellate court decision effective upon issuance of mandate

Upon issuance of the mandate, the appellate court's authority to decide substantive issues in the case is transferred back to the trial court. RAP 12.7. The appellate court's decision does not become effective until the mandate is issued. If the trial court's decision is not superseded, the parties may continue to rely on the trial court decision until the mandate issues, even if the appellate court decision reverses the trial court. The reversal of the trial court decision does not take effect until the mandate issues. In other words, the appellate decision is effective only upon issuance of the mandate. In Obert v. Environmental Research & Development Corp., 112 Wn.2d 323, 771 P.2d 340 (1989), the Court of Appeals reversed the trial court. The Supreme Court then reversed the Court of Appeals and reinstated the trial court's decision. The Supreme Court explained that despite reversal by the Court of Appeals, the trial court's decision remained valid until the mandate was issued. Id. at 340-41.

Practice Tip: A party seeking to prevent action inconsistent with the appellate court's decision before the mandate is returned should move for relief under RAP 8.3. See Chapter 8 of this deskbook.

The mandate restores the trial court's authority to act. While the appeal is pending, the trial court's power is limited by the provisions of RAP 7.2. Once the mandate issues, the trial court's authority is no longer limited, except it cannot grant a postjudgment motion to modify the appellate decision for any reasons presented to the appellate court. Alpine Indus., Inc. v. Gohl, 101 Wn.2d 252, 676 P.2d 488 (1984); State v. Dorosky, 28 Wn. App. 128, 622 P.2d 402, review dismissed, 96 Wn.2d 1011 (1981).

When the appellate court issues the mandate under RAP 12.5, the action taken and decision made by the appellate court is effective and binding on the parties to review. Hough v. Stockbridge, 152 Wn. App. 328, 337-38, 216 P.3d 1077 (2009), review denied, 168 Wn.2d 1043 (2010). The trial court must follow the mandate based upon the entirety of the appellate court's decision, without any particular emphasis on selective portions of the decision. Deep Water Brewing, LLC v. Fairway Res., Ltd., 170 Wn. App. 1, 7, 282 P.3d 146 (2012).

(2) Mandate establishes the law of the case

The mandate establishes the law of the case, which is binding on the trial court as to all issues addressed in the appellate court decision. "'[O]nce there is an appellate holding enunciating a principle of law, that holding will be followed in later stages of the same litigation.'" Bank of Am., N.A. v. Owens, 177 Wn. App. 181, 189-90, 311 P.3d 594 (2013) (footnote omitted) (quoting State v. Schwab, 134 Wn. App. 635, 644, 141 P.3d 658 (2006), aff'd, 163 Wn.2d 664 (2008)), review denied, 179 Wn.2d 1027 (2014); see also Humphrey Indus., Ltd. v. Clay Street Assocs., LLC, 176 Wn.2d 662, 669, 295 P.3d 231 (2013) (quoting Greene v. Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1966)). The mandate may preclude a party on remand from resurrecting alternative theories to support the judgment that has been reversed if it failed to raise those arguments in support of the judgment on appeal. Owens, 177 Wn. App. at 191-92.

The trial court may take action that does not run afoul of the appellate court's mandate. RAP 12.2 allows trial courts to "hear and decide postjudgment motions otherwise authorized by statute or court rule so long as those motions do not challenge issues already decided by the appellate court." Division I interpreted RAP 12.2 as permitting a trial court to determine on remand that the party that prevailed on appeal in a condemnation action (the Seattle Monorail Project, or SMP) had since abandoned its condemnation rights by assigning them to a private third party, because SMP had no legal authority to assign condemnation powers in this fashion. HTK Mgmt., LLC v. Rokan Partners, 139 Wn. App. 772, 162 P.3d 1147 (2007). Because the prior appeal had decided the issue of public use and necessity, the trial court had the authority to vacate the stipulated judgment, find abandonment, and dismiss the condemnation...