§ 4.4 Superior Court Decisions Subject Only to Discretionary Review

• Jurisdiction: Washington

§4.4 SUPERIOR COURT DECISIONS SUBJECT ONLY TO DISCRETIONARY REVIEW

Under RAP 2.3(a), a party may seek discretionary review of any superior court "act" that is not appealable "as a matter of right" under RAP 2.2, unless otherwise prohibited by statute or court rule.

(1) Generally

Most superior court decisions are reviewable either as a matter of right (RAP 2.2) or in the appellate court's discretion (RAP 2.3). Occasionally, a statute or court rule purports to prohibit any review. For example, RCW 29A.72.080 prohibits appeal or discretionary review from the superior court's decision regarding ballot title challenges. But in Kreidler v. Eikenberry, 111 Wn.2d 828, 766 P.2d 438 (1989), the Supreme Court held that it would in certain circumstances exercise its inherent power to review a ballot title.

RAP 2.3 allows a party to seek discretionary review of an "act" of the superior court—a term that is broader than the terms "order," "judgment," or "decision" used in RAP 2.2. The broader term "act" is necessary to encompass all review formerly available by writ of certiorari, writ of mandamus, and other writs. So, for example, refusal to enter an order may be an act subject to discretionary review.

(2) Considerations governing acceptance of discretionary review

RAP 2.3(b) sets out the considerations for acceptance of discretionary review. Most motions for discretionary review are made from interlocutory trial court decisions. When a motion for discretionary review is made from a decision of the superior court reviewing a decision from a court of limited jurisdiction, the criteria set forth in RAP 2.3(d) also apply. See §4.4(5), below. Interlocutory review is generally disfavored. State v. Richardson, 177 Wn.2d 351, 365, 302 P.3d 156 (2013) (noting that the appellate courts accept only about 10 percent of motions for discretionary review that are filed (citing In re Dependency of Grove, 127 Wn.2d 221, 235-36, 897 P.2d 1252 (1995))).

(a) RAP 2.3(b)(1): obvious error that renders further proceedings useless

RAP 2.3(b)(1) authorizes discretionary review if the superior court has committed an obvious error that would render further proceedings useless. An obvious error is an act or decision that is clearly contrary to existing statute or case law and is not a matter of discretion. The following are some examples of "obvious error":

SEA-PAC CO. V. UNITED FOOD & COMMERCIAL WORKERS LOCAL UNION 44, 103 Wn.2d 800, 699 P.2d 217 (1985). The trial court committed obvious error in denying a motion for summary judgment by the defendant union in an action by a company for tortious interference with a business relationship and abuse of process.

MACIAS V. MINE SAFETY APPLIANCES CO., 158 Wn. App. 931, 244 P.3d 978 (2010), rev'd sub nom. MACIAS V. SABERHAGEN HOLDINGS, INC., 175 Wn.2d 402, 282 P.3d 1069 (2012). The Court of Appeals accepted discretionary review and held that the trial court committed obvious error in denying a respirator manufacturer's motion for summary judgment on the ground that it had no duty to warn a shipyard worker that he could be exposed to asbestos while cleaning the respirators. The Supreme Court reversed the Court of Appeals. 175 Wn.2d 402.

IN RE DEPENDENCY OF PPT, 155 Wn. App. 257, 229 P.3d 818 (2010). The Court of Appeals reversed dismissal of the state's petitions to terminate parental rights, holding that the trial court committed obvious error in finding that continuing the parent-child relationship would not adversely affect efforts to integrate the children into a stable and permanent home.

BARTUSCH V. OR. STATE BD. OF HIGHER EDUC., 131 Wn. App. 298, 126 P.3d 840 (2006). The Court of Appeals reversed the trial court's denial of an out-of-state defendant's motion to dismiss for lack of jurisdiction.

WASH. STATE DEP'T OF LABOR & INDUS. V. DAVISON, 126 Wn. App. 730, 735, 109 P.3d 479 (2005). The Court of Appeals reversed the trial court's reinstatement of a citation issued by the Department of Labor and Industries, holding that substantial evidence supported the administrative law judge's dismissal of the citation. The trial court committed obvious error in reversing the administrative law judge's decision that a company's cabinet manufacture and installation activities were exempt from contractor registration requirements, warranting review under RAP 2.3(b)(1).

SHANNON V. STATE, 110 Wn. App. 366, 40 P.3d 1200 (2002). The Court of Appeals held that denial of the state's motion to dismiss a lawsuit based on a tort claim that had not been verified by the claimants was obvious error.

NEW MEADOWS HOLDING CO. V. WASH. WATER POWER CO., 34 Wn. App. 25, 659 P.2d 1113 (1983), aff'd, 102 Wn.2d 495, 687 P.2d 212 (1984). The Court of Appeals reversed the trial court's partial summary judgment that a utility company was strictly liable for damages arising out of the transmission of natural gas, which the trial court rendered without any support in American case law.

GIORDANO V. MCNEILAB, INC., 35 Wn. App. 221, 666 P.2d 384 (1983). The Court of Appeals held that the trial court erred in granting summary judgment as to liability based solely upon an impermissible inference in favor of the moving party.

CAMPBELL V. SCANNELL, 32 Wn. App. 346, 647 P.2d 529 (1982). The Court of Appeals reversed the trial court denial of an order vacating an order of default entered on a third-party complaint when the third-party defendant had moved to dismiss the complaint before entry of the default order but the court had failed to rule upon the motion.

While it is a straightforward matter to argue that a trial court's ruling is obvious error, it is far more difficult to satisfy the second requirement of RAP 2.3(b)(1)—that further proceedings will be rendered "useless." The argument that discretionary review is needed to avoid a useless trial may not carry much weight; whenever a trial court makes a ruling that is reversible error, it has—by definition—engendered a useless trial. The prospect of a substantial waste of judicial resources is present any time a party is urging that the trial court's ruling renders further proceedings "useless" under RAP 2.3(b)(1). It is a simple fact that most cases settle and never reach the appellate courts.

The commissioner considering the motion for discretionary review will be extremely cognizant of this fact and will have an institutional bias that will prefer avoiding a useless appeal over avoiding a useless trial. See Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 WASH. L. REV. 1541, 1547, 1550 (Oct. 1986). Nonetheless, when a complex and lengthy trial appears both inevitable and a substantial waste of time, the chance of acceptance of review will be greater. See Marine Power & Equip. Co. v. Indus. Indem. Co., 102 Wn.2d 457, 687 P.2d 202 (1984) (review of trial court's refusal to honor affidavit of prejudice in advance of a year-long trial over construction of ferries).

An argument that discretionary review may avoid a useless trial can be strengthened by a corollary argument, such as an argument that the matter presents issues of "broad public import." See Hartley v. State, 103 Wn.2d 768, 773, 698 P.2d 77 (1985); see also Shannon v. State, 110 Wn. App. 366, 40 P.3d 1200 (2002) (reviewing denial of summary judgment for state on issue of plaintiff's noncompliance with notice of claim statute, RCW 4.92.100).

By contrast, discretionary rulings and trial management decisions rarely lend themselves to discretionary review under RAP 2.3(b)(1), both because discretionary rulings are rarely "obviously" erroneous and because they cannot be reviewed without a full evidentiary record. For instance, in Minehart v. Morning Star Boys Ranch, Inc., 156 Wn. App. 457, 232 P.3d 591, review denied 169 Wn.2d 1029 (2010), the Court of Appeals denied review of interlocutory evidentiary rulings. Not only are evidentiary decisions discretionary, but the consequence of admission or exclusion—the prejudicial or harmless nature—of the evidence could not be addressed on appellate review without an examination of the other evidence admitted at trial.

Practice Tip: While it may be that the more obvious the error, the greater the chance that review will be granted, given the institutional bias against interlocutory review, the petitioner must make a compelling case that the challenged decision will have immediate and long-term consequences that will not be obviated by subsequent developments and that will make appellate review at the conclusion of the case, as well as reversal, inevitable.

(b) RAP 2.3(b)(2): probable error that substantially alters the status quo or limits the freedom of a

...