§ 5.6 How Content of Notice Affects Scope of Review

• Jurisdiction: Washington

§5.6 HOW CONTENT OF NOTICE AFFECTS SCOPE OF REVIEW

RAP 5.3(a) and (b) provide that a notice of appeal or notice for discretionary review must "designate the decision or part of decision which the party wants reviewed." What is designated in the notice may affect what the appellate court will review, as set forth in RAP 2.4.

(1) Introduction

The first sentence of RAP 2.4(a) presents the roadmap for what the appellate court will review at the instance of the appellant: the appellate court will review the decision (or parts of the decision) designated in the notice and "other decisions in the case as provided in sections (b), (c), (d), and (e)" of the rule.

RAP 2.4(b) addresses an order or ruling not designated in the notice. See §5.6(2), below. RAP 2.4(c) addresses a final judgment not designated in the notice. See §5.6(3). RAP 2.4(d) and (e) address orders deciding alternative post-trial motions in civil and criminal cases respectively. See §5.6(4). In addition, RAP 2.4(f) and (g) provide respectively that the appellate court will consider certain post-trial motions not designated in the notice, see §5.6(5), and will consider an award of attorney fees entered after review and not designated in the notice, see §5.6(7).

RAP 2.4(a) notes that, under RAP 2.3(e), the appellate court, upon accepting discretionary review, may specify what issue or issues it will review—which may differ from what appellant has designated. Emily Lane Homeowners Ass'n v. Colonial Devel., L.L.C.,139 Wn. App. 315, 318, 160 P.3d 1073 (2007) ("The court determines the scope of discretionary review."), aff'd in part and rev'd in part on other grounds sub nom. Chadwick Farms Owners Ass'n v. FHC LLC,166 Wn.2d 178, 207 P.3d 1251 (2009). About the time the Supreme Court decided Right-Price Recreation, LLC v. Connells Prairie Community Council, the rules were amended to give the appellate court the authority to limit the issues on review. 146 Wn.2d 370, 380, 46 P.3d 789 (2002) (Court of Appeals may not limit issues on discretionary review to exclude review of order prejudicially affecting decision designated in the notice, as provided by RAP 2.4(b)), cert. denied, 540 U.S. 1149 (2004).

The remainder of RAP 2.4(a) addresses what the appellate court will review at the instance of the respondent. See §5.6(6), below.

(2) Review at instance of appellant: orders not designated in notice

RAP 2.4(b) provides that the appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, "if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review." An order "prejudicially affects" the designated decision if the designated decision would not have occurred in the absence of the other decision. Right-Price, 146 Wn.2d at 380; Gomez v. Sauerwein, 172 Wn. App. 370, 376, 289 P.3d 755 (2012), aff'd, 180 Wn.2d 610, 331 P.3d 19 (2014).

RAP 2.4(b) applies most often when the designated decision is a final judgment. As a practical matter, designation of the final judgment brings up for review all previous decisions affecting the judgment, including evidentiary rulings, rulings and orders on summary judgment and other pretrial motions, and jury instructions. See, e.g., Gomez, 172 Wn. App. at 377 (plaintiff's notice of appeal designating final judgment and orders on post-trial motions brought up for review trial court's oral ruling dismissing informed consent theory and refusing to instruct jury on that theory). Those decisions, if in error, will prejudicially affect the final judgment, unless the error is harmless.

Thus, an order denying summary judgment premised on a question of law will be reviewed because the court's legal error prejudicially affected the ultimate decision following final judgment. See, e.g., Weiss v. Lonnquist, 173 Wn. App. 344, 354, 293 P.3d 1264, review denied, 178 Wn.2d 1025 (2013). However, a trial court's denial of a summary judgment based on the existence of disputed facts does not prejudicially affect the decision following a trial on the merits and will not be reviewed on appeal from a final judgment. That is because the final judgment is based on the evidence considered at trial, not on summary judgment.

For the appellate court to review an undesignated decision under RAP 2.4(b), that decision must also predate acceptance of review. Although "acceptance of review" occurs automatically on filing of a notice of appeal, "acceptance of review" does not occur until the appellate court enters an order granting discretionary review.

PracticeTip: Uncertainty about whether an order is appealable creates uncertainty about when review is accepted and can therefore affect application of RAP 2.4(b). To assure review, a party should amend or file a new notice of appeal of an order entered after review is accepted under RAP 5.1(f), discussed in §5.4(1), above.

By its terms, RAP 2.4(b) applies to bring up an appealable order not designated in the notice. As noted in Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 134, 750 P.2d 1257, 756 P.2d 142 (1988), prior appellate rules set a trap for the unwary by providing that failure to appeal from an appealable order precluded later review, even though it is not always clear when an order is appealable. By including appealable orders within its scope, RAP 2.4(b) "solved the problem." The problem becomes, however, determining when the previously appealable order "prejudicially affects" the designated order.

In Adkins, a jury verdict for the plaintiff was nullified by mistrial. Plaintiff did not appeal. Retrial resulted in a defense verdict. On appeal from the second trial, plaintiff sought review of the judge's order of mistrial under RAP 2.4(b). The Supreme Court held that the requirements of RAP 2.4(b) were met. The...