Wash. Court of Appeals published opinion — 723421.pdf

Citation: Wash. Court of Appeals published opinion — 723421.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/723421.pdf ↗

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memorialized in the Rules of Appellate Procedure. Roberson. 156 Wn.2d at 41;

State v. Worl. 129 Wn.2d 416, 424, 918 P.2d 905 (1996) (describing RAP 2.5(c)

as "codifying the law of the case doctrine"). RAP 2.5, which relates to the scope

of appellate review, provides, in pertinent part:

(c) 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 ofa 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.

"By using the term 'may,' RAP 2.5(c)(2) is written in discretionary, rather
than mandatory, terms. The plain language of the rule affords appellate courts
discretion in its application." Roberson, 156 Wn.2d at 42: see Folsom v. County

of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).

The same discretion is not afforded to the trial court on remand from the

appellate court. "'Upon the retrial, the parties and the trial court [are] all bound by

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the law as made by the decision on the first appeal. On appeal therefrom, the

parties and this court are bound by that decision unless and until authoritatively