### FILED 

### AUG. 11,2015 In the Office ofthe Clerk ofCourt WA StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE GASTON CORNU-LABAT, ) ) No. 32436-2-III Respondent, ) ) v. ) ) HOSPITAL DIST. #2 GRANT COUNTY ) UNPUBLISHED OPINION d/b/a QUINCYVALLEYHOSPITAL, ) ) Petitioners. ) FEARING, 

### J.

- Gaston Cornu-Labat sues Hospital District #2 ofGrant County, d/b/a Quincy Valley Medical Center(QVMC), for alleged violations ofWashington's Public Records Act (PRA) ch. 42.56 RCW. QVMC formerly employed Cornu-Labat as a surgeon and medical director. As a publichospital district, QVMC is subjectto the PRA. The Washington SupremeCourtpreviouslyheard an appeal in this case andruled theretobe issues offact withregardto exemptions claimedby QVMC under the PRA. On remand, QVMCrefiled a summaryjudgmentmotion, with a new declaration from its hospital administrator, asking for dismissal ofCornu-Labafs claims. Thetrial court deniedthe motion. We granted discretionaryreview. We now affirm the denial ofthe

### No. 32436-2-111 Cornu-Labat v. Hosp. Dist. #2

summaryjudgment motion based on the doctrine ofthe law ofthe case. We do not 

# I**~** address the merits ofthe appeal, butremand for trial. 

# I FACTS From February 

### 2007 to January 

### 2010, QVMC employed Dr. Gaston Cornu-Labat

as a surgeon, chiefofmedical staff, and, for a briefperiod, interim ChiefExecutive Officer (CEO). QVMC is a public hospital district. As such, QVMC is managed by an elected Board ofCommissioners (the Board), which has "overallresponsibility for the conduct ofthehospital." Clerk's Papers (CP) at 135. The Board appoints a CEO "to act in its behalfin the overall management ofthe hospital." CP at 135. QVMC also has a medical staffwithvoting rights on subjects such as clinical privileges, practitioner performance evaluations, hospital policymaking, and policy enforcement. The hospital is small. Atthe time ofthe pertinent events in this case, the medical staffconsisted offour physicians with voting rights and two nonvoting nurse practitioners. The QVMC bylaws governs the hospital's medical staff. Article VIII ofthe bylaws delineates the procedure for corrective or disciplinary action against QVMC practitioners accused ofsubstandard conduct. Article VIII generally addresses concerns related to a medical staffmember's competence, capacity, or character. QVMC maintains a separate policy titled "Dealing with Disruptive BehaviorAmong Healthcare Providers" (disruptive behavior policy) for addressing "egregiously disruptive behavior" and "disruptivebehavior." CP at 

### 273, 190. 2No. 32436-2-III Cornu-Labatv. Hosp. Dist. #2

On July 23,2009, Gaston Cornu-Labat worked a night shift at QVMC. During the shift, Cornu-Labat conversed with a nurse who told him, as they spoke, that she felt uncomfortable with the interaction. The nurse complained to Cornu-Labatthathe smelled ofalcohol and he acted aggressive and impatient. Cornu-Labat ended the conversation and immediately reported the incident to hospital administrators. He requested an investigation. On July 24, 2009, Dr. Mark Vance, vice-president ofthe medical staff, and Medhi Merred, hospital administrator, started an investigation ofGaston Cornu-Labat's July 23 conduct. Vance served as actingpresident for the investigation since Cornu-Labat was president ofthe medical staffat the time. On July 24, Vance and Merred, along with Glenda Bishop, QVMC'srisk management director, interviewed Cornu-Labat and four otherpersons with knowledge ofthe intoxication allegations. At the beginning ofCornuLabat's interview, Merred declared: This interview is conducted as part ofan investigation conducted in accordance with the Medical StaffBylaws, Article VIII, and the Administrative Policy "Dealingwith Disruptive Behavior Among Healthcare Providers." We are the team investigating the complaint. As the Administrator it is my role to conduct any necessary fact finding. CP at 190. After completingthe inquiry, the investigators concluded insufficient evidence supported the allegation ofintoxication. Cornu-Labatreceived a letter confirming that the intoxication investigation had been dismissed. While conductingthe intoxication investigation, Mark Vance and Mehdi Merred 

### 3No. 32436-2-111 Cornu-Labat v. Hosp. Dist. #2

received othercomplaints from QVMC staffmembers regarding Gaston Cornu-Labat. The complaints alleged Cornu-Labat arrived late to work, repeatedly rescheduled patients without any explanation, demanded patients wait while he engaged in lengthy telephone calls, convened last minute unscheduled staffmeetings, failed to take patient vital signs, neglected his personal appearance, yelled, and intimidated hospital staff. On July 27, 2009, QVMC's medical staffmet and unanimously agreed to investigate the new complaints about Gaston Cornu-Labatpursuantto both Article VIII ofthebylaws and the disruptive behaviorpolicy. The staffauthorized Mark Vance, Mehdi Merred, and board memberAnthony Gonzalezto undertake an investigation into alleged inappropriate and unprofessional behavior ofCornu-Labat. On July 29,2009, Gaston Cornu-Labat filed his first public records request with QVMC. He sought: "Any and all records relating to [the intoxication] investigation underthe medical staffby laws [sic] for eleged [sic] physician disruptive behavior and/or any other investigation relating to my conduct and my person[.]" CP at 36-37. On the

same day, Mehdi Merred, via e-mail, rejected Cornu-Labat'spublic records request. Merred cited "RCW42.56.240 which provides exemption from public inspection for specific investigativerecords compiled by agencies vested with the responsibility to discipline members ofany profession." CP at 39. Merred did not identity which documents QVMC refused to produce underthe exemption.

4No. 32436-2-III Cornu-Labat 

### v. Hosp. Dist. #2

On August 4,2009, Mark Vance, Mehdi Merred, and Anthony Gonzalez interviewed Gaston Cornu-Labat. Merred informed Cornu-Labat that the medical staff approved the second investigationpursuantto Article VIII ofthe bylaws and the disruptive behaviorpolicy. The trio later also interviewed the complainants against Cornu-Labat. OnAugust 6,2009, the QVMC investigation panel concluded its second inquiry and cleared Gaston Cornu-Labat ofall charges of"inappropriate and unprofessional behavior." CP at 88. Nevertheless, in a letterto Cornu-Labatconfirming dismissal ofthe allegations, QVMC expressed concern for Cornu-Labat andplaced him onpaid medical leave beginning on August 10,2009. QVMC directed Cornu-Labat to schedule an "informal interview" with a doctor from the Washington Physicians Help Program (WPHP). The letter informed Cornu-Labat thathe could notreturn from paidleave until WPHP notified QVMC that he was fit for duty. Cornu-Labat challenged the objectivity ofWPHP physicians and objected to the conditions ofany evaluation by the organization. He refused to undergo an evaluation by WPHP. Cornu-Labat instead submitted independent psychiatric evaluations with providers ofhis own choosing. OnAugust 11,2009, Gaston Cornu-Labat delivered his secondpublic records request to QVMC. He demanded a copy of"all writings relating to any inquiries and/or investigations involving" himself. CP at 115. QVMC sentno written response to this secondrequest. 5No. 32436-2-111 Cornu-Labat 

### v. Hasp. Dist. #2

On August 26,2009, Cornu-Labat's lawyer sent a letter to QVMC and demanded production ofthe documents soughtby Cornu-Labat in his two records request. The attorney argued the inapplicability ofthe law enforcement investigation exemption. In the lawyer's letter, Cornu-Labat offered to forgo litigation in exchange for prompt disclosure ofthe requested documents. In response to the letter, QVMC provided some documents, but none related to the investigations. On October 29, 2009, QVMC terminated Gaston Cornu-Labat's employment. QVMC alerted the local media that Cornu-Labathad beenreleased from employment because ofhis refusal to submit to an evaluationrequested by the hospital. On January 5, 2010, Gaston Cornu-Labat submittedhis third and final public records request. The request demanded copies ofnine categories ofrecords relating to QVMC's investigation ofhim and internal policies ofthe hospital. OnJanuary 20, 2010, QVMC responded by refusing to disclose any records because the requested records were "health care information

... exempt from disclosure." CP at 700. QVMC cited no statute orcase law to support its assertion ofa health care information exemption. PROCEDURE On March 10,2010, Gaston Cornu-Labat brought action against QVMC under the PRA. A long procedural history followed and the history continues to extend. In this suit, Cornu-Labat seeks an order requiring disclosure ofthe records and awarding penalties and attorney fees under RCW 42.56.550(4). In response, QVMC asserts three 6No. 32436-2-111 Cornu-Labat v. Hosp. Dist. #2 possible statutory exemptions: RCW 4.24.250, RCW 70.41.200, and RCW 70.44.062. RCW 4.24.250 shields from review and disclosure records ofa hospital's regularly constituted review committee engaged in evaluations ofthe competency and qualifications ofa health care provider. RCW 70.41.200 requires that hospitals maintain

a "coordinated quality improvementprogram" to improve the quality ofhealth care and identify and prevent malpractice. RCW 70.44.062 blankets with confidentiality meetings, proceedings, and deliberations ofa public hospital district's board of commissioners, its staff, or agents concerning the granting, denial, revocation, or restriction ofthe clinical or staffprivileges ofaphysician. Bothparties moved for summaryjudgment. On September 7, 2010, the trial court granted Gaston Cornu-Labat's motion for summaryjudgment and denied QVMC's motion. In so ruling, the trial court analyzed whether the documents sought by CornuLabat were, as argued by QVMC, exempt from disclosure. The trial court determined that RCW 70.41.200 did not apply because, in part, QVMC conceded in its pleadings that it had not employed its "quality improvement committee" in its investigations ofGaston Cornu-Labat. QVMC moved for reconsideration, and in a September 30,2010ruling, the trial courtpronounced that QVMC could not claim an exemption under RCW4.24.250 because the committees that investigated Gaston Cornu-Labat's conduct were ad hoc, rather than regularly constituted review committees. The trial courtreasoned, in part, that 

### 7No. 32436-2-111 

### Cornu-Labat 

### v. Hosp. Dist. #2 only peers could serve on a regularly constitutedreview committee, and, since nonphysicians served onthe committees, RCW 4.24.250 did not afford an exemption to QVMC. Finally, the trial courtruled thatRCW 70.44.062 did not apply because the statute created an exceptionto the Open Public Meetings Act, notthe Public Records Act. QVMC appealed the trial court's September7, 2010 orderto this court. This court certifiedthe case to the Supreme Courtpursuant to RCW 2.06.030 and RAP 4.4. OnApril 11,2013,the Washington Supreme Courtreversed the trial court's grant ofsummaryjudgmentto Gaston Cornu-Labat. 

### Cornu-Labat v. 

### Hosp. Dist. No.2, 177 Wn.2d 221,298 P.3d 741 (2013). The Supreme Court agreed with the trial court insofar

as it found RCW 70.41.200 did not apply. Nevertheless, the state high court disagreed with the trial court's interpretation ofRCW4.24.250. The Supreme Court determined that a regularly constituted review committee, as provided in the statute, could include nonphysicians. The court held that issues ofmaterial fact remain regarding whetherthe QVMC officials that investigated Dr. Cornu-Labat acted as agents ofaregularly constituted committee under RCW 4.24.250, or as an ad hoc investigative team, whenthe officials actedunder the auspices ofthe medical staff. The court also held that questions exist as to whatreview mechanism the hospital utilized in investigating Dr. Cornu-Labat. The trial court needed to determine ifthat mechanism was the disruptive behaviorpolicy, which does not require participation ofa regularly constituted committee, or article VIII, which does. 

### 8No. 32436-2-111 Cornu-Labat v. Hosp. Dist. #2

As a matter offirst impression, the Supreme Court also held that RCW 70.44.062 couldprovide an exemption under the PRA. In so ruling, ourhigh court reasoned that, in order to qualifY for the exemption, QVMC must demonstrate that the withheld records concerned Gaston Cornu-Labat's clinical privileges and were created during proceedings ofthe board ofcommissioners, its staff, or agents. As this exemption had notpreviously existed, the Supreme Court again remanded for the trial courtto determine its applicability since factual issues remained. The court noted that only the minutes ofa formal meeting ofthe board's staffor agents qualified for the exemption. In the secondparagraph ofits opinion, the Supreme Court, in Cornu-Labat v. HospitalDistrictNo.2, wrote: The trial court granted summaryjudgment in favor ofDr. CornuLabat, holding none ofthe PRA exemptions invoked by QVMC applied. The court concluded that the records ofa peer review committee that contained nonphysicians could not qualifY for the exemption in RCW 4.24.250. This was error. We remandbecause questions of material fact remain as to whethertherecords at issue were prepared for a regularly constituted peerreview body under RCW4.24.250. Questions also remain as to whether any records were generated during a confidential meeting of agents ofthe QVMC board concerning Dr. Cornu-Labat's clinical or staff privileges. We affirm the trial court's conclusion that the exemption for quality improvement committees, RCW 70.41.200, does not apply under these facts. Cornu-Labat, 177 Wn.2d at 226 (emphasis added). The Supreme Court concluded its opinion with instructions for the parties and the trial court: We remand for determination ofwhether the group investigating Dr. Cornu-Labat constituted a "regularly constituted committee" orthe agents 9No. 32436-2-III Cornu-Labat v. Hosp. Dist. #2

ofsuch a committee underRCW4.24.250(1). In addition, the trial court should decipher ifany ofthe withheld records constitute proceedings ofthe board ofa public hospital district or its staffor agents concerning the status ofa physician's clinical privileges under RCW 70.44.062

... Attorney fees, costs, and penalties are available to the extent the trial court finds any ofthe withheldrecords are not exempt from disclosure. Cornu-Labat, 177 Wn.2d at 241 (footnote omitted). Afterremand and in October 2013, QVMC again moved for summaryjudgment. In support ofits motion, the only new evidence submitted by QVMC was a declaration from Mehdi Merred. Gaston Cornu-Labat cross-moved for summaryjudgment. OnDecember 17, 2013, the trial court denied both parties' motions. In its third letter opinion in this case, the trial court found: This court is charged with making that factual determination in regard to both investigations-the first, conductedby Vance and Merred, andthe second, conducted by Vance, Merred, and Gonzalez. That determination can be made in either oftwo ways-bytrial ifthere is a genuine dispute as to that fact, or by summaryjudgmentifthere is no genuine dispute. Ifsummaryjudgmentis appropriate, it would have to be based upon new declarations added to the record which the Supreme Court already found did not resolve the issue. CP at 788. The court noted that only one new declaration had been filed by Mehdi Merred. However, the court did not find it helpful: In the face ofthe Supreme Court's pronouncementthat which procedurewas employed-Article VIII orthe disruptive behaviorpolicywould shed light on the factual dispute, Mr. Merred declares that both investigations were conducted under both authorities. In the face ofthe Court'spronouncement thatthe exemption may apply to one investigation and notthe other, Mr. Merred declares that both investigations were conducted for the same, unitary purpose: to consider negative action 10No. 32436-2-111 Cornu-Labat 

### v. Hosp. Dist. #2 regarding Plaintiffs clinical privileges. In the face ofthe Court's designation thatthe "regularly constituted committee" on which the factual dispute focuses in the QVMC medical staff, 

### Mr. Merred declares that both investigations were conducted by QVMC's Boardor its staffor agents. In short, Mr. Merred's declaration not only fails to resolve the factual question positedby the Supreme Court, it bringseven more uncertainty to it. His conclusory statements on the issues noted above (for the mostpart, not factual assertions at all) also contradict other declarations filed by Plaintiff, such as the declaration ofGlenda Bishop that both investigations were conducted pursuant to Article VIII. Ms. Bishop declares that Plaintiffwas advised at the time that the investigations were being conducted pursuant to Article VIII, while Mr. Merred declares that he advised Plaintiffthe investigations were being conducted under both authorities. CP at 788. In short, the trial court ruled that genuine issues ofmaterial fact remained as to whetherRCW4.24.250 orRCW 70.44.062 exempted from public disclosure the records sought by Cornu-Labat. The trial court also certified that its order denying summaryjudgmententailed a controlling question oflaw that engenders legitimate differences ofopinion and immediate review by this court ofthe question could advance the ultimate termination ofthe litigation. On June 26, 2014, this court's commissioner granted QVMC's motion for discretionary review. Commissioner's ruling, Cornu-Labat

### v. Hosp. Dist. # 2, No. 32436-2-II1 (Wash. June 26, 2014). LAW AND ANALYSIS We note that our concurring brother wishes to summarily dispose ofthis case on the ground that discretionary review was improvidently granted. We agree that review

11No. 32436-2-111 Cornu-Labat v. Hosp. Dist. #2

should not have been granted for the reasons stated in the concurrence. We also agree thatthis court'sruling that discretionary review was improvidently granted would be the better and more convenient method ofdisposing ofthe case. Nevertheless, we question

our authority to avoid discretionary review under the circumstances. Our court commissioner granted discretionary review. RAP 17.7 reads, concerning commissionerrulings: An aggrieved person may object to a ruling ofa commissioner or clerk, including transfer ofthe case to the Court ofAppeals under rule 17.2(c), only by a motion to modify the ruling directed to thejudges ofthe court served by the commissioner orclerk. The motion to modify the ruling must be served on all persons entitled to notice ofthe original motion and filed in the appellate court notlaterthan 30 days after the ruling is filed. RAP 17.7 suggests that a commissioner's ruling, including a ruling granting discretionary review, is final unless challenged within thirty days. Gaston Cornu-Labat did not challenge our commissioner's grant ofdiscretionary review. Therefore, we base our decision on another ground. QVMC asks this reviewing court to reverse the trial court and grant it summary judgment. Despite not renewing a motion below, Gaston Cornu-Labat also asks this appellate court to grant himjudgment as a matter oflaw. We decline both parties' request. We hold that, underthe law ofthe case, the Supreme Court intended for the trial court to resolve the case by resolving facts after a trial. The court specificallyremanded

12 

# lNo. 32436-2-II1 Cornu-Labat

### v. Hosp. Dist. #2

the case because ofmaterial questions offact as to whether one orboth ofthe PRA exemptions shielded the records soughtby Cornu-Labat. The law ofthe case is a doctrine that derives from both RAP 2.5(c)(2) and

common law. Roberson 

### v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). This multifaceted doctrine means different things in different circumstances. Lutheran Day Care 

### v. Snohomish County, 119 Wn.2d 91, 113,829P.2d 746 (1992). In its most

common form and the form in which we apply the tenet in this appeal, the law ofthe case doctrine stands for the proposition that, oncethere is an appellate holding enunciating a principle oflaw, that holdingwill be followed in subsequent stages ofthe same litigation. Lutheran Day Care 

### v. Snohomish County, 119 Wn.2d at 113 (1992) (citing 15 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: JUDGMENTS 

### § 380, at 55-56 (4th ed. 1986». Stated differently, when a prior appeal determined the applicable law, the law ofthe case doctrine ordinarily precludes redeciding the same legal issues in a subsequent appeal. State 

### v. Worl, 129 Wn.2d 416,425,918 P.2d 905 (1996); Sambasivan 

### v. Kadlec Med. Ctr., 184 Wn. App. 567, 576, 338 P.3d 860 (2014). In all ofits various formulations the doctrine seeks topromote finality and efficiency in thejudicialprocess. Roberson 

### v. Perez, 156 Wn.2d at 41 (2005); see also 5 AMJUR.2DAppellateReview 

### § 605 (1995). The courts apply the doctrine in orderto avoid indefinite relitigation ofthe same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision ofthe matter at issue, and 13No. 32436-2-III Cornu-Labat

### v. Hosp. Dist. #2

to assure the obedience oflower courts to the decisions ofappellate courts. State v. Harrison, 148 Wn.2d 550,562,61 P.3d 1104 (2003); 5 AMJUR.20AppellateReview 

### § 566 (2015). Contrary to the comment in Roberson 

### v. Perez, 156 Wn.2d at 41, RAP 2.5(c)(2) did not create the law ofthe case doctrine, but rather restricts the tenet. RAP 2.5 reads: 

### (c) Law ofthe 

### Case Doctrine Restricted. The following provisions apply ifthe same case is again before the appellate court following a remand: (1) Prior Trial CourtAction. Ifa trial court decision is otherwise properly before the appellate court, the appellate court may at the instance ofa party review and determine the propriety ofa decision ofthe trial court even though a similar decision was not disputed in an earlierreview ofthe same case. (2) PriorAppellate CourtDecision. The appellate court may at the instance ofa party review the propriety ofan earlier decision ofthe appellate court in the same case and, wherejustice would best be served, decide the case on the basis ofthe appellate court's opinion ofthe law at the time ofthe laterreview. By using the term "may," RAP 2.5(c)(2) is written in discretionary, rather than mandatory, terms, such that its restriction ofthe doctrine is optional. Folsom 

### v. County of Spokane, 111 Wn.2d 256,264,759P.2d 1196 (1988). RAP 2.5(c)(2) codifies at least two historically recognized exceptions to the law ofthe case doctrine that operate independently. Roberson 

### v. Perez, 156 Wn.2d at 42 (2005). First, application ofthe doctrine may be avoided when the prior decision is clearly erroneous and the erroneous decision would work a manifest injustice to one party. FirstSmallBus. lnv. Co. of Cal.

v. lntercapital Corp. of Or. , 108 Wn.2d 324,333,738 P.2d 263 (1987). This common 14No. 32436-2-III Cornu-Labat 

### v. Hosp. Dist. #2

sense fonnulation ofthe doctrine assures that an appellate court is not obliged to perpetuate its own error. Roberson v. Perez, 156 Wn.2d at 42. Second, application ofthe doctrine may also be avoided on an intervening change in controlling precedent between trial and appeal. Roberson 

### v. Perez, 156 Wn.2d at 42. None ofthe exceptions to the law ofthe case dogma apply in this appeal. First,

even ifwe believed the Supreme Court's earlier decision constituted clear error, this lower appellate court lacks authority to declare a Supreme Court decision clearly

erroneous. Instead, we respect the Supreme Court's ruling as should the litigants. Second, the law with regard to the exemptions asserted by QVMC has not changed. We might decline to apply the law ofthe case ifone orbothparties introduced new, significant facts by declaration in support ofa renewed summaryjudgmentmotion. We agree, however, withthe trial court thatthe new declaration ofMehdi Merred presents few, ifany, new facts and only muddles the issues offact. Merred's second declaration, like most ofQVMC witness declarations, provides few details ofthe background ofthedispute and the committees fonned to address complaints about Gaston Cornu-Labat. Instead, the declarations employ conclusory words designed to support QVMC's legal contentions. Even assuming facts to beundisputed, different inferences may be drawn from the facts. A summaryjudgmentmotion should be denied ifthe evidence and inferences create any question ofmaterial fact. DeYoungv. Providence Med. Ctr., 136 Wn.2d 136, 15

### No. 32436-2-II1 Cornu-Labat v. Hosp. Dist. #2 

### 140,960 P.2d 919 (1998); Hough 

### v. Ballard, 

### 108 Wn. App. 272, 278, 31 PJd 6 (2001). The parties and the courts are best served by a full evidentiary hearing, during which witnesses are subject to cross-examination and the trial court may observe witnesses' demeanor. We note thatthe subject documents have not been presented to this court in

camera. We would be reluctant to decide the important legal issues without the opportunity to review the records. The trial court should be given the opportunity when addressing the exemptions to review the records in private. Many times the best way for

a court to accurately determine whatportions, ifany, ofpublic records are exempt from disclosure is by an in camera review ofthe records. Limstrom v. Ladenburg, 

### 136 Wn.2d 595,615,963 P.2d 869 (1998). The Supreme Court remanded the case on appeal because ofquestions offact. The doctrine ofthe law ofthe case is generally stated in terms offollowing 44a principle oflaw" or deciding a legal issue. The Supreme Court's ruling, upon which we rely in this appeal, may be more in the nature ofa holding than an announcement ofa legal principle. Nevertheless, the law ofthe case also applies to "decisions," "rulings," or "holdings" ofan appellate court. State v. Schwab, 

### 163 Wn.2d 664,672, 185 P.3d 1151 (2008); City of Camas v. Kiggins, 

### 120 Wash. 40, 44, 206 P. 951 (1922). An 

### early, butparallel, decision ofour high court is City of Camas v. Kiggins, 120 

### Wash. 40 (1922). The small city ofCamas prosecuted 

### J. P. Kiggins and

### J. K. McGill 16No. 32436-2-III Cornu-Labat 

### v. Hosp. Dist. #2

under a city ordinance. In an earlier appeal, the Supreme Court affirmed a denial ofthe defendants' motion to change venue from Camas police court to the Clarke County justice ofthepeace court. During the second appeal, the Supreme Court declared its earlier "decisions" involving venue to be the law ofthe case. 120 Wash. at 44. CONCLUSION We affirm the trial court's denial ofthe parties' renewed summaryjudgment motions and remand for trial. A majority ofthe panel has determinedthis opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

I CONCUR:

# f..n.~'~ .,<1".5. -

# ~Vr-<'f '

- Lawrence-Berrey, 

### J.

17

# I

No. 32436-2-111 BROWN, A.C.J. (concurring in result) - RAP 2.3(b)(2} permits discretionary review iftwo requirements are fulfilled: probable error and substantial alteration ofthe status quo as a result ofthe superior court decision. Considering the parties' briefing concerning the trial court's decision to deny summaryjudgment, Iwould conclude the requirements of RAP 2.3(b}(2) for accepting review were not met. The trial court's rulings do not render continued proceedings useless, substantially alter the status quo, or so limit the freedom of a party to act as to call for interlocutory review. See State v. Powell, 126 Wn.2d 244,257, 893 P.2d 615 (1995). Moreover, the trial court's well-articulated view that material facts remain for trial is aptly framed, not probable error, and consistent with the Supreme Court's remand order. Because I would hold discretionary review was improvidently granted and dismiss this review, I concur in the result.

# ~~At& Brown, A.C.J.