FILED 


AUG. 11,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, 


Division III 


IN THE 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 #2 GRANT COUNTY ) UNPUBLISHED OPINION 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 QUINCY VALLEY HOSPITAL, ) 

) 

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 public hospital district, QVMC is subject to the PRA. 

The Washington Supreme Court previously heard an appeal in this case and ruled 

there to be issues offact with regard to exemptions claimed by QVMC under the PRA. 

On remand, QVMC refiled a summary judgment motion, with a new declaration from its 

hospital administrator, asking for dismissal ofCornu-Labafs claims. The trial court 

denied the motion. We granted discretionary review. We now affirm the denial ofthe 
No. 32436-2-111 

Cornu-Labat v. Hosp. Dist. #2 

summary judgment motion based on the doctrine of the law of the case. We do not I 

~ address the merits of the appeal, but remand for trial. 

I FACTS 

From February 2007 to January 2010, QVMC employed Dr. Gaston Cornu-Labat 

as a surgeon, chief of medical staff, and, for a brief period, interim Chief Executive 

Officer (CEO). QVMC is a public hospital district. As such, QVMC is managed by an 

elected Board of Commissioners (the Board), which has "overall responsibility for the 

conduct ofthe hospital." Clerk's Papers (CP) at 135. The Board appoints a CEO "to act 

in its behalf in the overall management of the hospital." CP at 135. QVMC also has a 

medical staff with voting rights on subjects such as clinical privileges, practitioner 

performance evaluations, hospital policymaking, and policy enforcement. The hospital is 

small. At the time of the pertinent events in this case, the medical staff consisted of four 

physicians with voting rights and two nonvoting nurse practitioners. 

The QVMC bylaws governs the hospital's medical staff. Article VIII of the 

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 Behavior Among Healthcare 

Providers" (disruptive behavior policy) for addressing "egregiously disruptive behavior" 

and "disruptive behavior." CP at 273, 190. 

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Cornu-Labat v. 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-Labat that he 

smelled of alcohol 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 of the medical staff, and Medhi 

Merred, hospital administrator, started an investigation of Gaston Cornu-Labat's July 23 

conduct. Vance served as acting president for the investigation since Cornu-Labat was 

president of the medical staff at the time. On July 24, Vance and Merred, along with 

Glenda Bishop, QVMC's risk management director, interviewed Cornu-Labat and four 

other persons with knowledge of the intoxication allegations. At the beginning of CornuLabat's interview, Merred declared: 

This interview is conducted as part of an investigation conducted in 

accordance with the Medical Staff Bylaws, Article VIII, and the 

Administrative Policy "Dealing with 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 completing the inquiry, the investigators concluded insufficient 

evidence supported the allegation of intoxication. Cornu-Labat received a letter 

confirming that the intoxication investigation had been dismissed. 

While conducting the intoxication investigation, Mark Vance and Mehdi Merred 

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Cornu-Labat v. Hosp. Dist. #2 

received other complaints 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 staff meetings, 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-Labat pursuant to both Article VIII 

ofthe bylaws and the disruptive behavior policy. The staff authorized Mark Vance, 

Mehdi Merred, and board member Anthony Gonzalez to 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 

under the 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's public records request. 

Merred cited "RCW 42.56.240 which provides exemption from public inspection for 

specific investigative records compiled by agencies vested with the responsibility to 

discipline members of any profession." CP at 39. Merred did not identity which 

documents QVMC refused to produce under the exemption. 

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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 investigation pursuant to Article VIII of the bylaws and the 

disruptive behavior policy. The trio later also interviewed the complainants against 

Cornu-Labat. 

On August 6,2009, the QVMC investigation panel concluded its second inquiry 

and cleared Gaston Cornu-Labat of all charges of "inappropriate and unprofessional 

behavior." CP at 88. Nevertheless, in a letter to Cornu-Labat confirming dismissal ofthe 

allegations, QVMC expressed concern for Cornu-Labat and placed him on paid 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 that he could not return from paid leave until 

WPHP notified QVMC that he was fit for duty. Cornu-Labat challenged the objectivity 

of WPHP physicians and objected to the conditions of any evaluation by the organization. 

He refused to undergo an evaluation by WPHP. Cornu-Labat instead submitted 

independent psychiatric evaluations with providers of his own choosing. 

On August 11,2009, Gaston Cornu-Labat delivered his second public records 

request to QVMC. He demanded a copy of "all writings relating to any inquiries and/or 

investigations involving" himself. CP at 115. QVMC sent no written response to this 

second request. 

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No. 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 sought by Cornu-Labat in his two records request. The 

attorney argued the inapplicability of the 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-Labat had been released from employment 

because of his refusal to submit to an evaluation requested by the hospital. 

On January 5, 2010, Gaston Cornu-Labat submitted his third and final public 

records request. The request demanded copies of nine categories of records relating to 

QVMC's investigation of him and internal policies of the hospital. On January 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 or case law to support its assertion of a 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 

6 

No. 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 of a hospital's regularly 

constituted review committee engaged in evaluations of the competency and 

qualifications of a health care provider. RCW 70.41.200 requires that hospitals maintain 

a "coordinated quality improvement program" to improve the quality of health care and 

identify and prevent malpractice. RCW 70.44.062 blankets with confidentiality 

meetings, proceedings, and deliberations of a public hospital district's board of 

commissioners, its staff, or agents concerning the granting, denial, revocation, or 

restriction of the clinical or staff privileges of a physician. 

Both parties moved for summary judgment. On September 7, 2010, the trial court 

granted Gaston Cornu-Labat's motion for summary judgment 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 of Gaston 

Cornu-Labat. 

QVMC moved for reconsideration, and in a September 30,2010 ruling, the trial 

court pronounced that QVMC could not claim an exemption under RCW 4.24.250 

because the committees that investigated Gaston Cornu-Labat's conduct were ad hoc, 

rather than regularly constituted review committees. The trial court reasoned, in part, that 

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No. 32436-2-111 

Cornu-Labat v. Hosp. Dist. #2 

only peers could serve on a regularly constituted review committee, and, since 

nonphysicians served on the committees, RCW 4.24.250 did not afford an exemption to 

QVMC. Finally, the trial court ruled that RCW 70.44.062 did not apply because the 

statute created an exception to the Open Public Meetings Act, not the Public Records Act. 

QVMC appealed the trial court's September 7, 2010 order to this court. This court 

certified the case to the Supreme Court pursuant to RCW 2.06.030 and RAP 4.4. 

On April 11,2013, the Washington Supreme Court reversed the trial court's grant 

of summary judgment to 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 ofRCW 4.24.250. The Supreme Court determined 

that a regularly constituted review committee, as provided in the statute, could include 

nonphysicians. The court held that issues of material fact remain regarding whether the 

QVMC officials that investigated Dr. Cornu-Labat acted as agents of a regularly 

constituted committee under RCW 4.24.250, or as an ad hoc investigative team, when the 

officials acted under the auspices of the medical staff. The court also held that questions 

exist as to what review mechanism the hospital utilized in investigating Dr. Cornu-Labat. 

The trial court needed to determine ifthat mechanism was the disruptive behavior policy, 

which does not require participation of a regularly constituted committee, or article VIII, 

which does. 

8 

No. 32436-2-111 

Cornu-Labat v. Hosp. Dist. #2 

As a matter of first impression, the Supreme Court also held that RCW 70.44.062 

could provide an exemption under the PRA. In so ruling, our high 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 of commissioners, its staff, or agents. As this exemption had not previously 

existed, the Supreme Court again remanded for the trial court to determine its 

applicability since factual issues remained. The court noted that only the minutes of a 

formal meeting of the board's staff or agents qualified for the exemption. 

In the second paragraph of its opinion, the Supreme Court, in Cornu-Labat v. 

Hospital District No.2, wrote: 

The trial court granted summary judgment in favor ofDr. CornuLabat, holding none ofthe PRA exemptions invoked by QVMC applied. 

The court concluded that the records of a peer review committee that 

contained nonphysicians could not qualifY for the exemption in RCW 

4.24.250. This was error. We remand because questions ofmaterialfact 

remain as to whether the records at issue were prepared for a regularly 

constituted peer review body under RCW 4.24.250. 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" or the agents 

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No. 32436-2-III 

Cornu-Labat v. Hosp. Dist. #2 

of such a committee under RCW 4.24.250( 1). In addition, the trial court 

should decipher if any ofthe withheld records constitute proceedings of the 

board of a public hospital district or its staff or agents concerning the status 

of a 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 

withheld records are not exempt from disclosure. 

Cornu-Labat, 177 Wn.2d at 241 (footnote omitted). 

After remand and in October 2013, QVMC again moved for summary judgment. 

In support of its motion, the only new evidence submitted by QVMC was a declaration 

from Mehdi Merred. Gaston Cornu-Labat cross-moved for summary judgment. 

On December 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, conducted by Vance and Merred, 

and the second, conducted by Vance, Merred, and Gonzalez. That 

determination can be made in either of two ways-by trial ifthere is a 

genuine dispute as to that fact, or by summary judgment if there is no 

genuine dispute. If summary judgment is 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 pronouncement that which 

procedure was employed-Article VIII or the disruptive behavior policywould shed light on the factual dispute, Mr. Merred declares that both 

investigations were conducted under both authorities. In the face of the 

Court's pronouncement that the exemption may apply to one investigation 

and not the other, Mr. Merred declares that both investigations were 

conducted for the same, unitary purpose: to consider negative action 

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No. 32436-2-111 

Cornu-Labat v. Hosp. Dist. #2 

regarding Plaintiffs clinical privileges. In the face of the Court's 

designation that the "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 Board or its staff or agents. 

In short, Mr. Merred's declaration not only fails to resolve the 

factual question posited by the Supreme Court, it bringseven more 

uncertainty to it. His conclusory statements on the issues noted above (for 

the most part, not factual assertions at all) also contradict other declarations 

filed by Plaintiff, such as the declaration of Glenda Bishop that both 

investigations were conducted pursuant to Article VIII. Ms. Bishop 

declares that Plaintiff was advised at the time that the investigations were 

being conducted pursuant to Article VIII, while Mr. Merred declares that he 

advised Plaintiff the investigations were being conducted under both 

authorities. 

CP at 788. In short, the trial court ruled that genuine issues of material fact remained as 

to whether RCW 4.24.250 or RCW 70.44.062 exempted from public disclosure the 

records sought by Cornu-Labat. The trial court also certified that its order denying 

summary judgment entailed a controlling question of law that engenders legitimate 

differences of opinion and immediate review by this court of the 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). 

LA W 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 

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No. 32436-2-111 

Cornu-Labat v. Hosp. Dist. #2 

should not have been granted for the reasons stated in the concurrence. We also agree 

that this court's ruling that discretionary review was improvidently granted would be the 

better and more convenient method of disposing 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 commissioner rulings: 

An aggrieved person may object to a ruling of a 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 the judges ofthe 

court served by the commissioner or clerk. The motion to modify the 

ruling must be served on all persons entitled to notice ofthe original motion 

and filed in the appellate court not later than 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 him judgment as a matter oflaw. We decline both parties' 

request. We hold that, under the law ofthe case, the Supreme Court intended for the trial 

court to resolve the case by resolving facts after a trial. The court specifically remanded 

12 


l 
No. 32436-2-II1 

Cornu-Labat v. Hosp. Dist. #2 

the case because ofmaterial questions of fact as to whether one or both of the PRA 

exemptions shielded the records sought by Cornu-Labat. 

The law of the 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, 113,829 P.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, once there is an appellate holding enunciating a 

principle oflaw, that holding will be followed in subsequent stages of the 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 of the 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 of its various formulations the doctrine seeks to promote finality and 

efficiency in the judicial process. Roberson v. Perez, 156 Wn.2d at 41 (2005); see also 5 

AMJUR.2D Appellate Review § 605 (1995). The courts apply the doctrine in order to 

avoid indefinite relitigation ofthe same issue, to obtain consistent results in the same 

litigation, to afford one opportunity for argument and decision of the matter at issue, and 

13 

No. 32436-2-III 

Cornu-Labat v. Hosp. Dist. #2 

to assure the obedience of lower courts to the decisions of appellate courts. State v. 

Harrison, 148 Wn.2d 550,562,61 P.3d 1104 (2003); 5 AMJUR.20 Appellate Review § 

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 of the case doctrine, but rather restricts the tenet. RAP 2.5 reads: 

(c) Law of the Case Doctrine Restricted. The following provisions 

apply ifthe 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 

of a 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 ofthe 

same case. 

(2) Prior Appellate Court Decision. The appellate court may at the 

instance of a party review the propriety of an earlier decision ofthe 

appellate court in the same case and, where justice would best be served, 

decide the case on the basis ofthe 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, such that its restriction ofthe doctrine is optional. Folsom v. County of 

Spokane, 111 Wn.2d 256,264,759 P.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 of the 

doctrine may be avoided when the prior decision is clearly erroneous and the erroneous 

decision would work a manifest injustice to one party. First Small Bus. lnv. Co. ofCal. 

v. lntercapital Corp. ofOr. , 108 Wn.2d 324,333,738 P.2d 263 (1987). This common 

14 

No. 32436-2-III 

Cornu-Labat v. Hosp. Dist. #2 

sense fonnulation of the doctrine assures that an appellate court is not obliged to 

perpetuate its own error. Roberson v. Perez, 156 Wn.2d at 42. Second, application of the 

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 of the exceptions to the law of the case dogma apply in this appeal. First, 

even if we 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 of the case if one or both parties introduced 

new, significant facts by declaration in support of a renewed summary judgment motion. 

We agree, however, with the trial court that the new declaration of Mehdi Merred 

presents few, if any, new facts and only muddles the issues of fact. Merred's second 

declaration, like most of QVMC witness declarations, provides few details of the 

background ofthe dispute 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 be undisputed, different inferences may be drawn from the 

facts. A summary judgment motion should be denied if the evidence and inferences 

create any question of material fact. DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 

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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 that the 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 what portions, if any, of public records are exempt from 

disclosure is by an in camera review of the records. Limstrom v. Ladenburg, 136 Wn.2d 

595,615,963 P.2d 869 (1998). 

The Supreme Court remanded the case on appeal because of questions of fact. 

The doctrine of the law of the case is generally stated in terms of following 44a principle 

of law" or deciding a legal issue. The Supreme Court's ruling, upon which we rely in 

this appeal, may be more in the nature of a holding than an announcement of a legal 

principle. Nevertheless, the law of the case also applies to "decisions," "rulings," or 

"holdings" of an appellate court. State v. Schwab, 163 Wn.2d 664,672, 185 P.3d 1151 

(2008); City ofCamas v. Kiggins, 120 Wash. 40, 44, 206 P. 951 (1922). 

An early, but parallel, decision of our high court is City ofCamas v. Kiggins, 120 

Wash. 40 (1922). The small city of Camas prosecuted J. P. Kiggins and J. K. McGill 

16 

No. 32436-2-III 

Cornu-Labat v. Hosp. Dist. #2 

under a city ordinance. In an earlier appeal, the Supreme Court affirmed a denial of the 

defendants' motion to change venue from Camas police court to the Clarke County 

justice of the peace court. During the second appeal, the Supreme Court declared its 

earlier "decisions" involving venue to be the law of the case. 120 Wash. at 44. 

CONCLUSION 

We affirm the trial court's denial of the parties' renewed summary judgment 

motions and remand for trial. 

A majority of the panel has determined this 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 if two requirements are fulfilled: probable error and 

substantial alteration of the status quo as a result of the superior court decision. 

Considering the parties' briefing concerning the trial court's decision to deny 

summary judgment, I would 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.