¶17 (dissenting) — The majority concludes that the Washington State Patrol (State Patrol) is not privileged under Restatement (Second) of Torts § 265 (1977) and may be liable for conversion. Assuming a tort claim for conversion can be asserted, which I question, an invalid rule mandating impoundment does not necessarily mean that every impoundment constituted a conversion. Instead, because state law authorizes impoundments, if the State Patrol establishes in a given case that the trooper’s im-poundment of a vehicle in fact would have constituted the reasonable exercise of discretion required by RCW 46-.55.113, then the State Patrol committed no wrongdoing and should not be liable.
Madsen, J.*344¶18 Because each case would necessarily turn on its own facts, a class suit is improper in these circumstances. The only “common” issue is the existence of the invalid rule at the time of impoundment, and because liability would not depend upon the rule but instead on the facts peculiar to each case, the class does not satisfy CR 23. It does not meet the commonality and typicality requirements of CR 23(a) or the predominance requirement of CR 23(b)(3).
¶19 Finally, as noted earlier, I question whether a claim for conversion can be maintained at all. The State Patrol makes a compelling argument that the redemption procedures under RCW 46.55.120 preclude a common law tort claim.
ANALYSIS
¶20 The State Patrol cannot be liable for conversion solely because of former WAC 204-96-010 (2000). The principal question in this case is whether the plaintiff class can establish liability on the part of the State Patrol solely because impoundment occurred during the time when former WAC 204-96-010 was in effect. Although the rule required every vehicle to be impounded and its promulgation was therefore in excess of the State Patrol’s delegated authority, this invalidity says nothing about whether the impoundment in a specific case in fact violated RCW 46.55.113.
¶21 Invalidity of an agency rule does not render invalid, per se, any action taken under the rule. For example, in Baker v. Morris, 84 Wn.2d 804, 529 P.2d 1091 (1974), the court held that the Board of Prison Terms and Paroles (Board) exceeded its authority when it promulgated “Rule 7.040,” which required a vote of at least six board members to waive an inmate’s mandatory minimum term. The court held the rule invalid because it contravened former RCW 9.95.040 (1961), which provided for the concurrence of at least four board members to waive an inmate’s mandatory minimum. Baker, 84 Wn.2d at 808-09. However, because *345four members in fact voted to waive the inmate’s mandatory minimum term and thus satisfied the requirement of former RCW 9.95.040, the Board’s action constituted a valid waiver of the petitioner’s mandatory minimum term, regardless of the invalidity of the rule under which the Board acted.
¶22 Similarly, here, all impoundments of the class members’ vehicles occurred under the invalid rule, former WAC 204-96-010. But, as with the situation in Baker, if the actions of the troopers when impounding would have satisfied RCW 46.55.113 as a reasonable exercise of discretion, then their actions constituted valid impoundments under the statute. Thus, in every case, the question will be whether the State Patrol can establish that under the facts, the trooper would have reasonably exercised discretion to impound and the outcome was therefore the same as if the trooper had in fact exercised such discretion at the time of impoundment.
¶23 This court explained in In re Impoundment of Chevrolet Truck, 148 Wn.2d 145, 157, 60 P.3d 53 (2002), the case in which former WAC 204-96-010 was held invalid, that “[t]he legislature’s traditional and primary interest in authorizing impoundment of vehicles driven by suspended drivers is to prevent a continuation of the offense of driving with an invalid license.” If that goal can be reached without impoundment, for example, when another licensed individual is present and authorized to drive the vehicle and capable of doing so safely, then the State Patrol would be unable to show that discretion would reasonably have been exercised to impound. In every case, the question will be whether the State Patrol can establish that there were no reasonable alternatives to impoundment. In the two consolidated cases decided in Impoundment of Chevrolet Truck, 148 Wn.2d at 149, 151, for example, the vehicle owner was either present at the scene and could have taken possession of the vehicle safely or arrived at the scene during the stop. In both cases, therefore, the State Patrol would be unable to show that a trooper would reasonably have exercised dis*346cretion to impound. Thus, the impoundments in both cases were invalid because they violated RCW 46.55.113.
¶24 Because the trooper’s actions in each case must be assessed to determine whether impoundment would have occurred in the exercise of reasonable discretion, there should be no per se rule of liability for conversion based solely on impoundment during the time the invalid rule was in effect. Stated another way, there should be no strict liability based solely upon the fact that a vehicle was impounded at the time former WAC 204-96-010 was in effect.
¶25 The relevant inquiry is not whether the officer did in fact exercise discretion but rather whether under the circumstances a reasonable exercise of discretion would have led to impoundment. Because if so, then RCW 46.55.113 is satisfied and this is, in the end, the only relevant concern.
¶26 It also follows that a class suit is improper in this case because each individual case must turn on its own facts.6 The trial court certified the class under CR 23(a) and CR 23(b)(3) as
[Registered owners of motor vehicles that were impounded by the Washington State Patrol solely for Driving While License Suspended violations during the period of June 1, 2001 through December 19, 2002, who have not resorted to any other judicial or administrative method to challenge the legitimacy of the impound of their vehicle.
Clerk’s Papers (CP) at 13.
¶27 CR 23(a) contains threshold certification requirements that have to be met for a class suit to be proper: numerosity, commonality, typicality, and adequacy of representation. The commonality and typicality prerequisites mean that “[o]ne or more members of a class may sue or be *347sued as representative parties on behalf of all only if . . . there are questions of law or fact common to the class [and] the claims ... of the representative parties are typical of the claims ... of the class.” CR 23(a). As to the commonality requirement, there has to be only a single issue that is common to the class. Smith v. Behr Process Corp., 113 Wn. App. 306, 320, 54 P.3d 665 (2002); 1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3-10, at 274 (4th ed. 2002).
¶28 Here, although all impoundments would have occurred while former WAC 204-96-010 was in effect, the commonality requirement is not satisfied because resolution of each class member’s case does not depend merely upon the existence of the rule. Instead, each case depends upon whether the reasonable exercise of discretion would have led to impoundment in any event, or, stated another way, whether the State Patrol’s conduct complied with RCW 46.55.113 and its underlying purpose rather than the rule.
¶29 For essentially the same reasons that the commonality requirement is not satisfied, the typicality requirement is also not satisfied. Whether there was any wrongdoing that gave rise to a tort action depends on whether there was a violation of the statute, and whether a statutory violation occurred depends entirely on the particular facts in each case and whether they show that a reasonable exercise of discretion would have led to impoundment. If so, no statutory violation occurred.
¶30 Evidence in the record may be considered for purposes of determining whether class certification is proper, including whether the typicality requirement is met. Miller v. Farmers Bros. Co., 115 Wn. App. 815, 820, 64 P.3d 49 (2003); Oda v. State, 111 Wn. App. 79, 94, 44 P.3d 8 (2002). In his declaration, Mark Potter explains that on October 28, 2001, he was stopped for speeding and cited for driving with a suspended license. CP at 209. His mother was in the vehicle with him and had a valid driver’s license. Id. Mr. Potter further explains that on May 3, 2002, he was again *348stopped for speeding and cited for driving while his license was suspended. CP at 210. He pulled his “truck off the pavement where it was not obstructing traffic.” Id.
¶31 It is doubtful that the State Patrol could establish that discretion would reasonably have been exercised to impound Mr. Potter’s vehicles, particularly in the first instance. But in other class members’ cases where im-poundment occurred while former WAC 204-96-010 was in effect, this would not be the case. Without doubt, in some cases, the only reasonable exercise of discretion would have been to impound the vehicle. For this reason, Mr. Potter’s claims cannot be said to be typical of all members of the class certified by the trial court.
¶32 Other courts have held that class certification is inappropriate where individual facts peculiar to each class members’ claim would control the success or failure of the claim. For example, in Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994), owners presented an innocent-owner defense to property forfeiture and also argued unconstitutional delay in bringing forfeiture proceedings. The court held that the typicality requirement was not satisfied because the reasons for delay were too fact-specific for class certification and would require a fact-specific, case-by-case assessment. Id. at 323-24. In Polich v. Burlington Northern, Inc., 116 F.R.D. 258, 261-62 (D. Mont. 1987), the proposed class consisted of former railroad employees who had been discharged or transferred and who asserted claims of fraud and promissory estoppel against the railroad. The court found the commonality requirement had not been met because of the almost unique set of facts relating to each employee and the wide variance of proof of fraud necessarily presented. Id. Nor was the typicality requirement met, because the success or failure of each class member’s claims depended on individual facts peculiar to his or her own situation, despite the fact all brought claims of fraud and promissory estoppel. Id. at 262. In Kent-Chojnicki v. Runyon, 180 F.R.D. 237 (W.D.N.Y. 1998), postal service employees alleged that the postal service violated the *349Rehabilitation Act of 1973, 29 U.S.C. § 701, after they suffered work related injuries resulting in partial disability. The court held that neither the commonality or typicality requirements were satisfied because suit required individual factual determinations whether the employees were disabled within the meaning of the act, whether they were subjected to harassment by other workers and management, and whether their individual reassignments violated the act.
¶33 As in these cases, fact-based issues control this litigation, and the facts are particularized in each individual’s situation.
¶34 In addition to the threshold requirements of CR 23(a), a class must also satisfy one of the three subsections of CR 23(b). Here, the trial court certified the class under CR 23(b)(3), which applies when “[t]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Here, in each class member’s case, the individual issue is whether exercise of discretion as required by RCW 46.55.113 would have led to the same result of impoundment. Not only is this a different legal issue than the invalid rule and its impact, it is an issue that can be resolved only with respect to the particular factual circumstances of each case. Thus, there is neither a common legal issue nor a common factual issue that predominates over individual issues. For this reason, too, the class was improperly certified.
¶35 Finally, I question the availability of a tort claim in any event. The State Patrol contends that RCW 46.55.120 provides a comprehensive and exclusive remedy and precludes a claim for conversion. Under RAP 9.12, an appellate court reviewing a grant of summary judgment “will consider only evidence and issues called to the attention of the trial court.” The State Patrol did not argue exclusiveness of the statute when it moved for summary judgment.
*350¶36 Under RAP 1.2(c), the Rules of Appellate Procedure may be waived to serve the ends of justice. Deciding this issue at this stage of the proceedings would serve the ends of justice, providing, as it does, an obvious and easily resolved argument in support of the trial court’s grant of summary judgment. Further, a decision on this issue will answer not only tort claims for conversion but all other tort claims brought in the wake of Impoundment of Chevrolet Truck arising out of impoundments occurring while former WAC. 204-96-010 was in effect.
¶37 A statute will preclude a common law tort claim if the legislature so intended. See generally Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 61-62, 821 P.2d 18 (1991). RCW 46.55.120(1) governs redemption of impounded vehicles, and begins with the statement that “[v]ehicles . . . that are impounded” because the driver is driving with a suspended or revoked license “may be redeemed only under the following circumstances.” (Emphasis added.) The statute also states that “{a]ny person seeking to redeem an impounded vehicle ... has a right to a hearing in the district or municipal court for the jurisdiction in which the vehicle was impounded to contest the validity of the impoundment.” RCW 46.55.120(2)(b) (emphasis added).7 Thus, by its plain language, the statute provides that only the provisions in the statute may be employed to redeem an impounded vehicle, and redeeming an impounded vehicle includes a challenge to the validity of the impound. By its plain language, the statute provides that its procedures and remedies are the only recourse for an invalid impoundment, thus precluding a common law tort claim. The language of the statute strongly supports, if not commands, the conclusion that the statutory remedies are exclusive. See Wilmot, 118 Wn.2d at 55-58.
¶38 Further, the remedies in the statute are broad. At the conclusion of a hearing to determine the validity of *351impoundment, the court will decide whether the impoundment was proper and who is responsible for payment of fees. RCW 46.55.120(3)(c). If the impoundment is unlawful, then the registered and legal owners of the vehicle bear no impoundment, storage, or towing fees, any security must be returned or discharged as appropriate, and the agency or person authorizing the impoundment must bear these costs.8 RCW 46.55.120(3)(e). In addition, judgment is to be entered in favor of the registered and legal owners of the vehicle for the filing fee required for the impound hearing, as well as reasonable damages for the loss of use of the vehicle. Id. Moreover, as the State Patrol points out, if a hearing under the statute is timely sought, there will be no auction of the impounded vehicle, and thus no concern about damages arising from disposal of the vehicle at auction.
¶39 The comprehensiveness of the remedies available also indicates that the statutory remedies are exclusive. See Wilmot, 118 Wn.2d at 60-61. In Impoundment of Chevrolet Truck, for example, where the vehicle owners challenged impoundment at vehicle impoundment hearings pursuant to RCW 46.55.120, the court remanded both cases for determination of reasonable damages for the loss of use. 148 Wn.2d at 162. In one of the cases, the court also directed entry of judgment awarding compensation for impound and storage costs and the cost of the filing fee for the impound hearing, see RCW 46.55.120(3)(c), (e), and, in the other case, affirmed judgment on the impropriety of the vehicle impoundment. Impoundment of Chevrolet Truck, 148 Wn.2d at 162.
¶40 The express language and detailed provisions of RCW 46.55.120, including its remedies’ provisions, show the legislature’s intent to provide exclusive remedies and *352preclude a tort claim based on impoundment of a vehicle where a driver operated the vehicle while his or her license was suspended or revoked. I would therefore hold that a conversion action cannot be sustained and summary judgment in favor of the State Patrol should be affirmed on this alternate basis.
CONCLUSION
¶41 The correct holding in this case is that no conversion action in any form is appropriate because the statutory remedies in RCW 46.55.120 are exclusive and preclude any common law claims. The trial court’s grant of summary judgment in favor of the State Patrol should be affirmed on this alternate basis. However, assuming that an illegal impoundment can be sufficient to support a claim for conversion, if the State Patrol shows in an individual impoundment case that a reasonable exercise of discretion would have led to impoundment, then it committed no wrongdoing in violation of RCW 46.55.113 and should not be liable for conversion. Whether the statute was violated turns on a case-by-case, fact-specific analysis, and therefore the class does not satisfy the requirements for a class under CR 23(a) and (b)(3). Thus, at a minimum, the class should be decertified and whether RCW 46.55.113 was violated should be decided on its own facts in each case where impoundment occurred while former WAC 204-96-010 was in effect.
¶42 For these reasons, I dissent from the majority opinion.
Fairhurst and J.M. Johnson, JJ., concur with Madsen, J.
Reconsideration granted March 7, 2008. Case to be set for rehearing.
The State Patrol has not emphasized propriety of the class certification and instead seeks a ruling that a conversion claim in any form is precluded as a matter of law. Nonetheless, the issue of the propriety of a class action should be decided at this time to serve the interests of judicial efficiency and savings in time and costs to the parties. See RAP 1.2(c). On this record, the court can readily determine that a class action is improper.
Each of the consolidated cases decided in Impoundment of Chevrolet Truck, 148 Wn.2d 145, began with such a hearing.
If impoundment results from an alleged violation of RCW 46.20.342 or RCW 46.20.345 and the impoundment is determined to be improper, then the law enforcement officer who directed impoundment and his or her government employer will not be liable for damages if the officer relied in good faith and without gross negligence on the records of the Department of Licensing. RCW 46.55.120(3)(e).