(dissenting) — I believe that we should apply the decision of Division One in the parties’ first appeal as the law of the case. I therefore would affirm the jury verdict in the Simses’ favor.
It is helpful to begin with a general overview of the law of the case doctrine. It generally prohibits reconsideration of issues already decided in a prior appeal in the same case, if there have been no intervening, material changes in the facts. 5 Am. Jur. 2d Appellate Review § 605 (1995). The doctrine is not an “inexorable command” or a constitutional *935requirement; rather, it is a discretionary policy that reflects the courts’ practice of not reopening matters already decided. Id. “This rule of practice promotes the finality and efficiency of the judicial process.” Id.
In Washington, our Supreme Court has addressed the application of the law of the case doctrine by adopting RAP 2.5(c)(2). That rule provides that
if the same case is again before the appellate court following a remand:
(2). . . [t]he 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.
The Washington Supreme Court has observed that
[d]espite the apparent permissiveness of the language of the rule, this court and the courts of appeals in the years since the adoption of RAP 2.5(c) have adhered to the standards set forth in [its earlier opinions], requiring that an appellate court may reconsider only those decisions that were clearly erroneous and that would work a manifest injustice to one party if the clearly erroneous decision were not set aside.
State v. Worl, 129 Wn.2d 416, 425, 918 P.2d 905 (1996); see also Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 652, 935 P.2d 555 (1997) (“We have interpreted this rule to allow review of a previous decision when the decision is erroneous and when justice would best be served by review.”); and First Small Bus. Inv. Co. v. Intercapital Corp., 108 Wn.2d 324, 333, 738 P.2d 263 (1987).
At issue here is whether we should reconsider the 2000 decision of Division One of the Court of Appeals in this case. See Rodriguez v. Perez, 99 Wn. App. 439, 994 P.2d 874, review denied, 141 Wn.2d 1020 (2000). In Rodriguez, the court reversed a summary judgment that had dismissed the Simses’ and other plaintiffs’ claims against Douglas County and the city of Wenatchee. The court held that under *936chapter 26.44 RCW, the plaintiffs, including the Simses, had an implied claim for relief against the defendants for damages for negligent investigation of child abuse allegations. Id. at 445. The Court of Appeals therefore remanded the case for trial. At trial, a jury awarded the Simses $3 million in damages against Douglas County.
The majority now holds that the law of the case doctrine does not apply because, in its view, the first appeal did not decide the precise issue presented in this second appeal. Specifically, the majority characterizes the first appeal as deciding only whether Washington recognizes a claim for negligent investigation of child abuse. It characterizes the issue in this second appeal as being whether such an action is available to a parent who is accused of abusing a child other than his own and whose own child is not removed from the family home as the result of the allegation against the parent.
In my view, the majority divorces the holding in the first appeal from the facts of the case before the court in the first appeal. Those facts were never disputed and have not changed. The Simses were not charged with sexually abusing their own son. And their child was not removed from their home by the State, although the Simses claim that the State would have removed him if they had not acted first and sent him out of state to live with his grandmother.
The case cited by the majority is distinguishable because it concerns a situation in which the court in the prior appeal conditioned its holding on the party establishing a certain fact on remand. In Holst v. Fireside Realty, Inc., 89 Wn. App. 245, 258, 948 P.2d 858 (1997), the court stated that the law of the case doctrine did not apply there because it did not determine in the first appeal that the defendant was acting as the purchaser’s agent. Rather, the court held only that if the defendant was acting as the purchaser’s agent, it did not adequately disclose that fact to the plaintiff. Id. Here, the facts were already established at the time of the first appeal and have not changed.
*937In Columbia Steel Co. v. State, 34 Wn.2d 700, 706, 209 P.2d 482 (1949), cert. denied, 339 U.S. 903 (1950), also cited in the majority opinion here, the court considered in a second appeal the issue of whether the plaintiff was entitled to interest on an unauthorized tax it paid to the State. The first appeal had overturned a trial court’s decision to sustain the State’s demurrer to the plaintiffs complaint that the tax was not authorized by statute, and it did not address whether interest would be included in the award if the plaintiff prevailed. Here, the requisites for a negligent investigation claim are part and parcel of the decision as to whether such a claim is statutorily authorized.
The majority also relies upon RAP 2.5(a)(2) rather than RAP 2.5(c)(2). It is the latter subsection of the rule that addresses the question of when it is appropriate to apply the law of the case doctrine; RAP 2.5(a)(2) does not. It provides that a party may raise for the first time on appeal the opposing party’s failure to establish facts upon which relief can be granted. The cases the majority cites in application of that rule do not involve situations in which the party’s alleged failure to establish such facts are raised in a second appeal. See Mitchell v. John Doe, 41 Wn. App. 846, 848, 706 P.2d 1100 (1985); Gross v. City of Lynnwood, 90 Wn.2d 395, 400, 583 P.2d 1197 (1978).
This appeal being a second appeal, RAP 2.5(c)(2) therefore applies. Under RAP 2.5(c)(2), a court in a second appeal may reconsider those decisions that (1) were clearly erroneous and (2) would work a manifest injustice to one party if the clearly erroneous decision were not set aside. Worl, 129 Wn.2d at 425. I do not believe that either factor is present here.
Specifically, Division One’s decision in the first appeal was not clearly erroneous as applied to the Simses. In addition, because the county was dilatory in arguing that the claim for relief for negligent investigation is not available to the Simses, it would not be manifestly unjust to the county if the first decision is adhered to here. Indeed, if that *938decision is set aside, the Simses would suffer a manifest injustice.
(1) Clearly Erroneous.
Division One’s decision in the first appeal that the Simses had a claim for negligent investigation is not clearly erroneous. The decision is not contrary to prior case law. Indeed, the issue is one of first impression. Even the subsequent decision by the Washington Supreme Court in M.W. v. Department of Social & Health Services, 149 Wn.2d 589, 70 P.3d 954 (2003), is not directly on point. There, the court held that the Department of Social and Health Services’ (DSHS) negligent investigation must result in a harmful placement decision for a claim to lie. The Simses’ argument — that the claim exists if the effect of a negligent investigation is to cause a parent to remove his or her child from the home so as to avoid the State placing the child in foster care — is an extension of the holding in M.W. I do not think that the argument is frivolous. Reasonable minds may differ on the issue. Viewed in this context, Division One’s decision cannot be characterized as clearly erroneous.
(2) Manifest Injustice.
Revisiting Division One’s decision in the first appeal would not serve the interests of justice. See RAP 2.5(c)(2). The county did not rely upon the fact the Simses’ child was not the alleged subject of abuse in either the first appeal or in the trial on remand. As a consequence, the Simses had no reason to develop a record as to whether their position was essentially the same as those of the other plaintiffs, i.e., they did not attempt to offer evidence as to whether DSHS would have removed their son from their home had they waited to send him to live with his grandmother. Instead, the county waited until after the trial and after the jury awarded the Simses $3 million in damages to argue for the first time in this second appeal that the Simses’ situation does not fit within the statute.
*939In going forward with the trial, the Simses were justified in believing that the only unknown was whether a jury would conclude, based upon the evidence, that the county had conducted a negligent investigation. And they had no cause to reasonably anticipate that the question of their standing to sue under the statute in the first place was anything but settled. It would be unfair to the Simses to allow the county to raise that issue now, given its failure to do so earlier. Certainly, in these circumstances, the county cannot now complain that enforcement of the earlier decision would work an injustice when it completely failed to present in the first appeal, or even on remand, the arguments it now makes.
I therefore conclude that the law of the case doctrine should be applied here as a “rule of practice [that] promotes the finality and efficiency of the judicial process.” 5 Am. Jur. 2d Appellate Review § 605 (1995).
Reconsideration denied April 16, 2004.