(dissenting) — I respectfully dissent. Under the "law of the case doctrine" this court should not reverse its prior decision.
The majority correctly states that ”[w]here there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes *18redeciding the same legal issues in a subsequent appeal." Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988); RAP 2.5(c)(2). In accordance with RAP 2.5(c)(2), the court in Folsom stated that
[Reconsideration of an identical legal issue in a subsequent appeal of the same case will be granted where the holding of the prior appeal is clearly erroneous and the application of the [law of the case] doctrine would result in manifest injustice.
Folsom, at 264. The majority holds that "the circumstances of this case require reconsideration of the potential liability of the coemployees in order to avoid manifest injustice." Majority, at 14. I disagree. First, Folsom appears to require that the decision be both manifestly unjust and clearly erroneous. The majority does not claim that the decision in Eserhut v. Heister, 52 Wn. App. 515, 762 P.2d 6 (1988) (Eserhut I) was "clearly erroneous". Second, there is no authority supporting the proposition that an employee cannot be held liable in tort for intentionally interfering with his co-worker's business relationship with their mutual employer.
RAP 2.5(c)(2) allows this court to review the propriety of an earlier decision 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." (Italics mine.) The mere fact that the majority views the facts of this case differently than the court in Eserhut I does not render that decision manifestly unjust or clearly erroneous. The majority distinguishes the cases relied on in Eserhut I on their facts (Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430 (1987); Kyriazi v. Western Elec. Co., 461 F. Supp. 894 (D.N.J. 1978), modified, 473 F. Supp. 786 (1979)). However, it is the court's review of the law that must render the decision improper. Here there are no facts or circumstances which lead me to believe *19that "justice would best be served" by redeciding the legal issues of Eserhut I.
Reconsideration denied August 29, 1991.
Review denied at 118 Wn.2d 1009 (1992).