Danielle Wade v. Mark Rypien

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DANIELLE WADE,
Petitioner,
v.
MARK RYPIEN,
Respondent.
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No. 39172-8-III
UNPUBLISHED OPINION
STAAB, J. — Danielle Wade filed a complaint against her former partner, Mark
Rypien, alleging that Rypien engaged in acts of assault, battery, false imprisonment, and
intentional infliction of emotional distress for incidents dating back to 2008. She sought
damages under a unified continuing tort of domestic violence. Rypien did not file an
answer to the allegations. Instead, the parties jointly moved the superior court to enter an
order certifying a question of law under RAP 2.3(b)(4) as to whether this court should
recognize a new unified continuing tort of domestic violence that would allow Wade to
seek damages for actions occurring beyond the relevant statute of limitations for each
individual act. Without deciding any issues of law or fact pertaining to this case, the
superior court granted the stipulated motion and the parties sought discretionary review in
this court.
FILED
FEBRUARY 8, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 39172-8-III
Wade v. Rypien
2
Division Three’s court commissioner granted discretionary review, agreeing that
the certified issue satisfied the requirements of RAP 2.3(b)(4), noting that question
presented a controlling issue of law, there is no Washington precedent on the issue, and
immediate review would materially advance the termination of the litigation. The
commissioner’s decision did not remark on the lack of decision by the superior court.
After further review of RAP 2.3(b)(4), we conclude that discretionary review was
improvidently granted because the superior court has not decided the issue presented.
RAP 2.3(a) provides a method of seeking discretionary review of a superior court
decision that is not final. Specifically, the rule provides: “Decision of Superior Court.
Unless otherwise prohibited by statute or court rule, a party may seek discretionary
review of any act of the superior court not appealable as a matter of right.” RAP 2.3(a).
Under RAP 2.3(b)(4), a superior court may certify, or the parties may stipulate, “that the
order involves a controlling question of law as to which there is substantial ground for a
difference of opinion and that immediate review of the order may materially advance the
ultimate termination of the litigation.” (Emphasis added.)
While we agree that this case presents a controlling question of law, RAP 2.3
requires the superior court to first decide the issue before certifying the question for
discretionary review. Notably, the language in RAP 2.3(b)(4) is different from the
language in RAP 16.16(a), which allows the Supreme Court to “entertain a petition to
determine a question of law” from a federal court.

No. 39172-8-III
Wade v. Rypien
3
We dismiss the appeal as improvidently granted without prejudice to the parties,
and remand the case to superior court. After the superior court has decided the legal
issue, the parties are free to request discretionary review once again with this court or the
supreme court.
Dismissed.
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.
_________________________________
Staab, J.
I CONCUR:
_________________________________
Cooney, J.

No. 39172-8-III
LAWRENCE-BERREY, A.C.J. (concurring) — I agree with the majority’s
interpretation of RAP 2.3(b)(4). The rule requires the trial court to first enter an order
before we can review the issues the parties seek us to address. I concur to clarify an
additional point, which I deem important.
In this appeal, the parties asked us to address several issues, including what the
elements of the domestic violence tort might be, what the statute of limitations might be,
and whether the tort is a continuing tort for the purpose of recovering damages beyond
the limitations period. It often is said that the Court of Appeals is an error correcting
court. Here, we have no error to correct.
If the parties desire us to address the three issues outlined above, the trial court
must first address them. My point is this: the scope of our review is dependent upon the
scope of the trial court’s order.1
________________________________
Lawrence-Berrey, A.C.J.
1 The parties, understandably, will be disappointed by our decision and may view
our approach as pedantic. But unless the correct procedure is followed, review beyond
this court might be denied.