                                                                                              FILED
                                                                                       COURT OF APPEALS
                                                                                           0IVI. I 1'a 11
                                                                                               S

                                                                                      2013 MAY 2 I    hM 10- 10

                                                                                       STi

                                                                                       OY



    IN THE COURT OF APPEALS OF THE STATE OF WASHINC

                                       DIVISION II

MICHAEL SEGALINE, a single person,                                  No. 42945 4 II
                                                                              - -


                             Appellant,

       V.




STATE OF WASHINGTON,
DEPARTMENT OF LABOR AND                                       UNPUBLISHED OPINION
INDUSTRIES,




       WORSWICK, C. . —
                  J    Michael Segaline appeals the summary judgment dismissal of his

negligent supervision and malicious prosecution claims against the Department of Labor and

Industries ( I), 42 U. . 1983 claim
           L & and of his C. §
                          S                            against dismissed defendant Alan Croft.

Segaline argues (1)genuine issues of material fact remain regarding malicious prosecution and

negligent supervision, and ( his § 1983 claim was timely under a continuing violation theory.
                           2)

We reverse summary dismissal of Segaline's malicious prosecution claim, affirm on all

remaining grounds, and remand for further proceedings.

                                             FACTS


       This case is before us for the second time. In Segaline's first appeal, we affirmed

summary judgment dismissal of most of     Segaline's   claims under the civil   immunity granted by
No. 42945 4 II
          - -



RCW     510.
        4.4. Segaline
         2                   v.   Dep't of Labor & Indus.,144 Wn. App. 312, 326- 27,P. d
                                                                            182 3
                                                                               3

    2008).We also affirmed summary judgment dismissal of
480 (                                                                 Segaline's   §claim against
                                                                                   1983

L I employee Alan Croft as time -barred. 144 Wn. App. at 332. The Supreme Court reversed as
  &

to the claims dismissed under RCW 4.4.holding that the statute does not give immunity to
                                  510,
                                    2

government agencies, but it affirmed    our   dismissal of the §   1983 claim. Segaline v. Dep't of

Labor &   Indus., Wn. d 467, 479, 238 P. d 1107 (2010).On remand, the trial court granted
                169 2                  3

summary judgment to L I on Segaline's remaining claims and denied Segaline's motion to
                      &

revive his §   1983 claim. Segaline appeals to us once again.

A.       Substantive Facts


         Segaline is a licensed electrician who routinely seeks permits for electrical work from

L I.
  & Several incidents at L I' East Wenatchee office in 2003 prompted L I to serve Segaline
                           &s                                          &

with a trespass notice, culminating in his arrest.

         The first incident occurred on June 9,when Segaline called L I' East Wenatchee office
                                                                      &s

about what he characterized as a " ogus"contractor deposit account at the agency. Segaline
                                 b

spoke to L I service coordinator Jeanne Guthrie. According to Guthrie, Segaline said he would
           &

hold L I employees accountable, that the issue could cost them their jobs, that he would
       &

institute legal proceedings, and that he would be bringing a tape recorder to the L I office. He
                                                                                    &


1
    RCW 4.4.10 provides, in pertinent part:
        52

         A person who communicates a complaint or information to any branch or agency
         of federal, state, or local government, or to any self -
                                                                regulatory organization that
         regulates persons involved in the securities or futures business and that has been
         delegated authority by a federal, state, or local government agency and is subject
         to oversight by the delegating agency, is immune from civil liability for claims
         based upon the communication to the agency or organization regarding any matter
         reasonably of concern to that agency or organization.

                                                     2
No. 42945 4 II
          - -



also alluded to something happening if he "w[ u]up dead," he did not finish the sentence.
                                           nd
                                            o           but

Clerk's Papers (CP)at 87 88. Although Segaline did not yell during this conversation, he talked
                         -

very loudly.

       On June 10, electrical program supervisor David Whittle called Segaline to attempt to

resolve the problems Segaline was having. Segaline agreed to meet with Whittle on June 19.

That same day, Segaline came to the L I office and told Guthrie that Whittle had better bring all
                                      &

the necessary paperwork to the upcoming meeting or else he should bring his resume and get

ready to join the private sector. Although Segaline seemed calmer than on June 9, Guthrie felt

that Segaline was trying to intimidate her and was trying to imply some kind of threat. The only

specific threat that Guthrie could name, however, was that Segaline stated he would record his

dealings with L I,
                & which Guthrie feared could lead to a confrontation if anyone objected to

being recorded. Guthrie also felt intimidated by Segaline just " eing [ ] CP at 100.
                                                               b      there."

However, Segaline did not raise his voice, his face did not get red, and he left of his own accord
after about five minutes.


       L I customer service specialist Alice Lou Hawkins was also present at the June 10
         &

encounter., described Segaline as "quite threatening in his verbal language, very aggressive
          She

and threatening and intimidating,red -faced, stating that one of us is going to go to jail,that I'
                                                                                                 d

better get an attorney."CP at 129. She also stated that Segaline was "eaning toward me across
                                                                     l

the counter very up in my face, very red -faced, yelling, very intimidating, very harassing."CP at

139.


        On June 13,there was a longer incident lasting about half an hour. Segaline came to the

L I office and tried to pay for a permit, but it had already been paid for out of his contractor
  &



                                                  3
No. 42945 4 II
          - -



deposit account. Segaline insisted that L I staff were required by law to accept his money,
                                          &

although L I staff assured him the money was not owed. According to Guthrie, although
           &

Segaline did not scream, he was talking very loudly and the confrontation was very disruptive.

Guthrie characterized Segaline's tone of voice as "yelling," she acknowledged that he did not
                                                           but

use profanity or call her any names. Segaline made no threatening hand gestures, but he

gesticulated at a clock to emphasize that L I was wasting his time.
                                            &

       The planned meeting with Whittle occurred at L I on June 19. L I Regional Health and
                                                      &               &

Safety Coordinator Alan Croft was also present. At the meeting, Segaline largely refused to

discuss how to resolve his conflicts with L I.
                                            & Instead, he repeatedly demanded to know under

what authority Croft and Whittle believed they could prevent him from recording the meeting,

although it was being recorded at the time. Segaline also repeatedly demanded to know what

branch of the government Whittle and Croft worked for,repeatedly stated they were not doing

their jobs,repeatedly accused them of breaking unspecified laws, and repeatedly insisted that

they contact the Attorney General. Segaline also repeatedly insisted on speaking with Guthrie.

Segaline eventually left the meeting to try to speak with Guthrie:

       According to Croft, Segaline did not yell at the June 19 meeting, but he was red faced
                                                                                         -

and tense, seeming as if he was " eady to explode."CP at 57. According to Guthrie, Segaline
                                r

yelled that he wanted to speak with her after he left the meeting.'Croft testified at his deposition

that he asked Segaline to leave the office at least twice. Croft called 911 when Segaline did not

leave; Segaline left just as the police arrived.

       After the June 19 meeting, Croft drafted a trespass notice, informing Segaline that he was

trespassed from the East Wenatchee L I offices. Croft listed " isruptive behavior, harassment
                                     &                       d



                                                   F
No. 42945 4 II
          - -



of staff and failure to follow instructions for contacting the department"as the basis for the

notice. CP at 19. The notice stated that it could be terminated on Whittle's written approval.

Shortly thereafter, Croft became aware that trespassing a member of the public from a

government office might prove controversial and might not be legal. Croft requested an opinion

from the Attorney General's Office on the issue, but he never received any guidance.

       The next incident occurred on June 30. Segaline came to the L I office, and Hawkins
                                                                     &

attempted to serve the trespass notice on Segaline. Segaline pushed the notice back toward

Hawkins and told her that L I had better get an attorney. According to Hawkins, Segaline
                            &

yelled during this incident. Police served Segaline with a copy of the notice later that day.

       On August 20, Segaline called L I regarding an emergency permit he needed. The next
                                       &

day, Segaline came into the office. Guthrie objected to Segaline's presence, but Segaline told

her that an electrical inspector at L I had given him permission to enter the building. Segaline
                                      &

was at the office a short time and then left. Guthrie later sent out an e mail reminding staff that
                                                                          -

Segaline was under a trespass notice and should not be allowed on the premises.

        On August 22,Segaline again returned to the L I office. An L I employee called 911,
                                                      &              &

and the police arrived while Segaline was still in the building..The police had been informed that

Segaline was causing a disturbance and refusing to leave. Police officers arrived to find Segaline

speaking on the phone with his attorney. The police escorted Segaline outside; Segaline insisted

that he had the right to enter the building any time he pleased. Segaline told the police that he

would keep returning to the office unless he received a call from the Attorney General. The

police arrested Segaline for trespass. Segaline was detained at the local jail before he posted




                                                  5
No. 42945 4 II
          - -



bail. According to Segaline's declaration, he was charged with a crime and the City of East

Wenatchee voluntarily dismissed the charges.
B.        Procedural Facts


          Segaline sued L I on August 8,2005, alleging ( )
                          &                            1 negligent infliction of emotional

distress, 2)
          ( intentional infliction of emotional distress, 3)
                                                          ( malicious prosecution, 4)
                                                                                   ( violation of

his civil rights, and ( )
                      5 negligent supervision. Segaline moved to amend his complaint to add

Croft    as a   defendant     to   a   42 U. .
                                          C.
                                           S         1983 civil rights claim on August 3,2006. Although the
                                                       §


trial court granted the motion to amend, it ruled that the amended complaint would not relate

back to the original complaint, finding no excusable neglect in failing to earlier join Croft as a

party.

          Croft subsequently moved for summary judgment. The trial court granted summary

judgment        on   the   grounds     that any §   1983 claim against Croft was time -
                                                                                      barred under the three-

year statute of limitations. The court ruled in the alternative that Croft was entitled to qualified

immunity.

          L I moved for summaryjudgment on Segaline's remaining claims. The trial court
            &

granted summary judgment on all claims on the grounds that L I was immune from suit under
                                                             &

RCW 4.4. The trial court also ruled that Segaline failed to prove his negligent infliction of
    510.
      2

emotional distress claim because his damages were not foreseeable. Segaline, 144 Wn. App. at

327.




2
    The record contains few details about the criminal proceedings against Segaline; the parties do
not dispute that Segaline was charged with a crime or that the charges were dismissed before
trial.



                                                               2
No. 42945 4 II
          - -



          Segaline appealed, and we affirmed on all grounds. Segaline, 144 Wn. App. at 332. The

Supreme Court granted Segaline's petition for review and reversed summary judgment on

Segaline's intentional infliction of emotional distress, negligent supervision, and malicious

prosecution claims because RCW 4.4.10 does not provide government agencies with any
                               52

immunity from suit. Segaline, 169 Wn. d at 472, 479. But the Supreme Court affirmed
                                    2
dismissal of      Segaline's   1983 claim against Croft because Segaline's cause of action accrued on
                               §

June 30, 2003, when he was first served with the trespass notice. Segaline, 169 Wn. d at 476.
                                                                                  2

Because Segaline's motion to amend fell outside the three year statute of limitations, the

amendment was untimely. Segaline, 169 Wn. d at 476. And Segaline had shown no excusable
                                        2

neglect allowing his amended complaint to relate back to the original complaint, making his §

1983 claim time -barred. Segaline, 169 Wn. d at 476 78.
                                         2          -

          On remand, L I renewed its motion for summary judgment on Segaline's remaining
                       &

claims: intentional infliction of emotional distress, negligent supervision, and malicious.

prosecution. Segaline replied in opposition to summary judgment, but he conceded that he had

not shown a claim for intentional infliction of emotional distress. Segaline also attempted to

revive his §      1983 claim by filing a motion entitled, Motion For Ruling of Timeliness of 42 USC .
                                                          "

1983 Action Against Alan Croft on Theory of Continuing Violation."CP at' 03.
                                                                       3

          The trial court granted summary judgment on Segaline's remaining claims. The trial
court further denied      Segaline's   motion to revive his §   1983 claim. The trial court explained in a

letter   ruling   that the untimeliness of the §   1983 claim was the law of the case, and it was " oo
                                                                                                  t

late"for Segaline to raise a continuing violation theory. CP at 426. Segaline appeals the trial

court's dismissal of his malicious       prosecution, negligent supervision and §    1983 claims.




                                                         7
No. 42945 4 II
          - -



                                              ANALYSIS


                                        I. STANDARD OF REVIEW


       We review an order granting summary judgment de novo. Briggs v. Nova Servs.,166

Wn. d 794, 801, 213 P. d 910 (2009).Summary judgment is appropriate where, viewing all
  2                  3

facts and resulting inferences most favorably to the nonmoving parry, the court finds no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Briggs,

166 Wn. d at 801; CR 56( ). "
      2                c A genuine issue of material fact exists where reasonable minds

could differ on the facts controlling the outcome of the litigation."Ranger Ins. Co. v. Pierce

County, 164 Wn. d 545, 552, 92 P. d 886 (2008).
              2           1     3

                                      II. MALICIOUS PROSECUTION


       Segaline argues that genuine issues of fact remain regarding his malicious prosecution

cause of action. We agree and reverse summary judgment in part on this claim.

       The elements of malicious prosecution are

       1) that the prosecution claimed to have been malicious was instituted or
       continued by the defendant; ( )that there was want of probable cause for the
                                     2
       institution or continuation of the prosecution; (3)that the - proceedings were
       instituted or continued through malice; 4)
                                               ( that the proceedings terminated on the
       merits in favor of the plaintiff,. were abandoned; and (5)that the plaintiff
                                        or
       suffered injury or damage as a result of the prosecution.

Clark v. Baines, 150 Wn. d 905, 911, 84 P. d 245 (2004).The parties do not dispute the first,
                       2                 3

fourth, or fifth elements: that L I instituted the prosecution, that the prosecution terminated on
                                  &

the merits in Segaline's favor or was abandoned, and that Segaline suffered injury or damage as

a result. Our focus, therefore, is whether there is a genuine issue of fact as to the second and

third elements:   probable   cause   and malice. We Bold there is.
No. 42945 4 II
          - -


A.     Probable Cause


       L I argues that there was probable cause for Segaline's arrest because he had violated
         &

the trespass notice and because his behavior was disruptive on the,day of his arrest. We

disagree.

       Segaline has established a prima facie case of lack of probable cause by showing that the

prosecution terminated in his favor. Rodriguez v. City ofMoses Lake, 158 Wn. App. 724, 730,

243 P. d 552 (2010).Additionally we note that the trespass notice was issued based on disputed
     3

facts regarding Segaline's behavior and that L I had reason to question the trespass notice's
                                               &

legal grounds. Thus, genuine issues of material fact remain as to whether L I had probable
                                                                            &

cause to institute proceedings against Segaline based on the trespass notice. Moreover, there is a

genuine issue whether Segaline was causing any kind of disturbance when the police arrived on

the scene and arrested him, making it a genuine issue whether L I had probable cause to
                                                                &

institute proceedings against Segaline based on his conduct on the day of his arrest. As such,
                                                                3
summary     judgment   on   this claim   was   inappropriate.

       As we explained,in Loeffelholz v. Citizensfor Leaders with Ethics and Accountability

Now (C.
     N.),
     E. . he test for probable cause in Washington varies as between an informant
      A t]
      L.                   "[

and a probable cause decision -maker."119 Wn. App. 665, 696 697, 82 P. d 1199 (2004)citing
                                                            -        3               (

Clark v. Baines, 114 Wn. App. 19, 40, 55 P. d 1180 (2002)Morgan, J.,
                                          3              (         concurring in part and


3
  Segaline argues that there was no probable cause because he could have raised various defenses
to a trespass charge. But the existence of a defense to criminal charges does not negate probable
cause for the purpose of malicious prosecution. Cf.Rodriguez, 158 Wn. App. at 730 (existence
of exculpatory evidence did not negate probable cause).The proper question on summary
judgment is whether genuine issues of material fact existed as to probable cause. Because they
did, summary judgment was inappropriate.


                                                         9
No. 42945 4 II
          - -



dissenting in part), d on other grounds by 150 Wn. d 905, 84 P. d 245 (2004)).
                   rev'                          2            3             An

informant is the party that supplies information on which a prosecution is based; the decision

maker is the party that determines whether those facts are an appropriate basis for the

prosecution. Clark, 114 Wn. App. at 40 41 (Morgan,J.,
                                       -            concurring in part and dissenting in

part).For an informant to have probable cause, he or she must have made to the probable cause
       "                                                                                -
decisionmaker ` full and fair disclosure, in good faith, of all the material facts known to him
        -     a

or her],' in alternative terms,'
       or,                    he or she must have `fully and truthfully communicate[d]
                                                                                     to the.

        maker] all the
decision-                facts and circumstances within his [
                                                            or                     Loeffelholz,
                                                                 her] knowledge[.] "'

119 Wn. App. at 697 (
                    quoting    Peasley v. Puget Sound Tug & Barge Co., Wn. d 485, 499-
                                                                     13  2

500, 125 P. d 681 (1942)alterations in original)).
          2              (

       Here, L I was the informant. Thus, probable cause turns on whether L I fully and
               &                                                            &

truthfully disclosed all of the material facts it knew. L I contends that there was probable cause
                                                          &

based on Segaline violating the trespass notice. But it is disputed whether the trespass notice,

which accused Segaline of disruptive behavior"and " arassment of staff," based on
                          "                       h                    was

truthful information. -
                      Segaline presented a declaration stating that he never yelled at,harassed,

threatened, or otherwise intimidated L I staff. At his deposition, Segaline admitted to accusing
                                       &

L I staff of not doing their jobs, to saying that they could be fired, and to saying that they
  &

needed to contact an attorney. He also admitted to being " ssertive," he testified that he was
                                                         a          but

all business"and never once raised his voice when dealing with L I staff. Taking the evidence
                                                                 &

in the light most favorable to Segaline, there is a genuine issue of fact whether his conduct was

disruptive or harassing. Moreover, there is a genuine issue of fact whether the trespass notice




                                                 10
No. 42945 4 II
          - -



was valid, and therefore a genuine issue whether L I truthfully disclosed all facts to the decision
                                                   &

maker.


         Moreover, the evidence shows that L I had reason to doubt the legal validity of the
                                             &

trespass notice. Soon after drafting the notice, Croft became aware that there might not be any

legal basis to trespass a member of the public from a public building. But it does not appear that

L I ever made the police or prosecutor aware of such misgivings. This, too, creates a genuine
  &

issue of fact whether L I fully disclosed the material facts to the decision maker.
                        &

         L I also argues that there was probable cause based on Segaline's disruptive behavior on
           &

the day of his arrest. But Segaline testified that, on the day he was arrested, he did nothing more

than come to the office and begin to fill out a permit. Once staff told him he was required to

leave, he contacted a lawyer on the phone. The police, however, received a report that Segaline

was " ausing a disturbance"in the L I lobby. CP at 35. But the only disturbance the police
    c                               &

observed on their arrival was that staff appeared to be afraid of Segaline and were standing well

away from him. Other than that, he was simply talking on the phone. There is a genuine issue of

material fact whether L I truthfully communicated all material information regarding Segaline's
                        &

conduct on the day of his arrest.

         After the police escorted Segaline outside, Segaline insisted he had the right to be in the

building and he refused to stay away without being told otherwise by the Attorney General. One

of the officers involved in Segaline's arrest declared that he was concerned about Segaline

returning to the office with a weapon because " e did not appear to be fully rational."CP at 36.
                                              h

But Segaline did not mention a weapon, and the only irrational behavior demonstrated by the

facts was Segaline's insistence on asserting what he believed to be his rights. The officer's



                                                  11
No. 42945 4 II
          - -



opinion that it was not fully rational of Segaline to assert his rights does not establish that L I
                                                                                                  &

had probable cause to have Segaline arrested or prosecuted.

        There are genuine issues of material fact as to whether the trespass notice was valid and

whether Segaline caused any disruption on the day of his arrest. As such, there is a genuine issue

of material fact whether L I had probable cause to institute proceedings against Segaline.
                           &

B.      Malice


        Segaline also argues that there are genuine issues of fact whether L I acted with malice
                                                                             &

in having him prosecuted. We agree.

        Malice may be inferred from lack of probable cause and from proof that the

investigation or prosecution was undertaken with improper motives or reckless disregard for the

plaintiff's rights."Youker v. Douglas County, 162 Wn. App. 448, 464, 258 P. d 60, review
                                                                          3

denied, 173 Wn. d 1002 (2011).Reckless disregard may be demonstrated by showing that the
              2

defendant entertained serious doubts. Youker, 162 Wn. App. at 464. Malice may also be

demonstrated by a lack of probable cause combined with affirmative acts disclosing at least
                                                       "

some   feeling of bitterness;animosity or vindictiveness towards the appellant.
                  `                                                                  Youker,162 - - -

Wn. App.at 464 (quoting Moore v. Smith, 89 Wn. d 932, 943, 578 P. d 26 (1978)internal
                                             2                  2             (

quotation marks omitted)).

        Here, taking the evidence in the light most favorable to Segaline, there are genuine issues

of material fact whether L I recklessly disregarded Segaline's rights. As we noted above, soon
                           &

after drafting the trespass notice, Croft became aware that there might not be any legal basis to

trespass a member of the public from a public building. Croft nevertheless did not attempt to

rescind the trespass notice.



                                                  12
No. 42945 4 II
          - -



       Moreover, Croft and Whittle's meeting with Segaline, taken in the light most favorable to

Segaline, shows that neither of them conducted a thorough investigation into the truth of the

accusations against Segaline. They could not explain to Segaline what he had done wrong or

what he should do differently in the future. Croft's drafting the trespass notice without a

thorough knowledge of Segaline's purportedly improper conduct, and his failure to consider

rescinding the order after finding out that it might have no legal basis, both permit the inference

that L I recklessly disregarded Segaline's rights.
       &

       In addition, there are genuine issues of material fact whether L I staff had feelings of
                                                                        &

bitterness, animosity, or vindictiveness against Segaline. An e mail by Croft after Segaline's
                                                                -

arrest informed staff that Segaline had the right to be on the premises, but Croft stated, I know
                                                                                           "

this is not the information that you, Lou, or I would want."CP at 226. This permits the

inference that Croft, who drafted the trespass notice, bore ill will toward Segaline and did not
                                                                -

want to see him return to the L I office. And the evidence, in the light most favorable to
                                &

Segaline, permits the inference that the complaints of disruption and harassment against Segaline

were false, based on bitterness, animosity, or ill-will,rather than the facts.

       Because there are genuine issues of fact regarding both probable cause and malice,

summary judgment was inappropriate on Segaline's malicious prosecution claim. We reverse

summary judgment on this cause of action.

                                   III. NEGLIGENT SUPERVISION


        Segaline also argues that genuine issues of material fact remain regarding his negligent

supervision claim. L I correctly responds that a negligent supervision claim is available only
                     &

when an employee acts outside the scope of employment. Because the parties agree that no L I
                                                                                           &



                                                 13
No. 42945 4 II
          - -



employee acted outside the scope of employment, there is no genuine issue of material fact as to

negligent supervision.
       Washington has adopted the elements of negligent supervision set forth in RESTATEMENT

SECOND)OF TORTS § 317 ( 965).
                      1     Niece v. Elmview Group Home, 131 Wn. d 39, 51 52,929
                                                               2          -

P. d 420 ( 997).The Restatement provides,
 2       1

       A master is under a duty to exercise reasonable care so to control his servant
       while acting outside the scope of his employment as to prevent him from
       intentionally harming others or from so conducting himself as to create an
       unreasonable risk of bodily harm to them, if
               a) servant
                the
                    i)upon the premises in possession of the master or upon which
                       is
                    the servant is privileged to enter only as his servant, or
                    ii) using a chattel of the master, and
                        is
               b) master
                the
                         i)
                          knows or has reason to know that he has the ability to control
                         his servant, and
                         ii)
                           knows or should know of the necessity and opportunity for
                         exercising such control.

            SECOND)OF TORTS §
RESTATEMENT (                            317 (1965)emphasis added).The first comment to section
                                                    (

317 makes absolutely clear that this cause of action applies only where an employee acts outside

the scope of employment: " he rule stated in this Section is applicable only when the servant is
                         T                                 -

acting outside the   scope of his                           SECOND)OF TORTS §
                                    employment."RESTATEMENT (                        317 cmt. a.


See also Briggs v. Nova Services, 135 Wn. App. 955, 966, 147 P. d 616 (2006), d,166
                                                              3             aff'

Wn. d 794 (2009)negligent supervision requires showing that employee acted outside scope of
  2              (

employment).




4
 L I also argues that Segaline's damages from negligent supervision were not foreseeable.
   &
Because it is undisputed that no employee acted outside the scope of employment, we do not
reach this issue.


                                                    14
No. 42945 4 II
          - -



       Segaline   relies   on   Gilliam   v.   Department of Social & Health Services, 89 Wn.App. 569,

950 P. d 20 (1998), argue that negligent supervision does not necessarily require that the
     2            to

employee act outside the scope of employment. But Gilliam.supports the rule that action outside

the scope of employment is required: "
                                     When an employee causes injury by acts beyond the

scope of employment, an employer may be liable for negligently supervising the employee."89

Wn. App. at 584 85. Nothing in Gilliam supports a negligent supervision action for conduct
                -

within the scope of employment.

       There is no genuine issue of material fact that any L I employee was acting outside the
                                                             &

scope of employment in relation to this case. We affirm summary judgment on Segaline's

negligent supervision claim.

                                                IV. 42 U. . 1983
                                                       C. §
                                                        S


       Segaline further argues that the trial court erred by denying his motion to revive his §

1983 claim against Croft. Segaline argues that his claim against Croft is not barred by the statute

of limitations because Croft's conduct amounted to a continuing violation. We disagree.

       Whether to allow Segaline to raise this issue was within the court's discretion,

under RAP 2. ( do not review issues raised for the first time on remand when the trial
          c)(
           1),
           5 we
court has not exercised its independent judgment and considered them. Moreover, although we

have discretion to revisit this claim on appeal under RAP 2. ( circumstances here do
                                                          c)(
                                                           2),
                                                           5 the

not justify such a revisit. We accordingly affirm the trial court's decision not to revive
Segaline's   §claim and do not address the merits of Segaline's continuing violation
             1983

argument.




                                                         15
No. 42945 4 II
          - -


A.      Segaline's Claim is Not Appealable Under RAP 2. (
                                                     c) (
                                                      5 1)
        The   parties dispute whether Segaline's     §claim was barred below under the
                                                     1983                                              law of

the case doctrine. The law of the case doctrine in this context refers to the rule that appellate

court decisions are binding on the trial court on remand. Roberson v.Perez, 156 Wn. d 33,41,
                                                                                  2

123 P. d 844 ( 005).But under RAP 2. (
     3       2                    c)(
                                   1),
                                   5

         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 of the same case."


Our Supreme Court held per curiam in State v. Barberio that "[ his rule does not revive
                                                            t]

automatically every issue or decision which was not raised in an earlier appeal. Only if the trial

court, on remand, exercised its independent judgment, reviewed and ruled again on such issue

does it become an appealable question."121 Wn. d 48, 50, 846 P. d 519 (1993).The
                                             2                2

permissive language of RAP 2. ( the trial court discretion whether to revisit an issue
                           c)(
                            1)
                            5 gives
not raised in an earlier appeal. Barberio, 121 Wn. d at 51.
                                                 2

         Here, although the law of the case doctrine permitted the trial court to address Segaline's

continuing violation theory, the trial court did not err by declining to do so. RAP 2. (
                                                                                    c)(
                                                                                     1)
                                                                                     5 gave

the trial court discretion to consider continuing violation because the Supreme Court expressly

declined to consider the issue. Segaline, 169 Wn. d at 476 n. . Moreover, as Segaline correctly
                                                2           8

notes, citing Moratti ex rel. Tarutis v. Farmers Ins. Co. of Wash.,162 Wn. App. 495, 501 02,
                                                                                         -

254 P. d 939 (2011), order that adjudicates fewer than all the claims in an action is not a final
     3             an

order and is subject to revision at any time. As such, the trial court's summary judgment order,

having been reversed in part,was not a final order. But simply because the superior court was
                  from   addressing continuing violation   does not   mean   that it   was   required to   do   so.
not   precluded
No. 42945 4 II
          - -



Because the superior court exercised its discretion to not consider the issue of continuing

violation, it is not an appealable issue properly before us under RAP 2. (
                                                                      c)(
                                                                       1).
                                                                       5

B.     The Circumstances Here Do Not Juste This Court's Consideration ofSegaline's Claim
        Under RAP 2.S( ) (
                     c 2)

       Segaline also cites RAP 2. (
                               c)(
                                2),
                                5 which allows an appellate court to review an earlier

appellate decision in the same case. Washington courts have interpreted RAP 2. (
                                                                            c)(
                                                                             2)
                                                                             5 as

permitting an appellate court to revisit a previous decision when ( ) " prior decision is clearly
                                                                  1 the

erroneous, and the erroneous decision would work a manifest injustice to one party;" (2)
                                                                                   and

where there has been an intervening change in controlling precedent between trial and appeal."

Roberson, 156 Wn. d at 42.
                2

        Segaline points to no controlling change in precedent here. Nor can he argue that our

decision was clearly erroneous. Moreover, Segaline would suffer no manifest injustice from our

declining to revisit our decision that his claim is time -barred. Segaline's failure to timely raise

an important legal theory was self inflicted, not a manifest injustice perpetrated by us.
                                   -

        Segaline   relies   on   Eserhut   v.   Heister, 62 Wn. App. 10, 812 P. d 902 (
                                                                              2       1991),
                                                                                           to   argue that
refusing to consider continuing violation would be a manifest injustice,but that case is

distinguishable. There, a previous appellate decision announced an erroneous rule that risked

perniciously expanding workplace tort liability, such that it would have been a manifest injustice
                                  L




to let the rule stand. 62 Wn. App. at 14. Here, in contrast, Segaline simply failed to raise a legal

theory before the trial court, which routinely bars consideration on appeal under RAP 2. (
                                                                                      a).
                                                                                       5

Principles ofjustice do not demand that Segaline be given a second chance to argue an issue that

he failed to timely raise.




                                                          17
No. 42945 4 II
          - -


                                       ATTORNEY FEES


       L I requests attorney fees and expenses " ursuant to RAP 18. ." RAP 18.1 requires
         &                                     p                  1 But

more than a bald request for attorney fees; argument and citation to authority are required.

Wilson Court Ltd. P'hip v. Tony Maroni's, 134 Wn. d 692, 710 n. , 952 P. d 590 (1998).
                   s                    Inc.,   2             4        2

We deny L I' request.
          &s

       We reverse the summary dismissal of Segaline's malicious prosecution claim, affirm

summary dismissal of all other claims, and remand for further proceedings.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW




                                                LE:3
