Wash. Court of Appeals published opinion — 318583.pub.pdf

of staff, but did not. 3 See LaMon v. Butler, 112 Wn.2d 193,200-01, 770 P.2d 1027 (1989)

(an appellate court may sustain a trial court's summary judgment upon any theory

established by the pleadings and supported by the proof, even if the trial court did not

3 Instead, Kadlec merely touched on that issue in a footnote, observing that
"'[s]hould this Court decide to reach the issue of whether hospital medical staff bylaws
create an enforceable contract, Kadlec maintains they do not.'" Br. ofResp't at 18
(emphasis added), It then provided a clerk's papers' citation to its briefing in the trial
court.

8
             

No. 31858-3-111
Sam bas ivan v. Kadlec Med. Ctr.

consider it). Dr. Sambasivan asks us to follow cases that have applied the law of the case

doctrine to refuse to consider questions that "might have been determined." Miller v.

Sisters oiSt. Francis, 5 Wn.2d 204,207, 105 P.2d 32 (1940) (citing Perrault v. Emporium

Dep't Store Co., 83 Wash. 578,145 P. 438 (1915)), overruled in part on other grounds by

Pierce v. Yakima Valley Mem. Hosp. Ass'n, 43 Wn.2d 162,260 P.2d 765 (1953).

Most of the decisions relied upon by Dr. Sambas ivan are distinguishable as

involving an appellate court's refusal in a second appeal to revisit an issue that was

squarely presented and decided in the first. E.g., Baxter v. Ford Motor Co., 179 Wash.

123, 125,35 P.2d 1090 (1934); Columbia Steel Co. v. State, 34 Wn.2d 700, 706,209 P.2d

482 (1949). Other second appeals that he cites followed a first appeal from the result of a

trial, making it reasonable to say, as to issues that could have been raised following the

first trial but were not, that "[t]he law of the case[,] as applied to the same facts, shown