Wiley v. Rehak
| Decision Date | 29 March 2001 |
| Docket Number | No. 70008-7.,70008-7. |
| Citation | 143 Wash.2d 339,20 P.3d 404 |
| Parties | Leslie WILEY, Respondent, v. Frank REHAK, Dana Rehak, Defendants. Kevin Prueitt, Petitioner. |
| Court | Washington Supreme Court |
Krilich, La Porte & West, Dennis J. La Porte, Philip I. Brennan, Jr., Tacoma, for Petitioner.
Morse & Bratt, Ben Shafton, Vancouver, for Respondent.
This Court granted review of a Court of Appeals' decision (1) holding that Kevin Prueitt could not amend a notice for trial de novo following mandatory arbitration to add himself as a named party after the time for filing the notice had expired and (2) assessing attorney fees against Kevin Prueitt. The Court of Appeals' decision is consistent with our case law and should be affirmed.
The central facts in this case are undisputed. On September 22, 1995, Leslie Wiley was injured in a two-car collision in Cowlitz County, Washington. On June 9, 1997, she filed suit against Frank Rehak, the owner of the other car. On August 25, 1997, an amended complaint was filed adding Dana Rehak, the car owner's brother, as a defendant. Both Frank and Dana Rehak were represented by attorney Joseph Tucci, Jr. Tucci filed an answer on their behalf on September 19, 1997.
Discovery commenced, and Wiley learned that Frank Rehak had not been present when the collision occurred; Dana Rehak had been a passenger in the vehicle that was driven by Kevin Prueitt. On March 11, 1998, Wiley filed a second amended complaint adding Kevin Prueitt as a defendant. On May 18, 1998, the trial court dismissed Frank Rehak from the lawsuit without prejudice. On July 30, 1998, an answer was filed on behalf of Prueitt by Tucci, who represented all three men. In early October, Tucci had a reoccurrence of cancer. On October 15, 1998, Heidi Imhof was added as an additional attorney and defended the arbitration. Tucci died in January 1999.
The superior court transferred the case to mandatory arbitration. On November 18, 1998, the arbitrator filed the arbitration award. Prueitt was found to be 100 percent at fault. The arbitrator also found that Wiley was entitled to statutory attorney fees and costs. The arbitrator mailed the arbitration award to the parties on November 13, 1998. Both the award and the proof of service were filed with the court on November 18, 1998.
On November 23, 1998, the defense filed a notice for trial de novo with the court. The notice stated in pertinent part:
PLEASE TAKE NOTICE that FRANK REHAK and DANA REHA[sic], the defendants, requests [sic] a Trial de novo from the Arbitration Award filed on November 13, 1998, pursuant to MAR 7.1 and LMAR 7.1.
Clerk's Papers at 18-19. Wiley did not appeal. No notice for trial de novo was filed on behalf of Prueitt during the 20-day period.
On January 7, 1999, Wiley moved to strike the notice for trial de novo that was filed on behalf of the Rehaks; she sought entry of judgment on the arbitration award since the Rehaks were not aggrieved parties. Prueitt then moved to amend the notice for trial de novo to include himself.
On March 12, 1999, the trial court granted Prueitt's motion. It found that neither Frank nor Dana Rehak was an aggrieved party and, thus, they could not appeal from the mandatory arbitration award. Consequently, the court struck their names from the notice and found that Prueitt's name was inadvertently left off the notice due to a scrivener's error. The trial court also allowed the filing of the amended notice that contained Prueitt's name as the aggrieved party and allowed the amended notice to relate back to the date the Rehaks filed the original notice.
The Court of Appeals subsequently granted Wiley's motion for discretionary review. On June 16, 2000, the Court of Appeals, concluding the trial court lacked discretion to allow the untimely amendment, reversed and remanded for judgment on the arbitration award. The Court of Appeals also ruled that Wiley was entitled to attorney fees on appeal. Prueitt now seeks this Court's review.
"These mandatory arbitration rules apply to mandatory arbitration of civil actions under RCW 7.06." MAR 1.1. RCW 7.06.030 states that "[t]he supreme court shall by rule adopt procedures to implement mandatory arbitration of civil actions under this chapter." These mandatory arbitration rules, like any other court rules, are interpreted as though they were drafted by the Legislature and are construed consistent with their purpose. State v. Wittenbarger, 124 Wash.2d 467, 484, 880 P.2d 517 (1994). Applying this court rule to the facts is a question of law subject to de novo review on appeal. Kim v. Pham, 95 Wash.App. 439, 441, 975 P.2d 544, review denied, 139 Wash.2d 1009, 994 P.2d 844 (1999).
RCW 7.06.0501 provides that within 20 days after the arbitrator files his decision, any aggrieved party may file a written notice for appeal and notice for a trial de novo in the superior court. MAR 7.1(a)2 contains this provision and the procedures required to file a notice for trial de novo. In Nevers v. Fireside, Inc., 133 Wash.2d 804, 811-12, 947 P.2d 721 (1997), this Court held that Substantial compliance with the rule is insufficient. Id. at 815, 947 P.2d 721.
Nevers specifically required the aggrieved party to file both a notice for trial de novo and proof of service within 20 days. The Nevers rationale mandates strict compliance based on the plain, unambiguous language of the rule. The Court later held in Roberts v. Johnson, 137 Wash.2d 84, 93, 969 P.2d 446 (1999), that the strict compliance standard applies to MAR 6.2, governing the filing of an arbitrator's decision.
969 P.2d 446; Perkins Coie v. Williams, 84 Wash.App. 733, 737, 929 P.2d 1215 (1997).
In several cases, other parties have made mistakes that eliminated their respective rights to trial de novo. Nevers is an example. Also, in Pybas v. Paolino, 73 Wash.App. 393, 869 P.2d 427 (1994), the attorney for the respondents delivered a notice for trial de novo to a messenger service with directions to file it with the court. For inexplicable reasons, the notice was not filed before the 20-day deadline. On that basis, the Court of Appeals held that the requesting party was not entitled to a trial de novo. Id. at 405, 869 P.2d 427. In State v. Hofer, 86 Wash.App. 497, 942 P.2d 979 (1997), an attorney was delayed in filing the notice for appeal because he had suffered a head injury; nonetheless, the Court of Appeals held that the untimely filing precluded a trial de novo.
Prueitt claims that he was not included in the original notice for trial de novo due to a scrivener's error. He contends that the original notice for trial de novo is valid because it listed "defendants" as the parties seeking a trial de novo, which would necessarily include him. However, the notice used the word "defendants" to modify the names of Frank and Dana Rehak. Prueitt was not implicitly included in the notice. MAR 7.1 not only specifically requires an aggrieved party to file within 20 days, but it also requires the party seeking review to be named in the notice for trial de novo. Prueitt's name was not listed in a timely notice for a trial de novo.
This Court has previously stated that the word "shall" in the MARs makes the stated requirement mandatory.3 See generally Roberts, 137 Wash.2d at 90,
969 P.2d 446; Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wash.2d 621, 629, 869 P.2d 1034 (1994) (citing Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash.2d 439, 446, 842 P.2d 956 (1993)). The failure to name Prueitt in the notice for trial de novo is not an inconsequential error, but rather is a failure to strictly comply with the requirements.
The crux of Prueitt's argument is that substantial compliance with MAR 7.1(a) should be enough to obtain a trial de novo. Prueitt does not dispute that he failed to file the notice for trial de novo within the 20 day span; however, he argues this was an inconsequential error because Wiley knew there would be a trial de novo and no prejudice attached. Therefore, the Rehaks' notice for trial de novo should suffice. This argument is foreclosed by this Court in both Nevers and Roberts.
Prueitt argues that defense counsel's mistake in omitting Prueitt's name was an inconsequential error that can be cured through the Superior Court Civil Rules. He also argues that the Court of Appeals' unyielding approach to nonprejudicial errors is too strict and will have disastrous consequences if applied to all mistakes. He claims that the civil rules and common sense allow for the curing of nonprejudicial mistakes.
Civil Rule (CR) 4(h) and CR 60 allow the amendment of certain court documents; however, these rules do not apply to notices for trial de novo. Rather, CR 4(h) allows the amendment of the initial process and proof of service documents in a civil case, and CR 60 allows for the correction of clerical errors in judgments, orders, or other parts of the record.
In addition, once a case has been transferred to mandatory arbitration, the civil rules generally do not apply. MAR 1.3(b)(1) provides as follows:
Until a case is assigned to the arbitrator under rule 2.3, the rules of civil procedure apply. After a case is assigned to the arbitrator, these arbitration rules...
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