Faraj v. Chulisie

• Citation: 105 P.3d 36,125 Wash. App. 536
• Decision Date: 20 December 2004
• Docket Number: No. 52919-6-I.,52919-6-I.
• Parties: Ibrahim FARAJ and Huda I. Faraj, and the marital community composed thereof, Respondent/Cross-Appellant, v. Berhanu CHULISIE and `Jane Doe' Chulisie, and the marital community composed thereof, and Jatinder Gill d/b/a Stita Cab # 154, Sole Proprietorship, and John Does and Jane Does from 1 to 10, Appellant/Cross-Respondent.
• Court: Court of Appeals of Washington

105 P.3d 36

125 Wash. App. 536

Ibrahim FARAJ and Huda I. Faraj, and the marital community composed thereof, Respondent/Cross-Appellant, v. Berhanu CHULISIE and `Jane Doe' Chulisie, and the marital community composed thereof, and Jatinder Gill d/b/a Stita Cab # 154, Sole Proprietorship, and John Does and Jane Does from , Appellant/Cross-Respondent.

No. 52919-6-I.

Court of Appeals of Washington, Division 1.

December 20, 2004.

Publication Ordered January 20, 2005.

Steven V. Lundgren, Barbara J. Brady, Karr Tuttle Campbell, Seattle, WA, for Appellant.

Robert S. Green, Boris Rubenstein, Rubenstein Law Office, Bellevue, WA, for Respondent.

APPELWICK, J.

Following a personal injury arbitration, the arbitrator awarded Faraj damages. Chulisie filed a motion for a trial de novo. Faraj filed a motion to strike Chulisie's request, arguing that he had failed to fulfill the requirements of mandatory arbitration rule (MAR) 7.3(a). Chulisie appeals the trial court's denial of his motion for trial de novo. Faraj cross-appeals the trial court's denial of his request for a multiplier in its attorney fees award. We affirm the trial court on other grounds and deny Faraj's appeal on attorney fees.

FACTS

This appeal arises out of a personal injury lawsuit filed by Ibrahim and Huda Faraj (Faraj) against Berhanu Chulisie (Chulisie) and Jatinder Gill d/b/a STITA Cab # 154 (Gill). Faraj alleged that he was injured on June 12, 1999 by Gill's car, driven by Chulisie. The matter went to arbitration, and on April 17, 2003, the arbitrator filed an arbitration awarding Faraj damages of $23,944.79. The arbitrator filed proof that he had served the arbitration award on the parties on April 23, 2003.

On May 2, 2003, Chulisie filed a request for a trial de novo. Along with his request for a trial de novo, on May 2, 2003, Chulisie also submitted to the court a signed copy of the following Declaration of Service:

Sandra L. Maydew declares as follows:

I hereby certify that on the second day of May, 2003, I caused a copy of the foregoing Request for Trial de Novo and Jury Demand and this Declaration of Service to be served via ABC Legal Messenger on the following:

Boris Rubinstein Rubinstein Law Offices 874 — 140th Ave. N.E., Suite 100 Bellevue, WA 98005

I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

DATED in Seattle, Washington this 2nd day of May, 2003.

(signature) Sandra L. Maydew¹

The parties do not dispute that Chulisie served a copy of the request on Chulisie's attorney at the Rubinstein Law Offices on May 2, 2003. Chulisie did not, however, include a copy of the Rubinstein Law Office's "received" stamp with his request for trial de novo to the court. Nor did Chulisie serve Gill.

On June 27, 2003, Faraj filed a motion to strike Chulisie's request for trial de novo, arguing that Chulisie failed to satisfy the filing and service requirements of MAR 7.1(a). Faraj also requested attorney fees and costs of $17,617.50. The trial court granted Faraj's motion to strike, and awarded Faraj $8,425.00 in fees and $1,065.43 in costs.² The trial court denied Chulisie's motion for reconsideration.

Chulisie appeals the trial court's denial of his motion for trial de novo. Faraj cross-appeals the trial court's fee award, asserting that he should have been awarded the entire amount he requested.

ANALYSIS

I. Right to Appeal

Faraj asserts that Chulisie failed to follow RAP 2.3(b) and that failure precludes this court's review.

RAP 2.3(a) provides that a party may seek discretionary review of any act of the superior court not appealable as a matter of right, unless review is otherwise prohibited by statute or court rule. RAP 2.3(b) states:

Considerations Governing Acceptance of Review. Except as provided in section (d), discretionary review may be accepted only in the following circumstances:

(1) The superior court has committed an obvious error which would render further proceedings useless;

(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;

(3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or

(4) The superior court has certified, or that all parties to the litigation have stipulated, 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.

Following the trial court's denial of Chulisie's motion to reconsider, Chulisie filed a notice of appeal with this court. Chulisie did not file a motion to appeal to this court on a discretionary basis under RAP 6.2.³ Rather, he asserted that his notice of appeal was of right under RAP 2.2(a)(3). RAP 2.2(a)(3) states that a party may appeal "[a]ny written decision affecting a substantial right in a civil case which in effect determines the action and prevents a final judgment or discontinues the action." Chulisie's right to a trial de novo was a substantial right. The trial court's denial of Chulisie's motion for a trial de novo effectively discontinued the action in the case. Accordingly, Chulisie had a right to appeal under RAP 2.2(a)(3).⁴

II. MAR 7.1(a) Proof of Service Requirement

Chulisie assigns error to the trial court's order striking his motion for trial de novo.

The MAR apply to mandatory arbitration of civil actions under chapter 7.06 RCW. MAR 1.1. Interpretation of the MAR is a matter of law requiring de novo review. Nevers v. Fireside, Inc., 133 Wash.2d 804, 809, 947 P.2d 721 (1997).

RCW 7.06.050⁵ 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) states in pertinent part:

Within 20 days after the arbitration award is filed with the clerk, any aggrieved party not having waived the right to appeal may serve and file with the clerk a written request for a trial de novo in the superior court along with proof that a copy has been served upon all other parties appearing in the case. The 20-day period within which to request a trial de novo may not be extended.

Relying upon Nevers, Faraj asserts that Chulisie's failure to strictly comply with MAR 7.1(a) was fatal to his request for trial de novo.

In Nevers, a party filed a request for a trial de novo following an arbitration award. Nevers, 133 Wash.2d at 807,947 P.2d 721. Although the request for a trial de novo was filed within twenty days of the date on which the arbitration award was filed, proof of service to the opposing party was not filed within 20 days. Nevers, 133 Wash.2d at 807,947 P.2d 721. Nevers interpreted MAR 7.1(a) to require the filing of both "a written request for a trial de novo `along with proof' that a copy of the written request has been served on all [the other] parties appearing in the case" within 20 days of the arbitration award filing. Nevers, 133 Wash.2d at 811,947 P.2d 721. A "failure to strictly comply" with the requirement that proof of service be filed "within 20 days of the date the arbitration award is filed" therefore is fatal to a request for a trial de novo. Nevers, 133 Wash.2d at 811,947 P.2d 721.

However, Nevers did not articulate what constitutes sufficient proof of service. Chulisie asserts that under Alvarez v. Banach, 120 Wash.App. 93, 84 P.3d 278 (2004), his proof of service complied with MAR 7.1(a).

In Alvarez, an aggrieved party filed a timely request for a trial de novo following arbitration. Alvarez, 120 Wash.App. at 94, 84 P.3d 278. Along with his request for trial de novo, the party filed a declaration of delivery to opposing party. Alvarez, 120 Wash.App. at 95, 84 P.3d 278. The declaration stated:

Pursuant to the laws of the State of Washington, the undersigned certifies under penalty of perjury that on June 17, 2002, she sent via Legal Messenger Services to be delivered on June 18, 2002, copies of the following REQUEST FOR TRIAL DE NOVO AND FOR CLERK TO SEAL ARBITRATION AWARD, one [sic] the attorney of record in this matter as follows:

Mr. Raymond Bishop 127 SW 156th Street Seattle, WA 98166 DATED: June 17, 2002

Alvarez, 120 Wash.App. at 95, 84 P.3d 278. The opposing party "filed a motion to strike [the] trial de novo request, arguing that the declaration of delivery did not fulfill MAR 7.1's strict proof-of-service requirements." Alvarez, 120 Wash.App. at 95, 84 P.3d 278. The trial court struck the motion for a trial de novo. Alvarez, 120 Wash.App. at 98, 84 P.3d 278. On appeal, the respondent relied upon Carpenter v. Elway, 97 Wash.App. 977, 988 P.2d 1009 (1999), review denied, 141 Wash.2d 1005, 10 P.3d 403 (2000), and Newton v. Legarsky, 97 Wash.App. 375, 984 P.2d 417 (1999), review denied, 139 Wash.2d 1023, 994 P.2d 848 (2000) for the proposition that MAR 7.1(a) required proof of actual receipt of service. Alvarez, 120 Wash.App. at 101, 84 P.3d 278.

The Alvarez court rejected the respondent's interpretation of Newton and Carpenter as requiring proof of actual receipt of service. Alvarez, 120 Wash.App. at 101-102, 84 P.3d 278. The court explained that "Newton did not turn on the adequacy of proof of service because the arbitrator's failure to file his proof of service of notice of his arbitration award had tolled the time for requesting a trial de novo." Alvarez, 120 Wash.App. at 102, 84 P.3d 278. Alvarez also reiterated the time, place, and manner rule articulated in Carpenter. Alvarez, 120 Wash.App. at 102,

84 P.3d 278. Carpenter held that MAR 7.1 does not require proof of actual receipt of the delivered request for trial de novo, as long as there is proof of service showing "some evidence"...