Hudson v. Hapner, 35797-6-II.

• Citation: 146 Wn. App. 280,187 P.3d 311
• Decision Date: 08 July 2008
• Docket Number: No. 35797-6-II.,35797-6-II.
• Court: Court of Appeals of Washington
• Parties: Lea HUDSON, individually, Respondent, v. Clifford and "Jane Doe" HAPNER, individually and the marital community composed thereof; and Matthew Norton, a Washington corporation, Appellants.

187 P.3d 311

146 Wn. App. 280

Lea HUDSON, individually, Respondent, v. Clifford and "Jane Doe" HAPNER, individually and the marital community composed thereof; and Matthew Norton, a Washington corporation, Appellants.

No. 35797-6-II.

Court of Appeals of Washington, Division 2.

July 8, 2008.

Elizabeth Ann Jensen, Attorney at Law, Fircrest, WA, Marilee C. Erickson, Reed McClure, Seattle, WA, for Appellants.

Benjamin Franklin Barcus, Kari Ingrid Lester, Ben F. Barcus & Associates PLLC, Tacoma, WA, for Respondent.

ARMSTRONG, J.

¶ 1 We granted discretionary review to consider whether a party who requests a trial de novo after arbitration, obtains an unfavorable judgment at trial, and then successfully appeals that judgment may, before the second trial, withdraw his request for the trial de novo. Because the policy behind Mandatory Arbitration Rule (MAR) 7.3 requires us to favor the original arbitration award over continued litigation, we hold that the party may withdraw the request; therefore, we reverse the trial court's order striking the withdrawal of the trial de novo request and we remand for entry of judgment on Clifford Hapner's notice of presentment.

FACTS

¶ 2 In 1998, Clifford Hapner drove his vehicle into the rear of Lea Hudson's vehicle. Hudson sued Hapner, his wife, and his employer, Matthew Norton Corporation,¹ and the case went to mandatory arbitration. The arbitrator awarded Hudson $14,538 in damages, after which Hapner timely requested a trial de novo under RCW 7.06.050(1). In 2003, a jury awarded Hudson $292,298. Hapner appealed, arguing successfully that the trial court improperly excluded his expert's testimony. We remanded for a new trial. Hudson v. Hapner, No. 30619-1-II, 2005 WL 834433, at *5 (Wash.Ct.App. April 12, 2005).

¶ 3 After remand, Hapner obtained further discovery about Hudson's ongoing medical treatment and expenses arising from the accident. He then filed a notice of voluntary withdrawal of his request for trial de novo. He also filed a notice of presentment for the court to enter judgment on the arbitration award along with (1) interest, (2) attorney fees incurred by Hudson at trial and on appeal, and (3) taxable costs. Hudson moved to strike Hapner's withdrawal of his trial de novo request, arguing that Hapner had waived his right to withdraw his request. The trial court granted Hudson's motion, striking Hapner's presentation of judgment and withdrawal of request for trial de novo. We granted Hapner's motion for discretionary review.

ANALYSIS

¶ 4 Any party to an arbitration proceeding may file a request for a trial de novo in the superior court within 20 days after the arbitrator files his decision. RCW 7.06.050(1); MAR 7.1(a). If the party voluntarily withdraws his request for a trial de novo, the court may impose costs and reasonable attorney fees against him. RCW 7.06.060(1); MAR 7.3.² Hapner argues that under these rules, he had a right to unilaterally withdraw his request for a trial de novo at any time, conceding that in doing so he must pay Hudson's fees and costs. Interpreting the MARs is a matter of law that we review de novo. Manius v. Boyd, 111 Wash. App. 764, 766-67, 47 P.3d 145 (2002).

A. Unilateral Withdrawal

¶ 5 The parties first dispute whether a party who has requested a trial de novo may unilaterally withdraw that request. Hapner relies on Thomas-Kerr v. Brown, 114 Wash. App. 554, 559 n. 16, 59 P.3d 120 (2002), in which Division One held that MAR 7.3 provides an implied right to unilaterally withdraw a request for a trial de novo. Hudson responds that Thomas-Kerr was erroneously decided and that a party may withdraw his request for a trial de novo only with court permission. She reasons that because a trial de novo is treated as an appeal, see Singer v. Etherington, 57 Wash.App. 542, 546, 789 P.2d 108 (1990), we should import the court permission requirement from the Rules of Appellate Procedure (RAPs) and the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJs).³

¶ 6 Hudson's argument is not persuasive. First, the RAPs and RALJs apply only to those proceedings designated in RAP 1.1 and RALJ 1.1(a), respectively, and the present case does not fall within the scope of either rule. Second, had the Supreme Court and legislature intended a similar permission requirement for withdrawing a trial de novo request, they would have included such language in MAR 7.3. See City of Kent v. Beigh, 145 Wash.2d 33, 45, 32 P.3d 258 (2001) (where the legislature uses certain statutory language in one instance and different language in another, there is a difference in legislative intent). In addition, use of the word "withdraws" in MAR 7.3, which denotes an action by a party, instead of "dismissal" (an action by the court), demonstrates that the party who initiated the trial de novo has control of its continuation.

¶ 7 Furthermore, allowing the requesting party to withdraw is most consistent with the legislature's clear preference for resolving disputes through arbitration rather than through judicial proceedings. See Nevers v. Fireside, Inc., 133 Wash.2d 804, 809, 947 P.2d 721 (1997) (as with any other court rule, court construes the mandatory arbitration rules in accord with their purpose). The purpose of mandatory arbitration is to reduce court congestion of civil cases. Malted Mousse, Inc. v. Steinmetz, 150 Wash.2d 518, 526, 79 P.3d 1154 (2003). Specifically, MAR 7.3 is intended to encourage parties to accept the arbitrator's award by penalizing unsuccessful appeals from them. Walji v. Candyco Inc., 57 Wash.App. 284, 290, 787 P.2d 946 (1990).

¶ 8 As Division One stated in Do v. Farmer, 127 Wash.App. 180, 187, 110 P.3d 840 (2005), "MAR 7.3 uses both a stick and a carrot to accomplish its goal":

First, the rule threatens mandatory attorney fees for any party who requests a trial de novo but does not improve its position. Next, it offers the party an incentive to withdraw its request, with the possibility of avoiding attorney fees at the discretion of the [trial] court. Both the stick and the carrot are directed at the party requesting the trial de novo, attempting to influence its choices in the hope of reducing court congestion.

Do, 127 Wash.App. at 187, 110 P.3d 840. As Hapner states, "[He] chose the `carrot'" by withdrawing his trial de novo request. Br. of Appellant at 13.

¶ 9 In contrast, Hudson's proposal to nullify the original arbitration award and force a trial would accomplish the opposite of what the legislature intended: continued contribution to court congestion. Hudson does not have any right to a trial de novo merely because Hapner requested one; to the contrary, for Hudson to preserve her right to a trial de novo, she must have filed her own request within the 20-day period prescribed in MAR 7. 1. Thomas-Kerr, 114 Wash.App. at 560, 59 P.3d 120. We hold that Hapner had a right under MAR 7.3 to unilaterally withdraw his request for a trial de novo.

B. Time Limitation

¶ 10 Hudson argues nonetheless that even if MAR 7.3 authorizes unilateral withdrawal of a request for a trial de novo, the rule is ambiguous as to the procedures for doing so. She urges us to interpret the rule to include a time limit on withdrawals where a trial de novo has actually occurred. Hapner responds that his right to withdraw has no time limits.⁴

¶ 11 We are, like the Supreme Court in Ingram v. Dep't of Licensing, 162 Wash.2d 514, 526, 173 P.3d 259 (2007), wary of reading into rules restrictions that are not there or promulgating additional rules under the guise of interpreting them. (Citing Dep't of Licensing v. Cannon, 147 Wash.2d 41, 57-58, 50 P.3d 627 (2002)). We therefore will not add to or subtract from the clear language of a rule, even if we believe that the legislature intended something else but did not adequately express it, unless the addition or subtraction of language is imperatively required to make the rule rational. Ingram, 162 Wash.2d at 526, 173 P.3d 259 (quoting Cannon, 147 Wash.2d at 57, 50 P.3d 627).

¶ 12 Hudson cites general principles of fairness and efficiency for her proposal that a party may not withdraw his request for a trial de novo after "the" trial de novo has occurred. She argues that a contrary rule would allow a party to complete the trial, obtain a verdict, and then withdraw the request if he has not improved his position. This argument is flawed because it assumes that Hapner has received the benefit of his request for a trial de novo. He has not; although a trial has occurred, our reversal of the judgment returns the proceeding to the same posture as if it had not. See Weber v. Biddle, 72 Wash.2d 22, 28, 431 P.2d 705 (1967); cf. 15A Karl B. Tegland and Douglas J. Ende, Washington Practice: Civil Procedure § 67.18, at 514 (2007) (if trial court dismisses plaintiff's case but is reversed on appeal, case simply proceeds as if it were never dismissed). Hapner therefore did not use the trial de novo to "gamble on the outcome" by obtaining a binding verdict and then withdrawing if it is less favorable than the original arbitration award. Contrast Creso v. Philips, 97 Wash.App. 829, 831, 987 P.2d 137 (1999) (failure to file proof of service is waived unless raised before the trial de novo commences), aff'd by Haywood v. Aranda, 143 Wash.2d 231, 233, 19 P.3d 406 (2001). There is no outcome for Hapner to compare with the arbitration award because the verdict was vacated.

¶ 13 Nor should the fact that Hapner pursued the appeal affect his right to withdraw under MAR 7.3. Had he not prevailed, he would indeed be bound by the jury's verdict from the first trial. But it is simply not Hapner's fault that the first trial was tainted by a reversible error outside his control. If the error in the first trial had been Hapner's fault, we would not have reversed. See City of Seattle v. Patu, 147 Wash.2d 717, 720, 58 P.3d 273 (2002) (doctrine of invited error prevents parties from benefiting from an error they caused at trial).

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