Roberts v. Johnson
| Decision Date | 07 January 1999 |
| Docket Number | 66694-6,Nos. 66529-0,s. 66529-0 |
| Citation | 969 P.2d 446,137 Wn.2d 84 |
| Court | Washington Supreme Court |
| Parties | Ronald A. ROBERTS, as assignee, Respondent, v. DeMay C. JOHNSON, Petitioner. Cynthia Nary, Appellant, v. Marcelle E. Hoey and John Doe Hoey, wife and husband, Respondents. |
Maltman, Reed, North, Ahrens & Malnati, Michael T. Schein, Seattle, for Petitioner.
Law Offices of Charles J. Brocato, Charles James Brocato, Gig Harbor, for Appellant.
Robert G. Casey, Vernon Harkins, Harold Dodge, Tacoma, for Respondents.
DeMay Johnson petitioned for review of a Court of Appeals decision affirming the dismissal of her request for a trial de novo following an arbitration award. In a direct appeal, Cynthia Nary sought review of a trial court order vacating a judgment on an arbitration award. We granted the petition for review and retained the direct appeal, consolidating the cases for oral argument.
In Roberts v. Johnson, the law firm of Eisenhower and Carlson sued DeMay Johnson, a former client, for legal fees. The matter proceeded to mandatory arbitration and was heard on October 16, 1995. Ronald Roberts, as assignee of Eisenhower and Carlson, prevailed. The arbitrator filed the award in Pierce County Superior Court on October 18, 1995, but, contrary to MAR 6.2, did not include with the filing proof of service of a copy of the award on each party. Johnson's attorney received a copy of the award on October 19, 1995, but that copy did not bear a date stamp indicating it had been filed with the Clerk of the Pierce County Superior Court. The Clerk's Papers do not indicate proof of service of the arbitration award has ever been filed.
On November 7, 1995, 20 days after the arbitration award was filed, and in keeping with MAR 7.1, Johnson filed a request for a trial de novo. That same day, she hired a legal messenger to serve a copy of her request on Roberts, but the messenger did not deliver the copy to Roberts until the next day, November 8, 1995. Because Johnson failed to comply with the requirement of MAR 7.1(a) that both the request for a trial de novo and proof of service be filed within 20 days of the filing of the award, Roberts moved to dismiss the request. The superior court granted the motion and entered judgment on the arbitration award.
Division Two of the Court of Appeals affirmed in an unpublisheddecision. Roberts v. Johnson, No. 20266-2-II, 1998 WL 19449 (Wash.Ct.App. Jan. 16, 1998). The court rejected Johnson's argument that the 20-day period for filing a request for a trial de novo was tolled because of the arbitrator's failure to file proof of service of the award. We granted review of that decision.
It was brought to our attention on the eve of oral argument that DeMay Johnson died in December 1997. Her son, Christopher J. Johnson, filed a motion requesting that he be substituted as Petitioner. With the exception of the attorney fees which led to this lawsuit, Mr. Johnson has paid all of the expenses associated with the case and its appeal, including posting $18,000 to obtain a letter of credit, in lieu of a supersedeas bond, for a stay of the judgment. As there is no personal representative, we agree Mr. Johnson should be substituted as Petitioner and grant the motion. See RAP 3.2.
In Nary v. Hoey, Cynthia Nary received an arbitration award in a dog bite case. On March 20, 1996, the arbitrator filed the award in Pierce County Superior Court. As in the Roberts case, the arbitrator failed to file proof of service of the award on the parties. On April 8, 1996, the Defendant, Marcelle Hoey, filed a request for a trial de novo but failed to comply with MAR 7.1(a) by also filing proof of service of the request. Nary moved to dismiss the request and asked that a judgment on arbitration award be entered. The trial court granted Nary's motion and entered judgment on the award.
Defendant Hoey then moved to vacate the judgment, claiming it was void because the arbitrator failed to file proof of service on the parties when filing the arbitration award. The trial court granted the motion, directing the arbitrator to file proof of service of the award within 14 days of the court's order. The trial court specifically found the 20-day period within which to request a trial de novo "did not commence" due to the arbitrator's failure to file proof of service of the award. Clerk's Papers at 69. We retained Nary's direct appeal. Proof of service of the arbitration award has since been filed, and Hoey has filed another request for trial de novo.
At issue in both cases is whether an arbitrator's failure to file proof of service of a mandatory arbitration award tolls the 20-day period for filing a request for a trial de novo.
RCW 7.06 authorizes mandatory arbitration of civil cases. RCW 7.06.030 states:
The supreme court shall by rule adopt procedures to implement mandatory arbitration of civil actions under this chapter.
The statute itself also specifies some requirements. RCW 7.06.050 provides:
Following a hearing as prescribed by court rule, the arbitrator shall file his decision and award with the clerk of the superior court, together with proof of service thereof on the parties. Within twenty days after such filing, any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. Such trial de novo shall thereupon be held, including a right to jury, if demanded.
If no appeal has been filed at the expiration of twenty days following filing of the arbitrator's decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions.
The Mandatory Arbitration Rules (MAR) implement the statute. MAR 6.2 reads, in relevant part:
Within 14 days after the conclusion of the arbitration hearing, the arbitrator shall file the award with the clerk of the superior court, with proof of service of a copy on each party.
The arbitrator may apply for an extension of time, but late filing "shall not invalidate the award." MAR 6.2. "Within 20 days after the arbitration award is filed with the clerk," an aggrieved party may file in court "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." MAR 7.1(a). If within 20 days after the award is filed no party has sought a trial de novo, then the prevailing party shall present to the court a judgment on the award of arbitration. A judgment so entered is the final judgment, which is not subject to appellate review and can only be set aside by a motion to vacate under CR 60. MAR 6.3.
In Nevers v. Fireside, Inc., 133 Wash.2d 804, 947 P.2d 721 (1997), a party filed a request for a trial de novo within the requisite 20-day period, but failed to accompany the request with proof of service, as required by MAR 7.1(a). We held the proof of service requirement is mandatory and must be obeyed in order to obtain a trial de novo. Justice Alexander, writing for a unanimous court, stated:
[T]he requirement in MAR 7.1(a) that proof of service of copies of the request for trial de novo be filed is also a prerequisite to obtaining a trial de novo. Our conclusion in that regard is dictated by the provisions of MAR 7.1, which make it clear that while one must timely file a request in order to obtain a trial de novo, mere filing of the request is not, by itself, sufficient. The request must, according to that rule, be filed "along with" proof that a copy of it was served on all parties to the case. ... Both steps must be taken, and on this the rule is unambiguous....
....
[T]he requirement that an aggrieved party timely file its request for trial de novo is linked to the requirement that there be a filing of proof of timely service of the request. One act, in short, is not complete without the other.
Nevers, 133 Wash.2d at 812-13, 947 P.2d 721.
We held our ruling was "dictated by the plain language" of the court rule but also observed that requiring strict compliance with the filing requirement effectuated the Legislature's intent, which was to reduce court congestion and delays in hearing civil cases. Nevers, 133 Wash.2d at 815, 947 P.2d 721.
Because they involve MAR 6.2, rather than MAR 7.1, these cases are not necessarily controlled by Nevers. However, our reasoning in Nevers is applicable here. MAR 6.2, like MAR 7.1(a), requires the filing to include proof of service. MAR 6.2 states within 14 days after conclusion of an arbitration hearing, "the arbitrator shall file the award with the clerk of the superior court, with proof of service of a copy on each party." To obtain a trial de novo, MAR 7.1(a) requires that, within 20 days after the arbitration award is filed, an aggrieved party must "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."
As applied in these cases, the Nevers rationale mandates strict compliance with the proof of service requirement when filing an award. Under the plain, unambiguous language of the rule, the two are linked; "[o]ne act, in short, is not complete without the other." Nevers, 133 Wash.2d at 813, 947 P.2d 721.
Roberts does not cite Nevers v. Fireside, Inc., which was decided after the Court of Appeals ruled in his favor. Nary, however, argues substantial compliance with MAR 6.2, a procedural rule, is sufficient where a party receives actual notice of the filing of an arbitration award. However, we specifically rejected the argument that substantial compliance with the filing requirement of MAR 7.1(a) was sufficient. Allowing substantial rather than strict compliance with the filing requirement in MAR 7.1(a) would subvert the intent of the Legislature by...
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