Shepler v. Terry's Truck Ctr., Inc.
| Decision Date | 29 December 2022 |
| Docket Number | 38469-1-III |
| Citation | 522 P.3d 126 |
| Parties | David SHEPLER, Respondent, v. TERRY'S TRUCK CENTER, INC., a Washington corporation, and Terry Rees, individually, Appellants. |
| Court | Washington Court of Appeals |
Geoffrey D. Swindler, Law Office of Geoffrey D. Swindler, 103 E Indiana Ave., Ste. A, Spokane, WA, 99207-2317, for Appellant.
Daniel Richard Hayward, Hayward Law, PLLC, 905 W Riverside Ave., Ste. 505, Spokane, WA, 99201-1099, Matthew Zachary Crotty, Riverside Law Group, PLLC, 905 W Riverside Ave., Ste. 404, Spokane, WA, 99201-1099, for Respondent.
OPINION PUBLISHED IN PART
Siddoway, C.J. ¶1 In 2018, the Washington Legislature amended RCW 7.06.050 to provide that a party wishing to appeal a civil arbitration award and request a trial de novo must sign the request. The Supreme Court, exercising its authority to adopt procedures to implement civil arbitration under chapter 7.06 RCW, likewise amended MAR 7.1 (also renaming it SCCAR 7.1) to provide that the request must be signed by the party.
¶2 The appellants here, Terry's Truck Center, Inc. and its owner and president, Terry Rees (collectively, the "truck center"), filed and served a request for trial de novo after the filing of an arbitration award in favor of David Shepler. It was signed by only their attorney. Mr. Shepler waited until more than 20 days after the filing of the award and then moved to strike the request for trial de novo because it had not been signed by the parties.
¶3 Mr. Rees promptly signed a second request for trial de novo, which was filed and served. After initially declining to strike the first, timely filed request, the trial court granted a renewed motion to strike following the filing of this court's Division One decision in Mangan v. Lamar , 18 Wash. App. 2d 93, 496 P.3d 1213 (2021), which held that a trial court properly struck an otherwise timely request for trial de novo where it was signed only by counsel.
¶4 We agree with Mangan and with Division Two's decision in Butler v. Finneran , 22 Wash. App. 2d 763, 516 P.3d 395 (2022), that if the amendments to RCW 7.06.050 and MAR 7.1 require a party to sign a request for trial de novo within 20 days of the filing of the arbitration award, then actual compliance, not substantial compliance, is required. On the question of whether the statutory and rule changes in fact require a party's signature to be provided within 20 days, we conclude that it is a necessary implication from other language in the statute and rule.
¶5 For that reason, and because denial of the defendants’ prearbitration summary judgment motion is not appealable, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶6 David Shepler sued his former employer, Terry's Truck Center, and its owner and president, Mr. Rees, for disability discrimination and wrongful discharge in violation of public policy. A year after the suit was commenced, the truck center moved for summary judgment dismissal of the complaint. The trial court denied the motion.
¶7 The case proceeded to civil arbitration. The hearing was conducted on September 10, 2020, the arbitrator signed an arbitration award in Mr. Shepler's favor on September 17, 2020, and the award was filed on September 21, 2020.
¶8 Two days later, the truck center filed and served a request for trial de novo. It was signed by only its attorney. Its appended certificate of service indicates it was served on opposing counsel by electronic mail.
¶9 Over a month later, Mr. Shepler moved to strike the request, arguing it did not comply with RCW 7.06.050(1) because it did not contain the signatures of Mr. Rees and an authorized representative of the corporation. As 20 days had passed since the arbitration award was filed, Mr. Shepler argued that the truck center had missed the statutory deadline for requesting trial de novo. On November 11, 2020, Mr. Rees sought to cure the defect by signing a second request individually and as the corporation's president. This second request was filed and served on opposing counsel on November 12, 2020. Counsel also filed a declaration from Mr. Rees affirming that the initial request for a trial de novo had been authorized by him. Counsel filed his own declaration explaining that he had relied on pre-2019 MARs that continued to appear on the Washington Courts and Spokane County Superior Court websites, and court forms on those websites that included only signature lines for counsel, not the party. See Clerk's Papers at 399-400, 404-12.
¶10 The trial court denied the motion to strike. Mr. Shepler petitioned this court for discretionary review, which our commissioner denied.
¶11 Eight months later, Division One published its decision in Mangan , in which it affirmed an order striking a request for trial de novo because the request was signed only by the party's lawyer and not the party. 18 Wash. App. 2d at 94-95, 496 P.3d 1213, 496 P.3d. Division One held this did not comply with RCW 7.06.050(1) because "[n]oncompliance is not substantial compliance." Id. at 97, 496 P.3d 1213.
¶12 Mr. Shepler renewed his motion to strike the truck center's request for trial de novo based on Mangan. The trial court, recognizing it was bound by Division One's decision, granted the motion. The truck center timely appealed the order granting the motion to strike. Its notice of appeal also sought to appeal the over-one-year-old denial of its prearbitration motion for summary judgment.
ANALYSIS
¶13 Before September 1, 2018, for counties like Spokane County with a population of more than 100,000, mandatory arbitration was required for all civil actions brought in superior court where the sole relief requested did not exceed $15,000—or, if approved by two-thirds of the superior court judges, where the sole relief requested did not exceed $50,000.
¶14 Beginning with the regular session of the legislature in 2017, it was proposed in House Bill 1128 to raise the arbitration limit that could be approved by a two-thirds vote of the judges to $100,000.1 The bill, which also made other changes to chapter 7.06 RCW, passed the legislature as Engrossed House Bill (EHB) 1128 in the regular 2018 session. LAWS OF 2018, ch. 36, §§ 1-9. In public testimony, defense lawyers, plaintiffs’ lawyers, and insurers explained that 70 percent or more of the cases subject to mandatory arbitration were personal injury cases, the vast majority being auto cases, or were small business disputes. See Public Hearing: HB 1128, et al., House Judiciary Committee, Washington State Legislature, (Jan. 18, 2017) at 16 min., 28 sec. to 16 min., 40 sec; 27 min., 10 sec. to 27 min., 25 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tv.org.2 The principal concern expressed by the public testimony was the increase in the jurisdictional limit. See Public Hearing, supra , at 15 min., 45 sec. to 58 min., 50 sec. Other changes were summarized in bill reports as making changes concerning the time periods for setting hearing dates, permitted discovery, arbitrator qualifications, and filing fees, and removing references to the word "mandatory," replacing "mandatory" with "civil" in some instances. H.B. REP. ON ENGROSSED H.B. 1128.
¶15 The change at issue in this case received a one sentence mention in the bill reports: "A written notice of appeal of a civil arbitration must be signed by the aggrieved party." H.B. REP. ON H.B. 1128, at 4; H.B. REP. ON ENGROSSED H.B. 1128, at 4; FINAL B. REP. ON ENGROSSED H.B. 1128, at 3. No legislative history has been brought to our attention that sheds light on the reason for this change, nor have we discovered any. It did change the result under then-existing law as decided in Russell v. Maas , 166 Wash. App. 885, 887, 272 P.3d 273 (2012), and Engstrom v. Goodman , 166 Wash. App. 905, 908, 271 P.3d 959 (2012). In both cases, an insured defendant apparently had qualms about their appointed lawyer's request for trial de novo following an arbitration award in favor of the plaintiff.3 The plaintiffs challenged the requests for trial de novo, arguing that under former MAR 7.1(a) (2001), the request for a trial de novo must be filed by an "aggrieved party," not the party's lawyer.4
¶16 This court observed in Russell :
The use of the term "aggrieved party" in MAR 7.1(a) is analogous to the use of the same term in RAP 3.1 : "Only an aggrieved party may seek review by the appellate court." This court regularly accepts appeals signed only by a party's attorney. We see no reason why the practice should be different with respect to the filing of a request for trial de novo, which is also a type of appeal.
Id. at 891, 272 P.3d 273. The court characterized the only proper question presented by Russell as a legal one: to which it said "[t]he answer ... is yes." Id.
¶17 In the appeals in both Engstrom and Russell , the court observed:
Once a party has designated an attorney to represent the party in regard to a particular matter, the court and the other parties to an action are entitled to rely upon that authority until the client's decision to terminate it has been brought to their attention. Haller v. Wallis , 89 Wn.2d 539, 547, 573 P.2d 1302 (1978). Absent fraud, the actions of an attorney authorized to appear for a client are generally binding on the client. Haller , 89 Wn.2d at 545-47 ; Rivers v. Wash. State Conference of Mason Contractors , 145 Wn.2d 674, 679, 41 P.3d 1175 (2002).
Engstrom , 166 Wash. App. at 916, 271 P.3d 959 ; and see Russell , 166 Wash. App. at 891, 272 P.3d 273.
¶18 EHB 1128 effected the new requirement that the party themself request a trial de novo by adding the underscored language to RCW 7.06.050(1) :
... 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. The notice must be signed by the party. Such...
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