Watson v. Fenney, 89CA2077
| Decision Date | 11 October 1990 |
| Docket Number | No. 89CA2077,89CA2077 |
| Citation | 800 P.2d 1373 |
| Parties | Arnold WATSON d/b/a Outfitters West, Plaintiff-Appellee, v. Andrew G. FENNEY d/b/a Deer Valley Lodge and Deer Valley Estates, Defendant-Appellant. . A |
| Court | Colorado Court of Appeals |
Darrow & Helmsing, Gregg Helmsing, Delta, for plaintiff-appellee.
Yates & Davies, James A. Cleland, Durango, for defendant-appellant.
Opinion by Chief Judge STERNBERG.
The defendant, Andrew G. Fenney d/b/a Deer Valley Lodge and Deer Valley Estates, was the losing party in an arbitration proceeding. He appeals the order which dismissed his motion for a trial de novo and entered judgment on the arbitrator's award in favor of the plaintiff, Arnold Watson d/b/a Outfitters West. We reverse and remand.
Pursuant to C.R.C.P. 109.1, a mandatory arbitration proceeding was held on plaintiff's claim for breach of a written lease. The arbitrator awarded damages to the plaintiff and ordered each party to pay one-half of the arbitration fees. No mention was made of any date by which payment was to be made. Shortly thereafter, the plaintiff paid his share of the fees.
The defendant filed a timely demand for a trial de novo as required by C.R.C.P. 109.1(r) and § 13-22-405, C.R.S. (1987 Repl.Vol. 6A). The plaintiff moved to dismiss because the defendant's portion of the arbitrator's fee had not been paid. The defendant then paid his share of the fee approximately 85 days after the arbitrator's award was entered.
Thereafter, the trial court granted the plaintiff's motion to dismiss, ruling that failure to pay the arbitrator's fee "at least within sixty days after filing of the award, and possibly within thirty days of said filing ... defeats a party's right to demand a trial de novo." The court then ordered judgment entered in favor of the plaintiff on the arbitrator's award. This appeal followed.
The governing rules of civil procedure are as follows. C.R.C.P. 109.1(o ), in pertinent part, provides:
"(1) Compensation of arbitrators and all other fees and expenses of the arbitration shall be paid by the parties.
....
C.R.C.P. 109.1(r) provides:
By ruling that failure to pay the fee "defeats a party's right to demand a trial de novo " the trial court effectively treated the payment requirement of the rule as jurisdictional. We do not agree with this interpretation.
C.R.C.P. 109.1(r) specifies that the demand for a trial de novo must be filed "within thirty days after the filing of the arbitrator's award." There is no question but that that time limit was met here. On the other hand, C.R.C.P. 109.1(o )(3), relating to the payment of arbitrator's fees, contains no time period within which those fees are to be paid. Additionally, while the rule requires payment of fees "as a condition to proceed under trial de novo," there is no requirement in C.R.C.P. 109.1 that payment of the arbitrator's fees must be made within the time period for demanding a trial de novo. To read such a requirement into C.R.C.P. 109.1(o )(3) and 109.1(r) would be to rewrite these rules in a restrictive fashion.
Rules of statutory construction also apply to the interpretation of rules of procedure. International Satellite Communications, Inc. v. Kelly Services, Inc., 749 P.2d 468 (Colo.App.1987). Therefore, the cardinal rule that requires a court to ascertain legislative intent, see Ingram v. Cooper, 698 P.2d 1314 (Colo.1985), applies also to the interpretation of civil rules. And, when the language employed is plain and the meaning clear, it must be applied as written. Heagney v. Schneider, 677 P.2d 446 (Colo.App.1984).
Examining the language of the rules at issue, we note that, unlike the requirement for filing a demand for trial de novo, no specific language requires payment of the arbitrator's fees within any specific time period. Had it been intended that there be a similar time restraint for payment of costs, the drafters of the rule could have so stated.
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