Summary
In Houston, Judge Morgan, writing for a panel of judges from Division Two of this court, held that a certificate of mailing filed by a pro se litigant was sufficient proof of service under CR 5.
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No. 31216-6-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 00-2-00760-8. Judgment or order under review. Date filed: 11/21/2003. Judge signing: Hon. Edwin L Poyfair.
Counsel for Petitioner(s), T Chad Plaster, Attorney at Law, 1727 NW Hoyt St, Portland, OR 97209-2226.
Counsel for Respondent(s), James Martin Houston (Appearing Pro Se), 620 Cleveland Loop Road, Roseburg, OR 97470.
In this mandatory arbitration case, we are asked to reverse a trial court ruling that James Houston adequately proved service of a request for trial de novo. We affirm.
On February 22, 2000, Houston sued Dick Hannah Motors for breach of contract. The superior court sent the case to mandatory arbitration, and on October 30, 2002, the arbitrator made an award to Houston.
On November 12, 2002, Houston filed a written request for trial de novo. Acting as his own attorney, he also appended a 'certificate of mailing.' The request and certificate stated:
TO: The clerk of the court and all parties:
Please take notice that James M. Houston, Plaintiff, requests a trial de novo from the award filed on October 22, 2002.
Dated: November 7, 2002 /s/ James M. Houston, Plaintiff Pro Se
Certificate of Mailing:
I hereby certify that I did e-mail a copy and mail a true copy of this Request For Trial De Novo to Chad Plaster, attorney for the Defendant, on the 7th day of November, 2002.
Clerk's Papers at 33.
On May 19, 2003, Hannah moved to strike the request for trial de novo and for judgment on the arbitrator's award. Hannah acknowledged receiving a copy by e-mail but denied receiving a copy by regular mail. The trial court ruled for Houston, and a commissioner of this court accepted review.
A party who wants trial de novo must file, no later than 20 days after the arbitrator files the award, both (1) a written request for trial de novo and (2) 'proof that a copy has been served upon all other parties appearing in the case.' Here, Hannah claims (1) that Houston could not file a certificate of mailing, as opposed to an affidavit, because he is not licensed as an attorney; (2) that Houston's certificate was invalid because it omitted the address of Houston's attorney; and (3) that Houston's certificate was invalid because it was not accompanied by a signed copy of his request for trial de novo.
MAR 7.1(a); see also Nevers v. Fireside, Inc., 133 Wn.2d 804, 811, 947 P.2d 721 (1997).
I.
Hannah first claims that Houston did not comply with MAR 1.3(b)(2) and CR 5(b)(2)(B) because he filed a certificate of mailing rather than an acknowledgment or affidavit. MAR 1.3(b)(2) requires compliance with CR 5. CR 5(b)(2)(B) provides that:
Proof of service of all papers permitted to be mailed may be by written acknowledgment of service, by affidavit of the person who mailed the papers, or by certificate of an attorney. The certificate of an attorney may be in form substantially as follows:
CERTIFICATE
I certify that I mailed a copy of the foregoing to [John Smith], [plaintiff's] attorney, at [office address or residence], and to [Joseph Doe], an additional [defendant's] attorney [or attorneys] at [office address or residence], postage prepaid, on [date].
[John Brown] Attorney for [Defendant] William Noe
(First emphasis added.)
Houston responds that he was acting as an attorney in this particular case; that he was held to the standards of a lawyer in this particular case; and that he should be allowed to certify as an attorney in this particular case.
A party acting as his or her own attorney bears the burden of 'comply[ing] with all applicable procedural rules' to the same extent as if he or she were an attorney. We perceive no reason why a party bearing that burden should not receive the corresponding benefits as well, provided that such benefits are limited to the particular case. Here then, we conclude that Houston's proof of service was not inadequate merely because it was a certification.
City of Sunnyside v. Wendt, 51 Wn. App. 846, 848, 755 P.2d 847 (1988).
We note in passing that cases subject to mandatory arbitration are relatively small. We do not consider whether a party acting pro se in other, larger cases should receive the same benefits.
II.
Hannah next claims that even if Houston could file a certificate of mailing, the certificate filed here is inadequate because it omits the address of Hannah's counsel. In Manius v. Boyd, we 'reasonably implied' from the writer's employment and letterhead that the writer had mailed the document from her employer's address. In Garcia v. Crico of James Street Crossing L.P., Division One reasonably implied from the writer's having prepared and filed a pleading in King County that the writer had certified the pleading under the laws of the State of Washington. Likewise, we reasonably imply from Houston's statement that he mailed to Hannah's counsel, from his undisputed knowledge of Hannah's counsel's address, and from his having e-mailed to Hannah's counsel's e-mail address, that he also mailed to Hannah's counsel's regular-mail address.
111 Wn. App. 764, 770-1, 47 P.3d 145 (2002).
Wn. App. ___, 106 P.3d 765, 768 (2004).
III.
Hannah argues that Houston 'never served [Hannah] . . . with a copy of the signed request for trial de novo that he actually filed with the court.' But MAR 7.1(a) does not require that a signed copy be served; it requires only that a copy be served.
Br. of Appellant at 8.
None of these conclusions is affected by the Washington's Supreme Court's recent decision in Alvarez v. Banach. In that case, defense counsel's secretary declared that she had instructed a legal messenger service to deliver to opposing counsel a copy of the defendant's request for trial de novo. She said nothing about whether the request had actually been delivered. The Supreme Court held that personal service requires proof of receipt, that receipt is not presumed, and thus that receipt is not proved by declaring, without more, 'that a copy is to be delivered' by legal messenger. The Supreme Court distinguished service by mail, 'where receipt is assumed after three days,' and thus did not address any of the questions in issue here: (1) whether a litigant who is acting as his or her own counsel may file a certificate of mailing under CR 5(b)(2)(B); (2) whether a court may reasonably imply, from the fact that a certificate and request are mailed to a named attorney, the additional fact that they are mailed to the named attorney's office; and (3) whether a certificate of mailing must be accompanied by a signed copy of the request. Answering the first two questions affirmatively and the third negatively, we conclude that Houston's certificate was adequate although not ideal, and that the trial court did not err.
Wn.2d ___, 109 P.3d 402 (2005).
Alvarez, 109 P.3d at 404.
Alvarez, 109 P.3d at 404; see also Report of Proceedings at 36 (Hannah's counsel comments, 'the presumption is that [it] did get served').
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.