Opinion
No. 60892-4-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-2-33486-1, Andrea A. Darvas, J., entered October 26, 2007.
Affirmed by unpublished per curiam opinion.
Richard Basarab claims his due process rights were violated when he was not given proper notice that his request for trial de novo appealing the arbitration decision required a $250.00 filing fee. Basarab seeks review of the order granting arbitrator's award and the order denying motion for revision. We affirm.
FACTS
This matter arose from a commercial lease dispute between Richard Basarab, the tenant, and Gerald Simonsen, the landlord. The parties went to arbitration on July 30-31, 2007. The arbitrator issued the award in favor of Simonsen. The arbitrator mailed the arbitration award to the parties on August 8, 2007, and filed it, along with the certificate of mailing, on August 9, 2007. The arbitration award advised the parties that either party could seek a trial de novo under MAR 7.1. The letter did not state that a $250.00 filing fee was required.
The text of MAR 7.1 requires that the party seeking trial de novo serve the request on all other parties and file the request and proof of service on all other parties within 20 days of the filing and service of the arbitrator's award. The standard form for a request for trial de novo, set out in the text of MAR 7.1, does not mention the requirement of the $250.00 filing fee.
Basarab received the arbitrator's award on August 15, 2007, at his address in Fairbanks, Alaska. On August 24, 2007, Basarab mailed his request for trial de novo, but did not include the $250.00 filing fee. The arbitration department sent Basarab a letter on August 28, 2007, advising him that he must include the mandatory filing fee in order to perfect his request for a trial de novo. The letter also stated that Basarab's payment had to be received before the 20 day period expired, on September 4, 2007, or his request would be denied. However, Basarab did not receive the letter until September 11, 2007, well after the 20 day period expired. On September 12, 2007, Basarab mailed the $250.00 filing fee to the King County clerk's office.
The arbitration department sent a notice of waiver of trial de novo to Basarab on September 11, 2007. Simonsen then filed a motion to enter judgment on September 14, 2007. Basarab opposed the motion on the basis that he did not have notice of the filing fee.
The court commissioner found that King County had no duty to notify Basarab of the filing fee and entered judgment on the arbitrator's award. Basarab then moved for revision of the judgment. The trial court denied the motion for revision. Basarab appeals.
DISCUSSION
I. Trial De Novo
Interpretation of the MAR is a matter of law that requires this court to review the trial court's ruling de novo. Seto v. American Elevator, Inc., 159 Wn.2d 767, 772, 154 P.3d 189 (2007). "Court rules, including the MAR, are interpreted in the same manner as statutes, as though they had been drafted by the legislature." Id.
MAR 7.1(a) details the rules for "Service and Filing" of a request for a trial de novo. It provides, in pertinent part:
Within 20 days after the arbitration award is filed with the clerk, any aggrieved party not having waived the right to appeal may 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. The 20-day period within which to request a trial de novo may not be extended.
Once service of the arbitration award is complete, the 20 day period to request a trial de novo begins. Seto, 159 Wn.2d at 769. When service is made by mail, it is presumed that the 20 day period will begin on the third day after the award is mailed, unless the third day is a Saturday, Sunday, or legal holiday. Id.; CR 5(b)(2); MAR 1.3(b)(2) (providing that pleadings and other papers shall be served in accordance with CR 5). "[F]ailure to strictly comply with MAR 7.1(a)'s filing requirement prevents the superior court from conducting a trial de novo." Nevers v. Fireside, Inc., 133 Wn.2d 804, 811-12, 947 P.2d 721 (1997).
Basarab argues that his right to due process was violated, because he did not receive notice about the filing fee in either the plain language of MAR 7.1 or in correspondence from the trial court until after the 20 day period had expired.
Due process requires that litigants have notice and a meaningful opportunity to be heard. State v. Rogers, 127 Wn.2d 270, 275, 898 P.2d 294 (1995). The United States Supreme Court described due process as:
[N]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.
Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). Basarab had that opportunity when his claim was transferred to an arbitrator. See, e.g., Thomas-Kerr v. Brown, 114 Wn. App. 554, 561, 59 P.3d 120 (2002) (finding that arbitration constitutes meaningful opportunity to be heard). Following the entry of the arbitrator's award, Basarab had opportunity to request a trial de novo.
The fact that Basarab lives in Alaska, and that mail delivery takes longer, cannot be the basis for an exception to the filing fee. See Vanderpol v. Schotzko, 136 Wn. App. 504, ¶ 9, 150 P.3d 120 (2007) (explaining that service had occurred three days after mailing, under CR 5(b), even where a party actually received the notice after the 20 day period for filing a trial de novo request had expired). Although Basarab timely filed and served a request for trial de novo, he failed to timely pay the $250.00 filing fee required by RCW 36.18.016(25). While the plain language of MAR 7.1, admittedly, does not reference the filing fee, this does not relieve Basarab from exercising due diligence as to whether a fee was required. Moreover, the court sent Basarab notification that his request for trial de novo required the filing fee.
Basarab argues that a failure to pay a filing fee does not always preclude a request for a trial de novo. In Holt v. Gambill, 123 Wn. App. 685, 687, 98 P.3d 1254 (2004), the party requesting the trial de novo filed the request in Spokane County; however, the County had not established by local ordinance a fee for filing a request for trial de novo. Without an ordinance, the fee was not prescribed. Id. at 690. The court concluded that Holt did not violate MAR 7.1(a) by failing to timely pay a filing fee. Id. at 692.
Conversely, King County established in King County Code 4.71.120 that a request for trial de novo requires a $250.00 filing fee, as provided for in RCW 36.18.016(25). Basarab violated this by not timely paying the fee. As the court in Holt explained: "If a filing fee had been established by county ordinance, Mr. Holt's failure to pay the fee before the 20-day deadline of MAR 7.1 (a) would have been untimely . . . late payment of the filing fee would have in effect violated MAR 7.1(a) by extending the 20-day period." Holt, 123 Wn. App. at 690. In Margetan v. Superior Chair Craft Co., 92 Wn. App. 240, 246, 963 P.2d 907 (1998), this court held that a late filing fee precluded the filing of a complaint. We explained that under RCW 36.18.060, the same statute that controls in the current case, "a document is not filed for recording into the official public record until the filing fee is paid. The clerk of the court has no discretion in this regard. The clerk may not file a document without the filing fee or refuse to file a document accompanied by the proper filing fee." Id.
We hold that Basarab's failure to timely file the $250.00 fee precluded the King County Superior Court clerk from filing his request for trial de novo. We hold that both the order granting arbitrator's award and the order denying motion for revision were properly entered. II. Attorney Fees
Pursuant to RAP 18.1 and MAR 7.3, Simonsen requests an award of attorney's fees and costs on appeal. MAR 7.3 provides:
The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo . . . "Costs" means those costs provided for by statute or court rule. Only those costs and reasonable attorney fees incurred after a request for a trial de novo is filed may be assessed under this rule.
In Kim v. Pham, 95 Wn. App. 439, 446-47, 975 P.2d 544 (1999), this court interpreted the language of MAR 7.3 as "requiring a mandatory award of attorney fees when one requests a trial de novo and does not improve their position at trial because they failed to comply with requirements for proceeding to a trial de novo such as MAR 7.1(a)." Because Basarab failed to timely pay the $250.00 filing fee, we award Simonsen attorney's fees and costs.
We affirm.