Opinion
No. 52861-1-I Consol. w/53062-3-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-2-08538-3. Judgment or order under review. Date filed: 07/17/2003. Judge signing: Hon. Rita M Love.
Counsel for Appellant(s), Marilee C. Erickson, Reed McClure, 601 Union St. Ste 4901, Seattle, WA, 98101-3920.
Castromo L Jr Preston, Allstate, 900 4th Ave Ste 1470, Seattle, WA, 98164-1079.
Counsel for Respondent(s), Brian Charles Dale, Attorney at Law, 3411 Colby Ave, Everett, WA, 98201-4709.
Following an adverse result in arbitration, Ok Sook Kim filed a request for a trial de novo. The trial court erred when it struck Kim's request. The request, which was stamped as having been received by opposing counsel, and the certificate of service signed by Kim's attorney were adequate proof of service of the request. Testimonial knowledge of proof of service is not required. We, therefore, reverse the trial court's decisions striking the request and denying Kim's CR 60 motion to vacate.
FACTS
In July 2000, Ok Sook Kim drove her car into the back of Shannon Stangland's car. Stangland sued Kim, and the case went to arbitration. On May 7, 2003, an arbitrator ruled in Stangland's favor. Less than 20 days later, on May 21, 2003, Kim filed a request for a trial de novo. The request was stamped as having been received by Deno Millikan Dale Decker Peterson, the office of Stangland's lawyer, Brian Dale, on May 21, 2003, and had a certificate of service attached. The certificate, signed by Kim's lawyer, Castromo Preston, Jr., "certified" that Preston mailed a copy of the request to Stangland's lawyer, but the certificate did not say when it was mailed.
Stangland moved to strike Kim's request for a trial de novo. She asserted that Kim did not timely file proof of service as required by Mandatory Arbitration Rule (MAR) 7.1(a).
Kim responded to the motion to strike with a declaration from her attorney. Preston indicated that on May 20, 2003, his legal assistant directed a messenger to serve Stangland with the request for a new trial, and then to file the original of the request with the court. Preston explained that he signed the request for a new trial on May 20, 2003, ABC Legal Messengers picked up the request that same day, and the original with a date-stamp from Brian Dale's office was filed on May 21, 2003.
The court struck Kim's request for a trial de novo. The court found that Preston's declarations "do not establish testimonial knowledge of proof of service of request for trial de novo required by MAR 7.1." Clerk's Papers at 74. The court then entered judgment in Stangland's favor.
Kim then moved to vacate the order and judgment under CR 60(b). Kim argued that MAR 7.1(a) requires only some evidence of the time, place, and manner of service to prove service of a request for a trial de novo. The motion to vacate was denied. This appeal followed.
Kim appealed from the judgment on the arbitration award and the order denying the motion to vacate. The appeals were consolidated.
DISCUSSION
The Trial Court Erred As A Matter Of Law Because Kim Offered Adequate Proof Of Service Of The Request
Kim argues on appeal that the trial court erred as a matter of law when it struck the request for trial de novo. We agree.
Mandatory arbitration rules are interpreted, as are any other court rules, as though they were drafted by the Legislature and are construed consistent with their purpose. Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001). Interpreting a court rule is a question of law subject to de novo review on appeal. Wiley, 143 Wn.2d at 343.
RCW 7.06.050 and MAR 7.1(a) provide that any aggrieved party in arbitration is entitled to a trial de novo in superior court. Wiley, 143 Wn.2d at 343-44. MAR 7.1(a) contains the procedures required to file a notice for trial de novo:
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 superior court may not conduct a trial de novo unless the aggrieved party strictly complies with MAR 7.1(a)'s filing requirements. Nevers v. Fireside, Inc., 133 Wn.2d 804, 815, 947 P.2d 721 (1997). Both the trial de novo request and proof of service of the request must be filed within the 20 day window after the arbitrator files the award under MAR 7.1(a). Wiley, 143 Wn.2d at 344. Substantial compliance is insufficient. Nevers, 133 Wn.2d at 815.
Nevers focused on the need to provide timely proof of service of a request for trial de novo. It did not establish what that proof of service should contain. Sunderland v. Allstate Indemnity Co., 100 Wn. App. 324, 328, 995 P.2d 614 (2000). But MAR 7.1(a) requires only "proof that a copy has been served," rather than "proof of service." Therefore, some format other than the standard "proof of service" is sufficient under the rule. Manius v. Boyd, 111 Wn. App. 764, 767, 47 P.3d 145 (2002).
MAR 1.3(b)(2), which governs service of arbitration documents, requires service in accordance with CR 5. Carpenter v. Elway, 97 Wn. App. 977, 987, 988 P.2d 1009 (1999). Under CR 5(b)(1), personal service is made on a party or attorney by handing the copy directly to the party, attorney or person in charge of receiving such copies. By analogy, the Carpenter court held that adequate proof of personal service under MAR 7.1(a) requires some evidence as to time, place, and manner of service. Carpenter, 97 Wn. App. at 987. An attestation of service is not required. Sunderland, 100 Wn. App. at 329; Alvarez v. Banach, 120 Wn. App. 93, 99, 84 P.3d 278 (2004).
CR 5(b)(1) does not similarly specify what constitutes adequate proof of service by delivery. Sunderland, 100 Wn. App. at 328. But the Sunderland court held that a signed certificate of service and a request for a trial de novo were sufficient proof that a copy had been served. Sunderland, 100 Wn. App. at 329. The request for trial de novo was stamped as having been received by the Sunderlands' attorneys and showed the date received. In the certificate of service, counsel's legal assistant stated that the request for trial de novo had been sent by legal messenger to all counsel of record for delivery no later than a date within the 20 day period set forth in MAR 7.1.
The court found that the certificate indicated the time and manner of delivery (April 2, 1998, by legal messenger), and the "RECEIVED" stamp on the request for a trial de novo indicated the place of delivery (opposing counsel's office). Together, the two documents sufficiently indicated the time, place, and manner of service. Sunderland, 100 Wn. App. at 329.
In Terry v. City of Tacoma, 109 Wn. App. 448, 36 P.3d 553 (2001), there was no certificate of service. The "RECEIVED" stamp on the request for a trial de novo was sufficient to establish the time and place of delivery. Terry, 109 Wn. App. at 457. But the appellate court remanded to the trial court to determine if the "RECEIVED" stamp was also adequate to show the manner of delivery:
If the trial court on remand finds that receiving stamps from the City Attorney's Office and Clerk's office can only both appear as a consequence of being placed on the original document when personally served, there is "some evidence" of the manner of service and the requirements of are satisfied.
Terry, 109 Wn. App. at 458.
A signed certificate of service alone was adequate to prove service in Manius, 111 Wn. App. 764. That case involved service by mail. The certificate of service stated that the request for trial de novo was mailed on a certain date to the attorneys of record, whose addresses were included. Because the certificate indicated the time, place, and manner of service, it complied with MAR 7.1(a). Manius, 111 Wn. App. at 771.
In this case, the "RECEIVED" stamp shows the time and place of service — May 21, 2003 at opposing counsel's offices. The certificate of service indicates that the manner of service was mailing. But the "RECEIVED" stamp suggests that the manner of service was by delivery to opposing counsel. Therefore, proof of the manner of service was equivocal.
Under CR 5(b)(1), delivery means "handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein."
But the request and the certificate provide "some evidence" of the manner of service. And the proof of service of a request for trial de novo is not as strict as the Nevers requirements for filing the request. Manius, 111 Wn. App. at 771. Moreover, Stangland does not deny that she received timely service and notice of Kim's request for trial de novo. "[P]roof of actual delivery indicating the time, place, and manner of receipt may rescue an otherwise deficient certificate of proof of service and may alone satisfy the MAR 7.1(a) proof of service requirement." Alvarez, 120 Wn. App. at 102. In this case, the request for trial de novo stamped "RECEIVED" and the certificate of service together were adequate proof of service under MAR 7.1(a).
Stangland contends that admissible evidence of service by the person who accomplished service must be filed within 20 days under the rule. Thus, she argues that the declaration submitted by Kim's attorney in response to the motion to strike was not adequate to prove service because it was not submitted within the 20 day period and was not made by the person who accomplished service.
Stangland's argument assumes that Kim's proof of service depends upon Preston's declaration, which was filed more than 20 days after the arbitrator's award was filed. Because we find that the certificate of service, along with the date-stamped request for a trial de novo, were adequate to prove service, we need not address the alleged failings of Preston's declaration. For that same reason, we need not address Kim's contention that the trial court erred when it denied the CR 60 motion to vacate.
CONCLUSION
The trial court erred when it struck Kim's request for a trial de novo. Kim was not required to provide testimonial knowledge of proof of service. Moreover, the certificate of service, combined with the date-stamped request for trial de novo, provided adequate proof of service. The decisions of the trial court are reversed, and the case is remanded for further proceedings consistent with this opinion.
APPELWICK, KENNEDY and COLEMAN, JJ., concur.