Opinion
No. 25652-9-III.
January 8, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 02-2-01242-5, Michael E. Schwab, J., entered October 20, 2006.
Reversed and remanded by unpublished opinion per Thompson, J. Pro Tem., concurred in by Brown and Kulik, JJ.
Ismelia Galvan Vargas appeals a trial court order allowing Jose Luis Zesati to file a request for a trial de novo after a mandatory arbitration award. Ms. Vargas contends that the trial court erred by denying her motion for entry of judgment on the mandatory arbitration award and for allowing Mr. Zesati to file a trial de novo request after the 20-day mandatory time for filing the motion had elapsed. MAR 7.1. Ms. Vargas also requests attorney fees under MAR 7.3. We reverse and order the trial court to grant Ms. Vargas's motion for entry of judgment on the mandatory arbitration award, and grant her request for attorney fees under MAR 7.3.
FACTS
Ismelia Galvan Vargas was injured in an automobile accident. Her claim was submitted to mandatory arbitration by agreement of the parties and an award was entered. The award was filed with the court. Shortly thereafter, within the time allowed by rule, Mr. Hernandez, the attorney for Ms. Vargas, faxed a letter to Mr. Bruns, Mr. Zesati's attorney, notifying him that Ms. Vargas planned to file both a notice of appeal and a request for a trial de novo. This letter contained no indication that the requests were filed with the court and no proof of service was provided. The request for a trial de novo was never filed with the court.
Mr. Zesati filed a jury demand with the court. Thereafter, Mr. Hernandez sent a letter to Mr. Bruns, stating that Ms. Vargas had decided not to go forward with the trial de novo. Mr. Hernandez also wrote that he planned to withdraw his request for a trial de novo, and intended to ask the court to enter judgment on the arbitration award. In response, Mr. Bruns filed a motion to strike the request to withdraw the request for a trial de novo. James Dore, another attorney for Ms. Vargas, then filed a motion to enter judgment according to the arbitrator's decision.
After considering the matter, the court entered an order denying the request of Ms. Vargas to enter a judgment on the mandatory arbitration award and allowing Mr. Zesati to file a request for a trial de novo. The court based its decision on the "irregularity in the plaintiff's actions." Clerk's Papers at 10. The court concluded that the reason Mr. Bruns did not timely file a request for a trial de novo was solely because of the inaction of Ms. Vargas's attorney. Ms. Vargas then appealed the trial court's order.
ANALYSIS
A. Trial De Novo
The interpretation of the Mandatory Arbitration Rules (MAR) presents a question of law that is reviewed de novo. Thomas-Kerr v. Brown, 114 Wn. App. 554, 557, 59 P.3d 120 (2002). The rules are interpreted as legislative statutes. Seto v. Am. Elevator, Inc., 159 Wn.2d 767, 772, 154 P.3d 189 (2007). Where a statute is clear on its face, "`its meaning is to be derived from the language of the statute alone.'" Id. (quoting Kilian v. Atkinson, 147 Wn.2d 16, 20, 50 P.3d 638 (2002)).
RCW 7.06.050 states:
(1) Following a hearing as prescribed by court rule, the arbitrator shall file his decision and award with the clerk of the superior court, together with proof of service thereof on the parties. 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. Such trial de novo shall thereupon be held, including a right to jury, if demanded.
(2) If no appeal has been filed at the expiration of twenty days following filing of the arbitrator's decision and award, a judgment shall be entered and may be presented to the court by any party, on notice, which judgment when entered shall have the same force and effect as judgments in civil actions.
RCW 7.06.050(1), (2). MAR 7.1 provides:
(a) Service and Filing. 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.
The MAR 7.1(a) requirements for seeking a trial de novo of a mandatory arbitration award are set out in Nevers v. Fireside, Inc., 133 Wn.2d 804, 811, 947 P.2d 721 (1997). The Washington Supreme Court held that to preserve the right to "appeal" an arbitrator's decision and to conduct a trial de novo, a party must: (1) serve and file with the court clerk a written request for a trial de novo in the superior court; (2) along with proof of service upon all case parties; (3) within 20 days of the filing and service of the arbitration award. Id.
Strict compliance with MAR 7.1 is required. Substantial compliance will not suffice. Nevers, 133 Wn.2d at 815. Strict compliance is necessary to enforce the legislative goals of reducing congestion in the courts and delays in hearing civil cases. Perkins Coie v. Williams, 84 Wn. App. 733, 737, 929 P.2d 1215 (1997).
In Nevers, the court explained that failure to meet the MAR 7.1(a) requirements was not a jurisdictional issue, "[a]lthough we recognize the filing of the request and proof of service with the superior court is somewhat akin to filing a notice of appeal, it is not a step that invokes the superior court's jurisdiction. That court's jurisdiction is invoked upon the filing of the underlying lawsuit and it is not lost merely because the dispute is transferred to mandatory arbitration." Nevers, 133 Wn.2d at 812 n. 4; see also MAR 1.3(a).
Ms. Vargas argues that since Mr. Zesati failed to file his request for a trial de novo within the 20-day strict compliance requirement of MAR 7.1(a), her motion for entry of judgment should have been granted. She cites Thomas-Kerr, 114 Wn. App. at 556 in support of her position. In Thomas-Kerr, the plaintiff, following an arbitration award in an automobile accident, requested a trial de novo within the 20 days required by statute. Defendant did not file a similar request or provide proof of service. Later, the plaintiff withdrew the request, and the trial court entered judgment on the underlying arbitration award. Defendant appeals, but Division One of this court affirmed, holding "[w]e conclude that when one party files, then withdraws its request for trial de novo, the other party must have timely filed its own request for a trial de novo to preserve its right to appeal an arbitrator's decision." Id. at 561.
Here, though Mr. Hernandez, apparently in good faith, led Mr. Zesati's attorney, Scott Bruns, to believe that Ms. Vargas wished to proceed with a trial de novo, as noted in Thomas-Kerr, this did not relieve Mr. Bruns of the responsibility to comply with the mandatory rules of arbitration. If he likewise wished to have a trial de novo, he was required to file his own written request within the 20 days. The issue is not whether he was misled, but whether he in fact complied with the MAR 7.1(a) mandatory filing requirements. He did not.
Since Mr. Zesati failed to preserve his right to appeal the arbitration award, the trial court had no authority to allow him to request a trial de novo after the 20-day period had run. The trial court should have granted Ms. Vargas's motion to enter judgment on the mandatory arbitration award and should have denied Mr. Zesati's motion to strike the trial de novo withdrawal.
B. Attorney Fees
Ms. Vargas requests attorney fees on appeal, arguing that Mr. Zesati failed to improve his position. 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. The court may assess costs and reasonable attorney fees against a party who voluntarily withdraws a request for a trial de novo.
RCW 7.06.060 also contains similar language that mirrors MAR 7.3. Ms. Vargas relies on Kim v. Pham, 95 Wn. App. 439, 975 P.2d 544, review denied, 139 Wn.2d 1009 (1999). In Kim, the respondent, Ms. Kim, was granted attorney fees after the appellant, Ms. Pham, failed to prove that she met the MAR 7.1 requirements for a trial de novo at the trial court and on appeal. Ms. Pham was deemed an appellant who failed to improve her position on the trial de novo under MAR 7.3. The appellate court granted attorney fees to Ms. Kim. Id. at 446-47. Fairness would seem to dictate that since Ms. Vargas was complicit in precipitating the need for this appeal and for contributing to Mr. Zesati's failure to file his appeal on time, she should be deemed to have waived the right to ask for attorney fees under MAR 7.3. However, though Ms. Vargas took steps to appeal and ask for a trial de novo in the trial court, she did not actually file the request with the court. Mr. Zesati, on the other hand, actually appealed the award and asked for a trial de novo, which request was granted. Under these circumstances, even though the trial court never reached the merits of whether the arbitration award was correct, Ms. Vargas is entitled to her attorney fees on appeal. As the court held in Kim:
Although not explicitly stated, we interpret 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.
Kim, 95 Wn. App. at 446-47.
CONCLUSION
The trial court's order granting Mr. Zesati's request for a trial de novo is reversed. Ms. Vargas's request for attorney fees on appeal is granted. The case is remanded to the trial court for entry of judgment on the arbitration award.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Brown, J.
Kulik, J.