Opinion
No. 28861-3-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 99-2-01959-0. Judgment or order under review. Date filed: 05/17/2002. Judge signing: Hon. Anna M Laurie.
Counsel for Appellant(s), P. Thomas Jr Adams, Longacre Adams, 569 Division St. Ste F, Port Orchard, WA 98366-4600.
Clayton Ernest Longacre, Attorney at Law, 569 Division St. Ste F, Port Orchard, WA 98366-4600.
Counsel for Respondent/Cross-Appellant, Roy Allison Horan Rainey, Attorney at Law, 9057 Washington Ave NW Ste 200, Silverdale, WA 98383-8342.
An arbitrator awarded Susan Scheer-Erickson over $25,000 for money owed on a series of loans she made to Cindy Haines. Haines timely filed a request for trial de novo of the arbitrator's award but did not perfect a note for trial setting until 11 months later. The trial court denied Haines's request for a trial de novo and granted Scheer-Erickson's request for entry of judgment on the award. Haines appeals.
No proof of service was filed as required by MAR 7.1 but Scheer-Erickson did not challenge this deficiency below or on appeal and we do not base our decision on this ground.
Kitsap County Local Rule MAR 7.1 requires that a note for trial setting be filed at the same time a request for de novo trial is made: "The request for trial de novo shall be accompanied by a Note for Trial on the forms provided by the clerk." LMAR 7.1.
Haines failed to timely perfect her appeal of the arbitrator's award and, thus, we affirm the trial court's entry of judgment. Scheer-Erickson cross-appeals the trial court's denial of attorney fees and requests attorney fees for this appeal. Scheer-Erickson is entitled to recover her costs and reasonable attorney fees and, thus, we reverse the trial court's denial of fees. We also award her fees for this appeal.
FACTS
Haines and Scheer-Erickson were domestic partners. In 1988, Haines and Scheer-Erickson purchased a home together in Hansville, located in Kitsap County. Haines's name appeared on the deed, but Scheer-Erickson borrowed money for the down payment from her family, and Haines paid her share of the mortgage to Scheer-Erickson. Haines claims that she paid at least $250 each month, but Scheer-Erickson alleges that Haines started off paying $50 per month.
The record shows that Haines paid $7,153.09 between May 1988 and July 1993 for loans Scheer-Erickson made to Haines between April 1988 and December 1992. The loans began in April 1988, and appear to be for incidental living expenses. Haines claims she never agreed to repay Scheer-Erickson for these expenses and that she signed the declaration to pay these living expenses under duress.
In July 1999, Scheer-Erickson filed this action for $26,248.70, the outstanding balance of the loans. In September 1999, the trial court ordered the case to mandatory arbitration. The next month, Haines moved the trial court for summary judgment. The trial court denied the motion in December 1999.
The case went to mandatory arbitration in March 2001, and the arbitrator awarded $25,248.70 to Scheer-Erickson on April 3, 2001. Haines submitted a request for trial de novo on April 20, 2001, but she did not pay the filing fee until April 23, 2001. The superior court clerk placed the matter on the trial setting calendar for July 13, 2001, but removed it because the filing fee was not paid.
Because the filing fee was actually paid on April 23, 2001, the clerk's belief that the fee was unpaid was erroneous.
On August 16, Haines attempted to note the matter for August 17, 2001. The notice violated the five-day requirement and was stricken. LMAR 7.2(e); KCLCR 40(b)(1); CR 40(a). Haines next attempted to note the matter in March 2002. Scheer-Erickson filed a motion for entry of judgment on the arbitrator's award on March 29, 2002. The trial court granted Scheer-Erickson's motion for entry of judgment on May 17, 2002.
Haines appeals, claiming that the trial court erred when it denied summary judgment in December 1999, and again when it granted the motion for entry of judgment in May 2002. Scheer-Erickson appeals the denial of attorney fees and costs and requests the same for this appeal.
ANALYSIS Appeal From Denial of Motion for Summary Judgment
After the trial court ordered mandatory arbitration, Haines moved for summary judgment, claiming that there was no material issue of fact that a written contract did not exist. The trial court denied Haines's summary judgment motion. Haines appeals the trial court's denial of her summary judgment motion.
We will not review a denial of summary judgment based on disputed material facts after a trial on the merits. Herring v. Dep't of Soc. Health Servs., 81 Wn. App. 1, 14, 914 P.2d 67 (1996). An arbitration award is a final judgment on the merits. RCW 7.04.210; Dunlap v. Wild, 22 Wn. App. 583, 591, 591 P.2d 834 (1979). Allowing review of a trial court's pre-arbitration denial of a summary judgment motion would circumvent the policy of avoiding useless trials. See Cook v. Selland Constr., Inc., 81 Wn. App. 98, 101, 912 P.2d 1088 (1996). Haines may not appeal the denial of summary judgment made before the arbitration award. See Cook, 81 Wn. App. at 101-02 (a party (defendant) may not appeal a pretrial summary judgment motion and avoid the requirements of MAR 7.1). Thus, we decline to review Haines's challenge to the trial court's denial of her pre-arbitration summary judgment motion.
Appeal of Arbitrator's Award
Haines challenges the trial court's denial of her request for a trial de novo and entry of judgment on the arbitrator's award. The trial court denied Haines's request for a trial de novo because she failed to perfect her request as required by MAR 7.1 and Kitsap County's local arbitration rules (LMAR) 7.1 and 7.2. We review the trial court's interpretation of these rules de novo. See Thomas-Kerr v. Brown, 114 Wn. App. 554, 557, 59 P.3d 120 (2002).
MAR 7.1 reads 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.
MAR 7.1(a) (emphasis added).
LMAR 7.1 reads:
(a) Service and Filing.
(1) Must be Accompanied by Note for Trial. The request for trial de novo shall be accompanied by a Note for Trial on the forms provided by the clerk.
(Emphasis added.)
Haines asserts that the trial court erred by requiring that she strictly comply with LMAR 7.1(a)(1), which requires that a request for trial de novo be accompanied by a Note for Trial on the forms provided by the Kitsap County Clerk. Haines contends that substantial compliance rather than the strict compliance standard of MAR 7.1 is sufficient to satisfy the local rule. We do not decide whether Haines filed sufficient proof of service or whether substantial compliance is sufficient to satisfy compliance with LMAR 7.1(a)(1) because Haines did not file a Note for Trial that satisfied the rule's requirements for 11 months and, thus, did not substantially or strictly comply with the local rule. Substantial compliance is "actual compliance" with the "substance essential to every reasonable objective" of the rule. See Hernandez v. Dep't of Labor Indus., 107 Wn. App. 190, 196, 26 P.3d 977 (2001). Noncompliance is not substantial compliance. Hernandez, 107 Wn. App. at 196. Here, Haines did not comply with the only objective stated in the local rule and we cannot construe her actions as substantial compliance.
To demonstrate sufficient proof of service, there must be language as to time, place, and manner of service as required by MAR 7.1. Carpenter v. Elway, 97 Wn. App. 977, 987, 988 P.2d 1009 (1999), review denied, 141 Wn.2d 1005 (2000). An assertion that all parties were served is not sufficient. Carpenter, 97 Wn. App. at 989. But attestation by the process server is also not required. Sunderland v. Allstate Indem. Co., 100 Wn. App. 324, 329, 995 P.2d 614, review denied, 141 Wn.2d 1031 (2000). While the service requirements do not require a formal certificate of service, there must be a minimal showing of the time, place, and manner of service. Terry v. City of Tacoma, 109 Wn. App. 448, 457, 36 P.3d 553 (2001), review denied, 146 Wn.2d 1012 (2002).
When Haines failed to timely perfect her appeal from the arbitrator's awards, the trial court's authority was limited to entering judgment on the award in favor of Scheer-Erickson. Kim v. Pham, 95 Wn. App. 439, 445-46, 975 P.2d 544 (failure to comply with MAR 7.1 limits trial court's authority to entering judgment on arbitrator's award), review denied, 139 Wn.2d 1009 (1999). The sole method of challenging a mandatory arbitration ruling is through a trial de novo. Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 529, 79 P.3d 1154 (2003). A party's failure to timely request a trial de novo mandates denial of the request. Malted Mousse, 150 Wn.2d at 529. Parties that fail to request a trial de novo may not alter an arbitration award by "requesting action by the Superior Court which would amend that award." Trusley v. Statler, 69 Wn. App. 462, 465, 849 P.2d 1234 (1993). Thus, Haines's failure to properly request a trial de novo requires the trial court to enter judgment on the arbitration award and precludes any other action.
Haines also claims that Scheer-Erickson's suit was untimely because the elements of a written contract were not met, triggering the three-year limitations period for an oral contract, instead of the six-year limitations period for a written contract. But because the trial court lacked authority to reconsider claims without a request for a trial de novo, we do not consider this claim.
Scheer-Erickson's Cross-Appeal for Attorney Fees
Rules governing mandatory arbitration require that the trial court assess costs and reasonable attorney fees against a party who unsuccessfully appeals an arbitrator's award. 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 fees against a party who voluntarily withdraws a request for trial de novo.
(Emphasis added.)
Haines did not voluntarily withdraw her request for trial de novo, nor did she improve her position from the arbitrator's award. Thus, the rule states that the trial court shall assess costs and reasonable attorney fees against Haines. See, e.g., Hedlund v. Vitale, 110 Wn. App. 183, 187, 39 P.3d 358 ("The party . . . is . . . liable for costs and fees if the trial court denies the request due to the party's failure to `comply with the requirements for proceeding to a trial de novo'") (quoting Wiley v. Rehak, 143 Wn.2d 339, 349, 20 P.3d 404 (2001)), review denied, 147 Wn.2d 1015 (2002); Kim, 95 Wn. App. at 446 (interpreting MAR 7.3 as requiring a mandatory award of fees when a party requests a trial de novo but does not improve their position); Yoon v. Keeling, 91 Wn. App. 302, 306, 956 P.2d 1116 (1998) (party that does not improve its position when requesting a trial de novo "must be responsible for . . . attorney fees"). Likewise, upon Scheer-Erickson's compliance with RAP 18.1, the commissioner of this court shall enter an order awarding her reasonable attorney fees and costs incurred in this appeal.
Affirmed in part and reversed in part.
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 ARMSTRONG, J., concur.