MAR 7.1 - Request for Trial De NovoComments for MAR 7.1 must be received no later than April 30, 2011.
SUPERIOR COURT MANDATORY ARBITRATION RULES (MAR)
Purpose: The suggested amendment eliminates the requirement that a party requesting a trial de novo file proof of service of the request prior to expiration of the 20-day period within which the request itself must be filed and served. Furthermore, along with concurrent proposals to amend MAR 6.3 and 6.4, this amendment clarifies when the 20-day period begins to run.
In 2005, the WSBA suggested that the Supreme Court amend MAR 7.1 to eliminate the requirement that a party requesting a trial de novo serve the request and file proof of service of the request within 20 days after the arbitration award is filed with the court. In November 2006, the Court decided not to adopt that amendment. In a letter referring the matter back to the WSBA, the Court suggested that any such change to MAR 7.1 should be made in conjunction with changes to the rules regarding the filing of arbitration awards.
The current proposal follows that suggestion. Amended MAR 7.1(a) would change the result in Nevers v. Fireside, Inc., 133 Wn.2d 804, 811-12, 947 P.2d 721 (1997), and its progeny, in part. See, e.g., Alvarez v. Banach, 153 Wn.2d 834, 840, 109 P.3d 402 (2005); Roberts v. Johnson, 137 Wn.2d 84, 91, 969 P.2d 445 (1999). Nevers and subsequent case law have held that timely service and timely filing of proof of service are mandatory; a failure to strictly comply with these requirements prevents the Superior Court from conducting a trial de novo. This is a harsh result.
Considering the amount of litigation and appellate review devoted to this issue, the rule in its present form represents a trap for the unwary. It is not necessary that both service and proof of service be accomplished within 20 days. The statute authorizing mandatory arbitration requires only that the request be filed within that period. See RCW 7.06.050(1)(b) (within 20 days after entry and service of an arbitrator’s decision, “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 . . . .”).
The suggested amendment to MAR 7.1 would require that the request be filed and served within 20 days, but would set no specific deadline for the filing of proof of service. The first two sentences of amended MAR 7.1(a), along with a new section (c), would accomplish this change. New section (c) would expressly state that failure to file proof of service of the request for a trial de novo shall not void the request. Thus, if proof of service is not filed, the court could conduct a trial de novo if the court deems it appropriate to do so in the interests of justice, and could impose terms it deems appropriate under the circumstances of the case.
The second sentence of amended section (a) would clarify that a request for trial de novo should be served in accordance with CR 5. Although MAR 1.3(b)(2) already provides that all papers should be served in accordance with CR 5 “[a]fter a case is assigned to an arbitrator,” whether MAR 1.3(b)(2) continues to apply to a request made to the trial court might be subject to debate.
The second sentence of amended section (a) also would remove ambiguity about when the 20 days to request a trial de novo begin to run. This sentence works in conjunction with existing MAR 6.2 (setting timelines for the filing of an award and of an amended award to correct obvious errors made in stating the award) and the concurrent proposal to amend MAR 6.4 (setting timelines for the filing of an amended award including costs or attorney fees or denial of same). The proposal is consistent with case law holding that the 20-day period runs from proof of service, if that date is later than filing. See Roberts v. Johnson, 137 Wn. 2d 84, 92, 969 P.2d 446 (1999). For more information, please see the statements of purpose for the concurrent suggested amendments to MAR 3.2 and 6.4.
The second and third sentences of amended section (a) would ensure that a request for a trial de novo is still valid if filed (or served, as applicable) on a date that is after the award is announced, but before the 20-day period began to run. This prevents needless repetition when, for example, a party promptly seeks a trial de novo only to have the other party prolong the proceedings before the arbitrator by filing a request for costs and/or attorney fees. This situation is analogous to a premature notice of appeal from a superior court judgment, which is timely even though filed before final judgment is entered. See RAP 5.2(g).
Amended section (b) would clarify that an award of costs and attorney fees is part of the “amount of the award” that should not be mentioned in a request for a trial de novo.
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