Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
40959-3 |
| Title of Case: |
Laura Morello, Petitioner V Rebecka Vonda, Respondent |
| File Date: |
04/24/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Clark Superior Court |
| Docket No: | 08-2-02953-4 |
| Judgment or order under review |
| Date filed: | 06/11/2010 |
| Judge signing: | Honorable John P Wulle |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Christine Quinn-Brintnall |
| Dissenting: | David H. Armstrong |
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s) |
| | William Henry Reed |
| | Law Office of William H. Reed, PC |
| | 1104 Main St Ste 220 |
| | Vancouver, WA, 98660-2974 |
Counsel for Respondent(s) |
| | Maria Liesl Ruckwardt |
| | Smith Freed & Eberhard PC |
| | 111 Sw 5th Ave Ste 4300 |
| | Portland, OR, 97204-3639 |
|
| | Stephen Edward Archer |
| | Smith Freed & Eberhard |
| | 111 Sw 5th Ave Ste 4300 |
| | Portland, OR, 97204-3604 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LAURA MORELLO, No. 40959-3-II
Appellant,
v.
REBECKA VONDA and JOHN DOE PUBLISHED OPINION
VONDA, husband and wife, and the marital
community comprised thereof,
Respondent.
Hunt, J. -- Laura Morello appeals the trial court's denial of her motion to strike Rebecka
Vonda's request for a trial de novo following mandatory arbitration. Morello argues that the trial
court should have granted her motion because (1) Vonda failed to comply strictly with former
Mandatory Arbitration Rule (MAR) 7.1(a) (2001)'s proof of service requirements, and (2) Vonda
could not bypass the rule's strict compliance requirement and substitute mere substantial
compliance when Vonda's proof of service failed to provide sufficient proof of Morello's actual
receipt of service of Vonda's trial de novo request. We affirm and remand for further
proceedings.
FACTS
No. 40959-3-II
Laura Morello sued Rebecka Vonda and "John Doe Vonda" (Vonda) for personal injuries
suffered in a motor vehicle accident and submitted the claim to mandatory arbitration. On April
21, 2010, the arbitrator filed an arbitration award in Morello's favor. Twenty days later, at 3:42
pm on May 11, Vonda filed a request for trial de novo and a "Certificate of Service"1 under
former MAR 7.1 and Local Rules for Mandatory Arbitration Rule (LMAR) 7.1.2 Vonda's trial de
novo request contained the following statement:
3. Pursuant to LMAR 7.1 a Notice to Set for Trial and Jury Demand . . .
IS being filed and served upon all parties at the same time as the filing of this
Request for Trial De Novo by the undersigned aggrieved party.
Clerk's Papers (CP) at 6 (emphasis added). Vonda's certificate of service stated:
I hereby certify that on May 11, 2010 I served the foregoing
DEFENDANT VONDA'S REQUEST FOR TRIAL DE NOVO, NOTICE TO
SET FOR TRIAL and ARBITRABILITY, and DEMAND FOR JURY on:
William H[.] Reed
Reed Johnson & Snider, P.C.
Attorneys at Law
201 NE Park Plaza Drive, Suite 248
Vancouver, WA 98684
FACSIMILE: 360-695-3135
Of Attorneys for Plaintiff
. . . by hand delivering to each of the foregoing a copy thereof to the address listed
above.
CP at 30. Cliff J. Wilson, an attorney from Vonda's counsel's firm, signed the certificate of
1 Clerk's Papers (CP) at 30.
2 Clark County LMAR 7.1 provides: "The appealing party shall file and serve on the other party
or parties a Notice to Set for Trial pursuant to Local Rule 40."
2
No. 40959-3-II
service for Vonda's counsel. In addition, as required by Clark County Local Rule
3
No. 40959-3-II
(LR) 40(b)(a),3 Vonda's Notice to Set for Trial, signed by Wilson for Maria Liesl "Sam"
Ruckwardt, certified that all counsel "have been served with a copy of this notice." CP at 4.
Morello moved to strike Vonda's request for trial de novo, asserting that Vonda had not
provided proper proof of service because (1) former MAR 7.1(a) required Vonda to have filed "'a
written request for trial de novo in the Superior Court along with proof that a copy has been
served upon all other parties appearing in the case'"4; (2) a courier, not Vonda's counsel
personally (as attested in the certificate of service), had served the notice of trial de novo on
Morello's counsel; (3) because the notice of trial de novo was served on Morello's counsel at
4:20 pm May 11, 2010, the courier could not have filed the notice at the superior court clerk's
office before it closed at 4:30 pm; (4) Vonda filed "[n]o proof of service, showing actual receipt
by plaintiff"5; and (5) thus, Vonda provided only proof of "intended" service, which had not yet
been accomplished when she filed the certificate of service with the court. CP at 33 (emphasis
omitted).
Vonda responded that (1) her certificate of service proved actual hand delivery on
Morello's counsel on May 11, not merely an intent to deliver later; and (2) Morello's affidavit in
support of her motion to strike Vonda's trial de novo request demonstrated that Morello's
3 Local Rule (LR) 40(b)(1) provides: "Notice to Set for Trial. An attorney desiring to place a
case on the trial readiness calendar shall file a 'Notice to Set for Trial' on a form prescribed by the
court." The "Notice to Set for Trial" form requires counsel to certify "[t]hat all counsel and/or
Pro Se parties have been served with a copy of this notice." See CP at 4.
4 CP at 31 (quoting former MAR 7.1(a)).
5 CP at 25 (emphasis added).
4
No. 40959-3-II
counsel did receive a copy of Vonda's request on May 11, as certified in Vonda's proof of
service.6
The trial court denied Morello's motion to strike Vonda's request for trial de novo,
concluding that, although Vonda had not "strictly compl[ied]" with former MAR 7.1(a), she had
"substantially compl[ied]" with former MAR 7.1(a). CP at 63 (Conclusions of Law 1, 2). The
trial court's written findings of facts included the following findings:
4. Attached to [Vonda's] Request for Trial De Novo was a certificate of
service, dated May 11, 2010 and signed by [Vonda's counsel], stating she had
served [Morello] by personal delivery to the office of [Morello's counsel];
5. [Vonda's counsel] did not personally deliver [Vonda's] Request for
Trial De Novo to the office of counsel for plaintiff. [Vonda's] Request for Trial
De Novo was delivered by courier to the office of [Morello's counsel] on May 11,
2010 at 4:20 p.m.; and
6. No proof of service has been filed, within the time frame prescribed
under [former] MAR 7.1(a), showing actual receipt of [Vonda's] Motion for Trial
De Novo by [Morello] or by her counsel.
CP at 63 (emphasis added).
Morello filed a motion for discretionary review, which we granted.
ANALYSIS
Morello argues that the trial court erred in denying her motion to strike Vonda's request
for trial de novo because former MAR 7.1(a) required strict compliance and Vonda established
only the method of intended service, rather than completed actual service, which former MAR
7.1(a) required. Vonda responds that, even if the trial court erred in ruling that her substantial
6 Vonda did not dispute Morello's assertion that the notice was delivered by courier to Morello's
counsel at 4:20 pm on May 11. Nor did Vonda address when her certificate of service was filed
with the court in relation to its actual hand delivery to Morello's counsel.
5
No. 40959-3-II
compliance with former MAR 7.1(a) was sufficient, we should affirm the trial court's acceptance
of her trial de novo request because (1) the trial court erred in finding that Vonda's certificate of
service, filed with her request for trial de novo, merely substantially complied with, but did not
actually meet, former MAR 7.1(a) requirements7; when (2) in fact, Vonda's proof of service did
actually meet former MAR 7.1(a)'s strict compliance requirements. We agree with Vonda that
the record shows she strictly complied with former MAR 7.1(a)'s requirements by having filed
and served all necessary documents by the end of the day on May 11.
I. Standard of Review
We review a trial court's findings of fact and conclusions of law to determine whether
substantial evidence supports the findings and, if so, whether the findings support the conclusions.
Scott v. Trans-Sys., Inc., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003). Substantial evidence is a
quantum of evidence sufficient to persuade a rational fair-minded person that the premise is true.
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). We
review the trial court's conclusions of law de novo. 810 Props. v. Jump, 141 Wn. App. 688, 696,
170 P.3d 1209 (2007). "Interpretation of the [MARs] is a matter of law requiring . . . de novo
review." Terry v. City of Tacoma, 109 Wn. App. 448, 452, 36 P.3d 553 (2001), review denied,
146 Wn.2d 1012 (2002).
II. Former MAR 7.1(a)
An aggrieved arbitration party is entitled to a trial de novo in superior court. RCW
7 Vonda may raise this issue on appeal without first having filed a cross-notice of appeal because
she is not requesting affirmative relief. RAP 2.4(a); Kailin v. Clallam County, 152 Wn. App.
974, 990, 220 P.3d 222 (2009).
6
No. 40959-3-II
7.06.050(1); former MAR 7.1. In order to exercise this option, however, within 20 days of the
arbitrator's filing an award, the aggrieved party must file a request for trial de novo in superior
court, along with "proof that a copy has been served" on all other parties appearing in the case.
Former MAR 7.1(a). The issue here is whether Vonda's proof of service met this requirement.
We hold that it does.
A. Substantial Compliance Not Sufficient
Former MAR 7.1(a) provided, in part:
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 request for a trial de novo shall not refer to the amount of the award and shall
be in substantially the form set forth below[.]
(Emphasis added.)8 We agree with Morello that the trial court erred in applying the "substantial
compliance" standard rather than requiring strict compliance with former MAR 7.1(a).9
B. Strict Compliance Required and Accomplished
We next address whether the trial court also erred in ruling that Vonda failed to comply
strictly with former MAR 7.1(a) and, if the trial court did err, whether to affirm on other grounds.
8 Our Supreme Court recently amended MAR 7.1(a), effective September 1, 2011. This newly
amended rule no longer expressly requires the aggrieved party to file "proof that a copy has been
served upon all other parties" when filing a request for trial de novo. Instead, the new MAR
7.1(a) requires service in compliance with CR 5, which focuses on various manners of service and
does not specifically address proof of such service.
9 In Alvarez v. Banach, 153 Wn.2d 834, 838, 109 P.3d 402 (2005) (citing Nevers v. Fireside,
Inc., 133 Wn.2d 804, 812, 947 P.2d 721 (1997)), our Supreme Court clearly held that former
MAR 7.1(a) requires strict compliance.
7
No. 40959-3-II
State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004) (we can affirm the trial court on any
ground the record supports). We agree with Vonda that the trial court erred in ruling that her
proof of service did not strictly comply with former MAR 7.1(a), see CP at 53 (Conclusion of
Law 1), which ruling it based on the following (paraphrased) findings:
Finding 4 -- Vonda's May 11, 2010 certificate of service stated that her counsel
"had served" Morello "by personal delivery to the office of counsel for plaintiff." CP at
53 (emphasis added).
Finding 5 -- Vonda's counsel had not personally delivered the request for trial de
novo to Morello; instead, a courier had delivered the request for trial de novo at 4:20 pm
on May 11.
Finding 6 -- Therefore, "[n]o proof of service ha[d] been filed, within the time
frame prescribed under [former] MAR 7.1(a), showing actual receipt of defendant's
Motion for Trial De Novo by plaintiff or by her counsel."10 CP at 53.
Although the record supports findings 4 and 5, it does not support finding 6. And neither the trial
court's findings nor the record support its conclusion of law 1 that Vonda did not strictly comply
with former MAR 7.1(a).11 On the contrary, the record shows that Vonda did strictly comply
with former MAR 7.1(a).
1. "Some evidence of the time, place, and manner of service"
First, on its face, Vonda's certificate of service met former MAR 7.1(a)'s requirement that
10 Vonda cross-assigned error to this finding of fact.
11 Vonda cross-assigned error to this conclusion of law.
8
No. 40959-3-II
she provide "some evidence of the time, place, and manner of service." In Alvarez v. Banach,
153 Wn.2d 834, 840, 109 P.3d 402 (2005) (citing Terry, 109 Wn. App. at 455-56) (emphasis
added) (mere "declaration of delivery" that opposing counsel's secretary had sent trial de novo
request to Alvarez via legal messenger indicated only intention to serve and was insufficient to
satisfy former MAR 7.1(a) "without further proof" that the request had actually "been served").12
In contrast with Alvarez's declared mere intention to serve, Vonda's certificate of service stated
that her counsel's law firm actually served Morello's counsel with the request for trial de novo.
Thus, Vonda's certificate of service was not a statement of mere intention to serve; rather, it was
proof that actual service was accomplished on Morello on May 11,13 which Morello has not
disputed, despite her questioning the sequence of events that afternoon.14
2. Actual service uncontroverted
12 The Supreme Court reversed our holding that the "declaration of delivery sufficiently indicated
the time, place, and manner of delivery and that proof of actual receipt was not necessary."
Alvarez, 153 Wn.2d at 836 (emphasis added).
13 Vonda's request for trial de novo included the following clause: Service "IS being filed and
served upon all parties at the same time as the filing of this Request for Trial De Novo." CP at 6.
We recognize that this clause suggested that service was occurring contemporaneously with filing
the notice and, thus, technically, had not yet been completed. This statement, if standing alone,
might be insufficient to prove strict compliance with former MAR 7.1(a)'s requirement of proof
"that a copy has been served." Here, however, we also consider the certificate of service that
Vonda filed with this request, which certificate proved actual completed service of the request, in
strict compliance with MAR 7.1(a).
14 Morello's counsel asserted that her counsel was served at 4:20 pm, the trial court closed at 4:30
pm, and, thus, the certificate of service could not have been filed after actual service; Vonda did
not dispute this assertion. Nevertheless, it is uncontroverted that by the close of business on May
11, Vonda's certificate of service was correct that Morello's counsel had been served. Morello
cites no authority allowing us to look behind the certificate of service itself, the language of which
on its face proves that Morello was served with Vonda's request for trial de novo that day.
9
No. 40959-3-II
Second, Morrello did not dispute that she actually received personal service of Vonda's
10
No. 40959-3-II
request for trial de novo on May 11,15 consistent with Vonda's certified proof of service. Despite
Morrello's questioning the sequence of service and filing of Vonda's request, it was
uncontroverted that both were accomplished on May 1116 (within 20 days of the arbitrator's
award, the time within which former MAR 7.1(a) required these acts to happen). This evidence in
the record before us is sufficient under Alvarez to constitute "some evidence of the time, place,
and manner of service."17 153 Wn.2d at 840 (emphasis added). In other words, under Alvarez,
when post-arbitration service of a request for trial de novo is accomplished by personal delivery,
there must be more evidence than mere recitation of the intended method of service, but formal
proof of service is not necessarily required.18
15 We recognize that in Alvarez, there similarly was no question that counsel had actually been
served. But, unlike in Alvarez, where there was no proof of service that satisfied the rule, here,
there was timely filed, undisputed proof of actual personal service. Rather than disputing actual
service, Morello alleged impossibility of service having been accomplished before the certificate
of service was filed.
16 Nothing in former MAR 7.1(a) or LMAR 7.1 expressly required that service and filing of a
request for trial de novo and proof of service had to be performed in any specific sequence.
Moreover, Vonda forthrightly explained in her trial de novo request that she was filing and
serving her notice to set for jury trial on "all parties" "at the same time as the filing of this
Request." CP at 6. Such roughly simultaneous filing and service by hand delivery do not fall
short of strict compliance with the rules, which require only that such service and filing be
accomplished with 20 days of the arbitrator's award.
17 The Supreme Court in Alvarez did not (1) specify what form of "proof" is required to show that
the documents were actually served; (2) hold that formal proof of service is required or that
something like a declaration of delivery (or a certificate of service) is not sufficient under former
MAR 7.1; or (3) require anything more than a statement indicating the date, time, and place of
service and some type of proof of receipt of such service. Instead, the court held that a
"declaration of delivery" indicating only the intended method of service is not sufficient and that,
to satisfy MAR 7.1, the declaration or other proof must show "that the opposing party received a
copy of its request for trial de novo." Alvarez, 153 Wn.2d at 840. Such was the proof here.
18 Here, however, as we have noted in the preceding subsection of this analysis, there was also
11
No. 40959-3-II
The facts here do not support the trial court's legal conclusion that Vonda failed to
comply strictly with former MAR 7.1(a).19 On the contrary, the record shows that Vonda strictly
complied with former MAR 7.1(a)'s proof of service requirements by timely serving Morello with
a copy of the request for trial de novo by hand and by timely filing a certificate that a copy was
served on Morello.20 Therefore, we affirm, on these alternate grounds, the trial court's denial of
Morello's request to strike Vonda's request for trial de novo.21 We also deny Morello's request
for attorney fees and costs on appeal, and we remand for further proceedings.
Hunt, J.
I concur:
Quinn-Brintnall, J.
proof of actual service in the form of the certificate of service.
19 In a statement of additional authorities, Morello directs us to Brackman v. City of Lake Forest
Park, 163 Wn. App. 889, 262 P.3d 116 (2011). Brackman does not apply here because it
addresses the sufficiency of a certificate of service by mail, not by hand delivery, as was the case
here. Under former MAR 7.1(a), formal proof of service, such as an affidavit of service, was not
required when the request for trial de novo was hand delivered, as was the case here. Alvarez,
153 Wn.2d at 840.
20 Evidence at the hearing on Morello's motion to strike later demonstrated that Vonda may have
actually delivered the documents to Morello after she (Vonda) filed the certificate of service with
the court. See Verbatim Report of Proceedings at 3. Nevertheless, Vonda's certificate of service
was accurate once the documents were served on Morello's counsel, which, the parties agree,
occurred on May 11.
21 Costich, 152 Wn.2d at 477 (we can affirm the trial court on any ground the record supports).
12
No. 40959-3-II
Armstrong, J. (dissenting) -- Because the law requires strict compliance with MAR
7.1(a), the trial court erred in denying Morello's motion to strike Vonda's request for trial de
novo. Therefore, I respectfully dissent.
Vonda filed a request for trial de novo and a Certificate of Service on May 11, at 3:42
p.m., 20 days after the arbitration award. Vonda's request for trial de novo stated:
Pursuant to LMAR 7.1 a Notice to Set for Trial and Jury Demand . . . is being
filed and served upon all parties at the same time as the filing of this Request for
Trial De Novo by the undersigned aggrieved party.
Clerk's Papers (CP) at 6 (emphasis added). In contrast, Vonda's Certificate of Service stated:
I hereby certify that on May 11, 2010 I served the foregoing
DEFENDANT VONDA'S REQUEST FOR TRIAL DE NOVO, NOTICE TO
SET FOR TRIAL and ARBITRABILITY, and DEMAND FOR JURY. . . .
CP at 30. Moreover, Vonda's Notice to Set Trial certified that all counsel "have been served
with a copy of this notice." CP at 4 (emphasis added).
Review of Trial Court's Denial of Morello's Motion
Former MAR (7.1) (2001) provides, in 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.
This rule expressly requires the aggrieved party to serve and file two documents with the
clerk: (1) a written request for a trial de novo in the superior court and (2) proof that a copy has
been served upon all other parties appearing in the case. "One act, in short, is not complete
without the other. That . . . is made manifest by the clear language of MAR 7.1(a) to the effect
13
No. 40959-3-II
that the request for a trial de novo be filed 'along with' proof of service." Nevers v. Fireside,
Inc., 133 Wn.2d 804, 813-14, 947 P.2d 721 (1997) (interpreting former MAR 7.1(a) (1989),
which is substantively similar to former MAR 7.1(a) (2001)). We require strict compliance with
the service and proof of service provisions of MAR 7.1(a). Nevers, 133 Wn.2d at 811-12.
The majority concludes the trial court's findings are supported because when Vonda's
counsel filed proof of service, along with her trial request, at 3:42 p.m., she stated that she "had
served" Morello. Majority at 7. It also concludes that the record supports the trial court's
finding that actual service was not made until 4:20 p.m. by a process server, not Vonda's counsel.
Majority at 7. But then the majority finds no support for the trial court's finding that no proof of
the actual receipt of Vonda's request for trial de novo was filed within the time allowed by MAR
7.1(a). See Majority at 7.
The majority reasons that Vonda's Certificate of Service provides "some evidence of the
time, place, and manner of service." Majority at 7 (citing Alvarez v. Banach, 153 Wn.2d 834,
838, 109 P.3d 402 (2005)). The Certificate of Service would provide such evidence if the trial
court had not found in its unchallenged and uncontested findings that Morello's counsel had not
been served before Vonda's counsel filed the trial de novo request at 3:42 p.m. In fact, counsel's
3:42 p.m. affidavit of service was false. Morello's counsel was not served until 4:20 p.m. on May
11, the service was by a courier, not Vonda's counsel, and Vonda could not, and did not, file
another request for trial de novo with proof of service after actual service on Morello's counsel.
And failure to file proof of service within the 20-day period is fatal to a MAR 7.1(a) request for
trial de novo. Nevers, 133 Wn.2d at 815.
14
No. 40959-3-II
Implicit in the majority's reasoning is that a false affidavit of service strictly complies with
MAR 7.1(a). Because I find it difficult to believe that the Supreme Court, when crafting the
language of MAR 7.1(a), intended that any affidavit of service, true or false, would satisfy the
rule, I disagree; counsel's affidavit of a service that had not occurred cannot satisfy the rule.
Our Supreme Court reversed this court in Alvarez, 153 Wn.2d at 840, and explained:
We employed the past tense when we promulgated the rule, which provides that
the request for a trial de novo must be filed in superior court "along with proof
that a copy has been served upon all other parties appearing in the case." MAR
7.1(a) (emphasis added).
Vonda failed to file proof of service after the actual service on Morello's counsel. We
should reverse and remand for the trial court to strike Vonda's request for a trial de novo.
____________________________________
Armstrong, J.
15
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