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Guess v. Lee3/16/2005
Argued and submitted December 6, 2004.
Affirmed.
This is a personal injury action for damages arising out of a motor vehicle accident. Plaintiff appeals from a judgment entered on a jury verdict for defendant after defendant appealed from an underlying arbitrator's award in plaintiff's favor. In her sole assignment of error, plaintiff asserts that the trial court erred in denying her motion to enter judgment on the arbitrator's award on the ground that defendant's notice of appeal from the award was untimely under ORS 36.425(2)(a). We affirm.
The pertinent facts are undisputed. Plaintiff filed this action in May 2001. Thereafter, the trial court transferred the case to its court-annexed mandatory arbitration program. See ORS 36.400 - 36.425. On August 14, 2002, the arbitrator filed his award with the trial court clerk. On September 4, 21 days after the award was filed, defendant filed with the clerk a notice of appeal and request for trial de novo of the action. The clerk accepted the notice of appeal and, on September 5, the court returned the case to its active trial calendar. On October 3, plaintiff filed a motion for entry of judgment on the arbitrator's award. The trial court denied the motion. In January 2003, the case was tried to a jury, and plaintiff appeals from the ensuing judgment on the jury's verdict for defendant.
Plaintiff asserts that defendant's notice of appeal from the arbitrator's award was untimely and, therefore, that the trial court erred in denying plaintiff's motion for judgment on the award. Plaintiff relies on ORS 36.425(2)(a), which provides:
"Within 20 days after the filing of a decision and award with the clerk of the court under subsection (1) of this section, a party against whom relief is granted by the decision and award or a party whose claim for relief was greater than the relief granted to the party by the decision and award, but no other party, may file with the clerk a written notice of appeal and request for a trial de novo of the action in the court on all issues of law and fact. A copy of the notice of appeal and request for a trial de novo must be served on all other parties to the proceeding. After the filing of the written notice a trial de novo of the action shall be held. If the action is triable by right to a jury and a jury is demanded by a party having the right of trial by jury, the trial de novo shall include a jury."
Defendant responds that she timely filed the notice of appeal because the arbitrator served the award on the parties by mail. According to defendant, that method of service afforded her an additional three days within which to file the notice of appeal under ORCP 10 C, which provides:
"Except for service of summons, whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served by mail, 3 days shall be added to the prescribed period."
Plaintiff replies that ORCP 10 C is inapposite because the limitation period of ORS 36.425(2)(a) is triggered by the filing of the arbitration decision and award, while ORCP 10 C pertains to, and is triggered by, "service of a notice or other paper." That is, the time period for filing a notice of appeal and request for trial de novo under ORS 36.425(2)(a) is explicitly measured against when the arbitrator's decision and award is filed and not against when the decision and award is served. In a related vein, plaintiff argues that the provisions of ORCP 10 do not apply to arbitration because chapter 13 of the Uniform Trial Court Rules, which governs court-annexed arbitrat
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