 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alvarez v. Banach3/31/2005
Oral Argument Date: 01/19/2005
En Banc
This case requires us to determine whether a declaration of delivery without further proof that a request for a trial de novo has been served complies with the filing requirements under the Mandatory Arbitration Rules (MAR) 7.1. Division Two of the Court of Appeals determined that the declaration of delivery sufficiently indicated the time, place, and manner of delivery and that proof of actual receipt was not necessary. We disagree and reverse.
FACTS AND PROCEDURAL HISTORY
On September 4, 2000, Sergio Alvarez filed a personal injury action against John Banach in superior court, seeking damages resulting from a motor vehicle accident between the parties. The action was submitted to arbitration where the arbitrator filed an award for Alvarez on June 12, 2002, and filed proof of service for the award on June 19, 2002. Clerk's Papers (CP) at 9.
On June 18, 2002, Banach filed a request for a trial de novo in superior court, along with a declaration of delivery signed by Cheryl B. Lee, secretary of Banach's counsel. The declaration stated in pertinent part: Pursuant to the laws of the State of Washington, the undersigned certifies under penalty of perjury that on June 17, 2002, she sent via Legal Messenger Services to be delivered on June 18, 2002, copies of the following REQUEST FOR TRIAL DE NOVO AND FOR CLERK TO SEAL ARBITRATION AWARD
CP at 6. This declaration also included the address of Raymond Bishop, Alvarez's attorney. On June 19, 2002, Alvarez received a copy of Banach's request for a trial de novo. CP at 99-103.
On reconsideration, the trial court reversed its earlier decision denying Alvarez's motion to strike Banach's request for a trial de novo, finding that the declaration of delivery was insufficient to comply with the dictates of Nevers v. Fireside Inc., 133 Wn.2d 804, 947 P.2d 721 (1997). The trial court entered a judgment in favor of Alvarez for $45,639.81, including costs and attorney fees. CP at 114-15.
Division Two of the Court of Appeals reversed and remanded for a trial de novo, finding that the declaration of delivery itself provided sufficient evidence of the time, manner, and place of timely service by legal messenger and was, therefore, in compliance with MAR 7.1(a). Alvarez v. Banach, 120 Wn. App. 93, 84 P.3d 278 (2004). It stated that proof of actual receipt need not be filed with the request for a trial de novo. Relying on its decision in Manius v. Boyd, 111 Wn. App. 764, 47 P.3d 145 (2002), the court reasoned that the proof of service requirements under the rule are not as strict as the Nevers requirements for filing the request for a trial de novo.
ANALYSIS
Alvarez argues that the Court of Appeals erred in finding that Banach complied with the filing requirements under the Mandatory Arbitration Rules when requesting a trial de novo in superior court. MAR 7.1(a) provides: 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.
(Emphasis added.) If no appeal is filed by the expiration of 20 days, the superior court enters a judgment pursuant to the arbitrator's decision and award. RCW 7.06.050(2).
Under the Mandatory Arbitration Rules, all pleadings and other papers are to be served in accordance with Court Civil Rules (CR) 5 after a case is assigned to an arbitrator. MAR 1.3(b)(2). CR 5 provides that service on an attorney or party shall
Page 1 2 3 4 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|