103 Wash. App. 482 | Wash. Ct. App. | 2000
The issue is whether MAR 7.3 mandates an award of reasonable attorney fees when, following arbitration under chapter 7.06 RCW, one party secures the dismissal of the other party’s request for trial de novo, based on the other party’s failure to comply with MAR 7.1(a). We hold that MAR 7.3 mandates an award, although not in the amount sought here.
On August 28, 1992, Ronald Dean Brandenburg and David G. Barnes (collectively Brandenburg) were in an auto accident in Clallam County. In the other vehicle were
On August 18, 1995, Brandenburg sued Cloutier for negligence. On March 22, 1996, the case was noted for mandatory arbitration under chapter 7.06 RCW. On October 8, 1996, the arbitrator filed awards with the trial court clerk that netted out in favor of Brandenburg.
On October 31, 1996, twenty-three days after the arbitrator filed the awards, Cloutier filed a request for trial de novo under RCW 7.06.050 and MAR 7.1.
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.
On April 14, 1998, 17 months after Cloutier’s request for trial de novo, Brandenburg moved to dismiss the request. On June 12, 1998, the trial court granted the motion.
On January 4, 1999, Brandenburg moved for reasonable attorney fees under MAR 7.3. As later supplemented, his motion sought $17,535 in fees incurred from October 28, 1996 to March 5, 1999.
On March 5,1999, the trial court orally denied the motion for fees. On June 7, 1999, the trial court denied the motion by written order. Judgment was entered on the arbitration award, and this appeal followed.
Brandenburg bases his claim for fees on MAR 7.3, Kim v. Pham, and Wiley v. Rehak.
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 attorney fees against a party who voluntarily withdraws a request for trial de novo. . . . Only those costs and reasonable attorney fees incurred after a request for trial de novo is filed may be assessed under this rule.
Kim, a Division One case, “interpret[ed] MAR 7.3 as requiring a mandatory award of attorney fees when one requests a trial de novo and does not improve [his or her] position at trial because [he or she] failed to comply”
Cloutier asks us to disregard Kim, overrule Wiley, and reinterpret MAR 7.3. Believing that Kim and Wiley were rightly decided, we decline.
Having dealt with Cloutier’s arguments, we conclude that MAR 7.3 mandates an award of some fees, and that the trial court erred by denying all fees. For guidance on remand, we also conclude that the trial court did not err by denying a substantial part of the fees that were sought. The first reasonable response to a request for trial de novo is to ascertain, by checking the court file, (a) whether the request was filed within 20 days of the filing of the arbitration award, and (b) whether the request is accompanied by proof of service. If the court file discloses that the request was not properly filed, fees reasonably incurred thereafter are (a) those needed to prepare and present a motion to dismiss, and (b) those needed to resolve any other matters that cannot reasonably wait until after the motion to dismiss has been decided. By October 31, 1996, the court file in this case disclosed that neither a request for trial de novo nor proof of service of such request was filed within 20 days of the filing of the arbitration award.
Reversed and remanded for an award of reasonable fees.
Hunt, A.C.J., and Seinfeld, J., concur.
Review denied at 143 Wn.2d 1012 (2001).
The signature on the request is dated October 24, 1996, but the request was filed a week later.
See Nevers v. Fireside, Inc., 133 Wn.2d 804, 947 P.2d 721 (1997). Brandenburg acknowledged in April 1998 that on October 28, 1996, he was served with Cloutier’s request.
Wiley v. Rehak, 101 Wn. App. 198, 2 P.3d 497, review granted 142 Wn.2d 1001 (2000); Kim v. Pham, 95 Wn. App. 439, 975 P.2d 544, review denied, 139 Wn.2d 1009 (1999).
Kim, 95 Wn. App. at 446.
MAR 7.1(a).
Wiley, 101 Wn. App. at 205.
We reject Cloutier’s attempt to distinguish fees incurred in the appellate court from fees incurred in the trial court. If MAR 7.3 allows fees incurred in the appellate court, as Kim and Wiley held, it necessarily allows fees in the trial court also.
The parties debate the effect of the absence of proof of service. Brandenburg says that the absence of proof of service should not affect the reasonableness of what he did in the fall of 1996, because Nevers was not decided until December 4, 1997. Cloutier says that Nevers was simply a pronouncement of already-existing law (see, e.g., MAR 7.3). We need not reach this issue because the fact that the request for trial de novo was not filed within 20 days of October 8,1996, affects the reasonableness of fees in the same way as Nevers would if applied retroactively. We note in passing that Nevers has been applied retroactively by Division One. Kim, 95 Wn. App. at 444.
