Amanda Butler, V. James Finneran

• Court: Court of Appeals of Washington
• Decided: August 30, 2022
• Docket: 55136-5
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

August 30, 2022

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II AMANDA BUTLER, an individual, No. 55136-5-II

Respondent,

v.

JAMES FINNERAN and “JANE DOE” ORDER GRANTING MOTION TO FINNERAN, husband and wife, PUBLISH

Appellant.

Non-party applicant Washington State Association for Justice Foundation filed a motion

to publish this court’s opinion filed on June 22, 2022. After consideration, the court grants the

motion. It is now

ORDERED that the opinion will be published.

PANEL: Jj. Worswick, Cruser, Veljacic

FOR THE COURT:

_________________________________________ CRUSER, A.C.J. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two

June 22, 2022

JAMES FINNERAN and “JANE DOE” UNPUBLISHED OPINION FINNERAN, husband and wife,

CRUSER, A.C.J. – Amanda Butler sued James Finneran following a motor vehicle accident,

and the parties attended arbitration. After an unfavorable arbitration award, Finneran filed a request

for trial de novo that included only a signature by his attorney. Butler moved to strike the request,

arguing that Finneran was required to sign the request himself, and the trial court granted her

motion. Finneran appeals the court’s order granting Butler’s motion to strike his request for trial

de novo and a subsequent judgment that includes an award of attorney fees to Butler.

We hold that the trial court did not err by granting Butler’s motion to strike Finneran’s

request for trial de novo because he was required to sign the request. In addition, we hold that it

was not error for the trial court to award fees to Butler. We also grant Butler’s request for attorney

fees on appeal in an amount to be determined by the court commissioner. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 55136-5-II

FACTS

Butler and Finneran were involved in a motor vehicle accident in 2018. In August 2020,

the parties attended arbitration pursuant to the Superior Court Civil Arbitration Rules (SCCAR)1

and the Pierce County Local Superior Court Civil Arbitration Rules. After the arbitrator filed the

award with the superior court, Finneran filed a request for trial de novo and a jury demand. The

request for trial de novo included only a signature by Finneran’s counsel; Finneran did not sign

the request himself.

Butler then moved to strike Finneran’s request for trial de novo on the basis that the request

must be signed by the aggrieved party under RCW 7.06.050 and SCCAR 7.1. In response, Finneran

argued that his attorney’s signature on the request was sufficient and that he authorized his attorney

to file the request on his behalf. At the hearing on the motion, Finneran explained that he used the

Pierce County form found on the LINX website, which “did not include the updated requirement

for the signature, but it’s substantially the same.” Verbatim Report of Proceedings (VRP) at 11-

12. The trial court believed it was unfair to strike Finneran’s request, but nevertheless granted

Butler’s motion to strike the request for trial de novo.

Butler then moved for an award of attorney fees and entry of judgment. The court granted

Butler’s motion and entered judgment in favor of Butler with an award of attorney fees.

Finneran appeals the trial court’s orders granting Butler’s motion to strike his request for

trial de novo and the judgment awarding attorney fees to Butler. The Washington State Association

1 The SCCARs were previously known as the Mandatory Arbitration Rules (MAR). In re Suggested Amendments to Mandatory Arbitration Rules, No. 25700-A-1271, at 1 (Wash. Nov. 6, 2019), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/25700A1271.pd f. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

for Justice Foundation filed an amicus brief that supports Butler’s argument to affirm the trial

court’s order granting her motion to strike.

DISCUSSION

I. Request for Trial de Novo

Finneran argues that the trial court erred by striking his request for trial de novo because

an attorney’s signature on the request is sufficient to bind the client. Butler argues that the trial

court properly struck Finneran’s request for trial de novo because he was required to sign it

himself, rather than only his attorney. We agree with Butler.

A. LEGAL PRINCIPLES

1. Principles of Statutory Interpretation

Statutory interpretation is an issue of law reviewed de novo. Dep’t of Ecology v. Campbell

& Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Our goal is to “ascertain and carry out the

Legislature’s intent.” Id. If the meaning of the statute is plain on its face, we “must give effect to

that plain meaning as an expression of legislative intent.” Id. at 9-10. We discern plain meaning

from the ordinary meaning of the language in the context of related statutory provisions, the entire

statute, and related statutes. Id. at 9-12.

If a statute is susceptible to more than one reasonable interpretation after reviewing the

plain meaning, it is ambiguous. Id. at 12. For ambiguous statutes, we may look to legislative history

and relevant case law to discern legislative intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317

P.3d 1003 (2014). “When we interpret a court rule, similar to when we interpret a statute, we strive

to determine and carry out the drafter’s intent.” Denney v. City of Richland, 195 Wn.2d 649, 653,

462 P.3d 842 (2020).

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

2. Signature Requirement for Request for Trial de Novo

Within 20 days after an arbitration award is filed with the trial court, any aggrieved party

may file a notice of appeal and request for trial de novo. RCW 7.06.050(1). “The notice must be

signed by the party.” RCW 7.06.050(1). The requirement that the notice be signed by the party

was added by legislative amendment in 2018. LAWS OF 2018, ch. 36, § 6.

Under RCW 7.06.030, the supreme court is responsible for adopting procedures to

implement mandatory civil arbitration. Those procedures are contained in the SCCARs. SCCAR

7.1(b) requires a request for trial de novo to be “substantially in the form” set out in the rule. This

form was amended by the supreme court in 2019, after the legislature amended RCW 7.06.050. In

re Suggested Amendments, at 1, 23. The amended court rule now provides that the request for a

trial de novo “must be signed by the party.” Id. at 23. In addition, the signature line in the form

was amended to read, “Signature of aggrieved party,” and the line “Name of attorney for aggrieved

party” was moved below the signature block after having previously been directly under the

signature line. Id.

B. ANALYSIS

Here, it is undisputed that Finneran did not sign the request for trial de novo. Division One

of this court has recently held that a request for trial de novo is ineffective when the request is

signed by the party’s attorney, but not signed by the aggrieved party. See Hanson v. Luna-Ramirez,

19 Wn. App. 2d 459, 462, 496 P.3d 314 (2021); Mangan v. Lamar, 18 Wn. App. 2d 93, 96-97,

496 P.3d 1213 (2021). We agree with Division One and hold that it was proper for the trial court

to grant Butler’s motion to strike Finneran’s request for trial de novo.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Finneran argues that he complied with the signature requirement outlined in RCW

7.06.050(1) and SCCAR 7.1(b) because his attorney’s signature “is an act by Mr. Finneran

himself.” Br. of Appellant at 12. He goes further in his reply brief, arguing that the amendments

to RCW 7.06.050 and SCCAR 7.1 codified Washington case law allowing attorneys to sign a

request for trial de novo on their clients’ behalf, and that this is evident due to the omission of the

word “aggrieved” in the amended statute and court rule. Reply Br. of Appellant at 4. He cites

Russell v. Maas, 166 Wn. App. 885, 272 P.3d 273 (2012) and Engstrom v. Goodman, 166 Wn.

App. 905, 271 P.3d 959 (2012) in support of his argument that his attorney’s signature was binding

on him.

As an initial matter, the authority that Finneran claims supports his position predates the

amendments to RCW 7.06.050 and SCCAR 7.1 that add the signature requirements and, therefore,

does not aid in our interpretation of the current statue and court rule. Hanson, 19 Wn. App. 2d at

462 (“Both Russell and Engstrom were decided before the legislature amended RCW 7.06.050 in

2018, and they have been superseded by statute.”). Finneran’s related argument that an attorney’s

signature is merely a “procedural act” relies on the court’s holding in Russell and is inapposite

given the current language in the statute and court rule. Reply Br. of Appellant at 5-6.

Further, the form provided in SCCAR 7.1(b) for a request for trial de novo negates

Finneran’s argument that a signature by only his attorney is sufficient. Notably, and contrary to

Finneran’s assertions, the form does include the word “aggrieved” on the signature line. SCCAR

7.1(b). “That form expressly includes one signature line designated for the ‘[s]ignature of

aggrieved party,’ and one line designated for the ‘[n]ame of attorney for aggrieved party.’ ”

Hanson, 19 Wn. App. 2d at 462 (alteration in original) (citing SCCAR 7.1(b)). As explained above,

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

these changes were made to the rule after the legislature amended RCW 7.06.050. In re Suggested

Amendments, at 1, 23. If a signature by the aggrieved party’s attorney was sufficient, this differing

language would not appear in the form. SCCAR 7.1(b) now reads that a party’s request for trial de

novo “shall be substantially in the form set forth below, and must be signed by the part y . . .”

(Emphasis added.) A signature from only the party’s attorney is not sufficient.2

Finneran next argues that the trial court’s order striking his request for trial de novo limits

an insurer’s duty to defend. This argument does not substantively differ from Finneran’s argument

that his lawyer was acting as his agent, except to say that his lawyer was authorized by his

insurance contract. He does not explain how the insurance company’s duty to defend him is limited

by a requirement that he sign a request for trial de novo. Nor does Finneran demonstrate how the

trial court’s order striking his request for trial de novo goes against public policy. In his opening

brief, Finneran simply states that the order should be reversed “as a matter of [p]ublic [p]olicy,”

2 The introduction in Finneran’s opening brief states that the form for his request for trial de novo “was supplied by the court and substantially complied with SCCAR 7.1,” and he also mentions this in his issues pertaining to assignments of error. Br. of Appellant at 1. However, the remainder of his brief provided no argument to support this statement. RAP 10.3(a)(6) directs each party to supply in its brief, “argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.” To the extent that Finneran’s reply brief provides argument that he substantially complied with RCW 7.06.050 and SCCAR 7.1, an appellate court does not consider issues argued for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Accordingly, we decline to address this argument. 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

but his argument only frames this as an issue related to an insurer’s duty to defend. Br. of Appellant

at 6, 15 (“Insurance contracts are imbued with public policy concerns.”).3

We hold that the trial court properly struck Finneran’s request for trial de novo because

Finneran did not comply with the requirement that he sign the request.

II. Attorney Fees at the Trial Court

Finneran argues that it was improper for the trial court to award attorney fees to Butler

under SCCAR 7.3 because “neither [party] had the opportunity to improve [their] position” on

Finneran’s request for trial de novo. Br. of Appellant at 6. Butler argues that SCCAR 7.3 mandates

a fee award, regardless of whether the parties proceeded to a trial de novo. We agree with Butler.

We review the legal basis for awarding attorney fees de novo, and we review a trial court’s

decision to award attorney fees, and the reasonableness of the award, for an abuse of discretion.

Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).

SCCAR 7.3 provides: “The court shall assess costs and reasonable attorney fees against a

party who appeals the [arbitration] award and fails to improve the party’s position on the trial de

novo.” Although the rule does not explicitly address a situation where a request for a trial de novo

is stricken on procedural grounds, Washington courts have held that former MAR 7.3 (1993), with

the same language, provided for attorney fees under these circumstances. See Wiley v. Rehak, 143

3 Nevertheless, in Finneran’s reply brief, he states that Butler failed to respond to the issue of whether the trial court’s order violates public policy considerations and that, “[f]or this reason alone,” we should reverse. Reply Br. of Appellant at 9. Considering that Finneran himself failed to present argument on this issue in his opening brief, and provided minimal argument in his reply brief, we decline to consider this argument. See RAP 10.3(a)(6) (directing each party to provide “argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.”); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”). 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Wn.2d 339, 349, 20 P.3d 404 (2001) (party “failed to improve his position because he failed to

comply with the MARs”); Kim v. Pham, 95 Wn. App. 439, 446-47, 975 P.2d 544 (1999)

(“Although not explicitly stated, we interpret MAR 7.3 as requiring a mandatory award of attorney

fees when one requests a trial de novo and does not improve their position at trial because they

failed to comply with requirements for proceeding to a trial de novo such as MAR 7.1(a).”).

Finneran argues that fees under SCCAR 7.3 are not appropriate when a trial de novo has

not yet occurred. However, in the cases Finneran cites in support of this claim, the parties were set

to attend a trial de novo in the future. See Hudson v. Hapner, 170 Wn.2d 22, 34, 239 P.3d 579

(2010) (court could not know whether party would fail to improve her position until after retrial);

Holt v. Gambill, 123 Wn. App. 685, 692, 98 P.3d 1254 (2004) (when trial court properly denied

motion to strike request for trial de novo, fees were not appropriate when the trial de novo had “not

yet occurred.”). If we reversed the trial court’s order striking Finneran’s request for trial de novo,

Finneran would be correct; however, when there will be no future trial de novo, his argument fails.

We hold that the trial court properly awarded fees to Butler under SCCAR 7.3.

ATTORNEY FEES ON APPEAL

Butler requests attorney fees on appeal under RAP 18.1 and SCCAR 7.3. RAP 18.1(a)

provides for recovery of reasonable attorney fees on appeal if granted under “applicable law.” And

under SCCAR 7.3, “[t]he court shall assess costs and reasonable attorney fees against a party who

appeals the [arbitration] award and fails to improve the party’s position on the trial de novo.” It is

proper to award fees on appeal under SCCAR 7.3 when a party has failed to improve his or her

position due to a procedural defect in requesting a trial de novo. See Wiley, 143 Wn.2d at 348

(under former MAR 7.3 (1993)); Kim, 95 Wn. App. at 446-47 (under former MAR 7.3 (1993)).

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Therefore, we award attorney fees to Butler on appeal in an amount to be determined by the court

commissioner.

CONCLUSION

We hold that the trial court properly struck Finneran’s request for trial de novo because

he did not comply with RCW 7.06.050 and SCCAR 7.1 by signing the request. We also hold that

it was proper for the trial court to award fees to Butler under SCCAR 7.3.Accordingly, we affirm

the trial court’s order striking Finneran’s request for trial de novo and judgment awarding fees to

Butler. In addition, we grant Butler’s request for attorney fees on appeal in an amount to be

determined by the court commissioner.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

CRUSER, A.C.J. We concur:

WORSWICK, J.

VELJACIC, J.