City of Lakewood v. Cheng

279 P.3d 914, 169 Wash. App. 165
CourtCourt of Appeals of Washington
DecidedJune 29, 2012
DocketNo. 41395-7-II
StatusPublished

This text of 279 P.3d 914 (City of Lakewood v. Cheng) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Lakewood v. Cheng, 279 P.3d 914, 169 Wash. App. 165 (Wash. Ct. App. 2012).

Opinion

Armstrong, J.

¶1 The city of Lakewood (City) challenges the superior court’s decision that Anthony Cheng filed a timely notice of appeal after the municipal court found him guilty of a traffic infraction. We affirm.

Facts

¶2 A Lakewood police officer pursued Cheng after he allegedly ran a red light. Cheng was cited with two traffic violations: failure to stop for a steady red signal in violation of RCW 46.61.055(3) and failure to yield to the right of an emergency vehicle in violation of RCW 46.61.210. After Cheng contested both infractions, the Lakewood Municipal Court found him guilty of the failure to yield infraction on June 15, 2009.1

¶3 The municipal court docketed and filed a notice of appeal that Cheng faxed to the court on July 16, which was 31 days after the municipal court’s finding and 1 day after the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) appeal deadline. RALJ 2.5(a). The City [167]*167moved to dismiss, arguing that the appeal was untimely. Cheng responded with a transmission verification report showing that he had faxed a notice of appeal to the municipal court at 4:02 p.m. on July 15, the last day of the filing deadline. The superior court denied the City’s motion to dismiss the appeal.

¶4 Cheng then renewed his argument that RCW 46.61-.210 should not apply to him because he was driving the “ ‘target vehicle’ ” that had caused the officer to activate his emergency signals. Clerk’s Papers (CP) at 131. The superior court agreed and reversed the infraction.

¶5 After this court granted the City’s motion for discretionary review of both rulings, we held that RCW 46.61.210 does not apply when a police officer is in the process of stopping a motorist for a traffic infraction. State v. Weaver, 161 Wn. App. 58, 60, 248 P.3d 1116 (2011). The City concedes that Weaver disposes of the infraction issue but maintains that it is entitled to relief because the superior court erred in denying its motion to dismiss Cheng’s appeal.

Discussion

¶6 We review this legal issue de novo. State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997). The timely filing of the notice of appeal is the only jurisdictional requirement for a RALJ appeal. RALJ 2.4(a); City of Seattle v. Braggs, 41 Wn. App. 646, 648, 705 P.2d 303 (1985). A notice of appeal must be filed within 30 days after the entry of the final decision the party filing the notice seeks to appeal. RALJ 2.5(a).

¶7 The superior court accepted the transmission verification report that Cheng submitted as evidence that he filed a timely notice of appeal. This report contains a section with defense counsel’s contact and fax information as well as the time and date, and a separate section with the municipal court’s fax information, the time and date, the number of pages faxed, and the notation “OK.” CP at 30. [168]*168This information arguably shows that the court received the fax. See Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 537 (W.D. Pa. 2010) (plaintiff did not file transmission verification report to support claim of facsimile filing on certain date); Rivas v. Rivas, 320 S.W.3d 391, 392, 394 (Tex. App. 2010) (facsimile transmission verification report established that intended recipient received faxed document; “evidence showing a telephonic document transfer to the recipient’s current telecopier number gives rise to a presumption that notice was duly received by the addressee”).

¶8 There is no evidence, however, that the clerk’s office' docketed or filed the July 15 notice of appeal. The municipal court docket shows no entries for July 15 but notes that defense counsel called on July 16 to report that his staff had faxed appeal paperwork with an incorrect caption. (The July 15 notice referred to the district court rather than the municipal court and also referred to the State rather than the City as plaintiff.) The clerk’s office advised counsel to refile the appeal paperwork, which he did after correcting the caption. The municipal court docketed and filed the corrected notice of appeal on July 16. Counsel filed a third notice of appeal on July 27 and, after receiving a delinquency notice, paid the filing fee on September 3.

¶9 The superior court held that without the transmission verification report showing that Cheng faxed a notice of appeal to the municipal court on July 15, it would be required to dismiss the appeal because of the 30-day jurisdictional time limit. But, preferring to consider the case on its merits rather than dismiss on a “questionable procedural issue,” the superior court held that the July 15 notice of appeal was timely:

[I]t sounds like [the City] accepted a fax appeal the very next morning given the exact same circumstances. And so I have in my hand something that would suggest that they received something the night before. Maybe they didn’t acknowledge it, [169]*169but it does appear to me that it was filed on the 30th day and therefore there was a timely filing of a notice of appeal.

Report of Proceedings (Mar. 19, 2010) at 10.

¶10 The City now argues that the superior court erred in ruling that the July 15 filing was adequate because it did not comply with the requirements for facsimile filings in GR 17. This rule sets forth the requirements for electronic filing by fax machine. GR 17; 2 Karl B. Tegland, Washington Practice: Rules Practice GR 17, at 62 (7th ed. 2011).

fll The City’s principal argument is that the July 15 filing does not comport with GR 17 because there is no evidence that the municipal court received it. See GR 17(b)(3) (document transmitted directly to the clerk shall be deemed received at the time the clerk’s fax machine electronically registers the transmission of the first page). But, as explained earlier, the transmission verification report provides proof that the notice of appeal was successfully sent to the clerk’s office fax machine and, thus, arguably satisfies GR 17(b)(3). The superior court so concluded, despite the failure of the clerk’s office to independently acknowledge receipt of the document.

¶12 The City argues, nonetheless, that the July 15 report shows only when Cheng sent the notice of appeal and that this showing is insufficient to prove a timely filing. As support, it cites the Supreme Court’s holding that filing occurs when papers are filed with the clerk of the court and not when they are sent to the clerk of the court. In re Pers. Restraint of Carlstad, 150 Wn.2d 583, 592, 80 P.3d 587 (2003). Carlstad was addressing the validity of the mailbox rule, however, and the time lapse involved in mailing documents.

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Related

State v. Squally
937 P.2d 1069 (Washington Supreme Court, 1997)
State v. Olson
872 P.2d 64 (Court of Appeals of Washington, 1994)
City of Goldendale v. Graves
562 P.2d 1272 (Washington Supreme Court, 1977)
State v. Olson
893 P.2d 629 (Washington Supreme Court, 1995)
Rivas v. Rivas
320 S.W.3d 391 (Court of Appeals of Texas, 2010)
Yeager v. UPMC HORIZON
698 F. Supp. 2d 523 (W.D. Pennsylvania, 2010)
In Re Carlstad
80 P.3d 587 (Washington Supreme Court, 2003)
Graham Thrift Group, Inc. v. Pierce County
877 P.2d 228 (Court of Appeals of Washington, 1994)
State v. Robinson
17 P.3d 653 (Court of Appeals of Washington, 2001)
State v. Squally
132 Wash. 2d 333 (Washington Supreme Court, 1997)
State v. Robinson
104 Wash. App. 657 (Court of Appeals of Washington, 2001)
State v. Weaver
161 Wash. App. 58 (Court of Appeals of Washington, 2011)
City of Seattle v. Braggs
705 P.2d 303 (Court of Appeals of Washington, 1985)
Davidson v. Thomas
780 P.2d 910 (Court of Appeals of Washington, 1989)

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Bluebook (online)
279 P.3d 914, 169 Wash. App. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lakewood-v-cheng-washctapp-2012.