Long Painting Company v. Mark N. Donkel

• Court: Court of Appeals of Washington
• Decided: September 8, 2020
• Docket: 79752-2
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LONG PAINTING COMPANY, INC., ) No. 79752-2-I ) Appellant, ) ) DIVISION ONE v. ) ) MARK DONKEL, ) ) PUBLISHED OPINION Respondent. ) )

MANN, C.J. — In order to invoke the appellate jurisdiction of the superior court,

RCW 51.52.110 requires that appeals of the decisions of the Board of Industrial

Insurance Appeals (BIIA) be filed in the superior court, and served on necessary

parties, within 30 days of the BIIA’s final decision. Long Painting Company (Long

Painting) electronically filed a notice of appeal with the King County Superior Court on

the last Friday of the 30-day filing period. On Monday, three days later, the superior

court clerk notified Long Painting that its appeal was rejected and filing fee refunded

because the local superior court rules did not allow electronic filings of administrative

appeals. Almost three months later, Long Painting filed a new notice of appeal by hard

copy—which the superior court dismissed for lack of appellate jurisdiction. Long

Painting appeals and contends that it complied with, or substantially complied, with the

filing requirements of RCW 51.52.110. We disagree and affirm. No. 79752-2-I/2

FACTS

Mark Donkel filed a claim for an occupational injury, alleging that he began

experiencing symptoms of a cervical degenerative disc disease while employed by Long

Painting. The Department of Labor and Industries (Department) denied the claim,

finding that there was no proof of a specific injury during Donkel’s employment, and that

his condition was not an occupational disease as contemplated by RCW 51.08.140. 1

Donkel timely appealed the Department’s denial to the BIIA. An Industrial Appeals

Judge (IAJ) issued a proposed decision and order finding that Donkel’s condition was

an occupational disease under the statute, specifically finding that his diagnosis of

degenerative disc disease arose naturally and proximately from conditions of his

employment with Long Painting. The IAJ reversed and remanded to the Department

with direction to order Long Painting to accept Donkel’s cervical condition as an

occupational disease.

Long Painting appealed the proposed decision and order to the BIIA. The BIIA

amended the findings and conclusions to reflect that Donkel’s employment aggravated,

rather than caused the condition, but otherwise adopted the IAJ’s proposed decision

and order. BIIA sent the decision to Long Painting on May 16, 2018.

On Friday, June 15, 2018, Long Painting electronically filed a notice of appeal in

King County Superior Court. Long Painting mailed the notice of appeal to the Director

of the Department (Director), the BIIA, and Donkel on June 15, 2018. On Monday, June

18, 2018, the superior court clerk notified Long Painting that the notice of appeal was

1 RCW 51.08.140 defines “occupational disease” as “such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.”

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rejected and that the filing fee would be refunded. The court clerk informed Long

Painting that the notice of appeal should have been designated as an administrative law

review petition, and as such, under local court rules it could not be filed electronically.

After receiving the clerk’s notification, counsel for Long Painting e-mailed

Donkel’s counsel and informed them that the appeal would not proceed. He explained:

“turns out my staff got confused about efiling and so they efiled the appeal but the court

is rejecting the appeal as it allegedly is one that needs to be hand delivered so no

superior court appeal on this one.”

Almost three months later, on September 4, 2018, new counsel for Long Painting

filed a hardcopy notice of appeal. That same day, the superior court issued a case

schedule. The case was set for trial on April 1, 2019.

Donkel moved to dismiss, contending that because Long painting failed to timely

file its appeal, the superior court lacked appellate jurisdiction. 2 The superior court

agreed and dismissed Long Painting’s appeal after determining that Long Painting did

not file its appeal within 30 days of receiving the BIIA decision. The court awarded

Donkel reasonable attorney fees and costs. Long Painting appeals.

DISCUSSION

Long Painting argues that because the original, electronic notice of appeal

reached the superior court, the Director, and the BIIA, Long Painting complied with, or

at least substantially complied with, the filing requirements in RCW 52.51.110, and

therefore properly invoked appellate jurisdiction. We disagree.

2 The parties repeatedly use the incorrect phrase “subject matter jurisdiction” instead of the proper term, appellate jurisdiction. See, e.g., Boudreaux v. Weyerhaeuser Co., 10 Wn. App. 2d 289, 307, n.9, 448 P.3d 121 (2019).

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A. Actual Compliance

We first examine whether Long Painting complied with the filing requirements

necessary to invoke the superior court’s appellate jurisdiction. It did not.

Whether a superior court has jurisdiction is a question of law that we review de

novo. Dougherty v. Dep’t of Labor & Indus. for State of Washington, 150 Wn.2d 310,

314, 76 P.3d 1183 (2003). The Industrial Insurance Act provides that the Department

has original jurisdiction over cases involving injured workers and that superior courts

have appellate jurisdiction. Dougherty, 150 Wn.2d at 314; RCW 51.52.110. A party

invokes the superior court’s appellate jurisdiction by filing and serving a notice of appeal

on the Director and the BIIA within 30 days of receiving notice of the BIIA’s final

decision:

within thirty days after the final decision and order of the board upon such appeal has been communicated to such worker, beneficiary, employer or other person . . . such worker, beneficiary, employer or other person aggrieved by the decision and order of the board may appeal to the superior court. If such worker, beneficiary, employer, or other person fails to file with the superior court its appeal as provided in this section within said thirty days, the decision of the board to deny the petition or petitions for review or the final decision and order of the board shall become final.

RCW 51.52.110; Corona v. Boeing Co., 111 Wn. App. 1, 8, 46 P.3d 253 (2002)

(appealing party must file and serve notice within the 30-day appeal period).

Under CR 5(e), the filing of pleadings and other papers with the court means

filing with the clerk of the court. CR 5(e) provides that “[t]he clerk may refuse to accept

for filing any paper presented for that purpose because it is not presented in proper form

as required by these rules or any local rules or practices.” (Emphasis added). King

County Superior Court Local General Rule (KCLGR) (30(b)(4)(A)(i) requires that

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administrative law review petitions “must be filed in paper form rather than e-filed.” In

rejecting Long Painting’s original electronic notice of appeal, the superior court clerk

relied on KCLGR 30(b)(4)(A)(i). The clerk acted within its discretion under CR 5(e).

Long Painting failed to file its notice of appeal within the 30-day period for appeal—a

fact it acknowledged to Donkel the day it received notice from the court clerk.

B. Substantial Compliance

Next, we examine whether the doctrine of substantial compliance applies to the

requirement to file a notice of appeal within 30 days. Long Painting urges us to accept

its substantial compliance in this case. We decline.

The Washington Supreme Court has held that “substantial compliance” with

procedural rules can invoke appellate jurisdiction. In re Matter of Saltis, 94 Wn.2d 889,

896, 621 P.2d 716 (1980). “Substantial compliance has been defined as actual

compliance in respect to the substance essential to every reasonable objective of [a]

statute.” City of Seattle v. Pub. Emp’t Relations Comm’n, 116 Wn.2d 923, 928, 809

P.2d 1377 (1991) (quoting In re Application of Santore, 28 Wn. App. 319, 327, 623 P.2d

702 (1981)). Washington has recognized substantial compliance of a statute when the

party had “actual compliance,” although procedurally faulty, with the “substance” of the

statutory requirement. City of Seattle, 116 Wn.2d at 928. The doctrine of substantial

compliance does not save a party from the failure to comply with statutory time limits,

such as the 30-day filing and service requirements of RCW 51.52.110. Krawiec v. Red

Dot Corp., 189 Wn. App. 234, 241, 354 P.3d 854 (2015). “It is impossible to

substantially comply with a statutory time limit in the same way. It is either complied

with or it is not.” City of Seattle, 116 Wn.2d at 928-29.

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Long Painting relies on Graves v. Vaagen Bros. Lumber, 55 Wn. App. 908, 912,

781 P.2d 895 (1989), Black v. Dep’t of Labor and Indus., 131 Wn.2d 547, 933 P.2d

1025 (1997), and Dougherty to argue that because the original electronic notice of

appeal was received by the superior court, the Director, and the BIIA, prior to the

expiration of the 30-day appeal period, Long Painting substantially complied with RCW

51.52.110. Each case is readily distinguishable.

In Graves, the appellant, Timothy Graves, mailed his notice of appeal to the

superior court six days after receiving notice of the BIIA’s decision—well within the

appeal period. The notice, however, was never received by the superior court. 55 Wn.

App. at 909. The BIIA, the Director, and the employer all received copies of the notice.

Graves, 55 Wn. App. at 909. Upon discovery that the court had not received the notice,

Graves mailed a second copy of the notice of appeal. The second notice was filed

outside the 30-day appeal period. Graves, 55 Wn. App. at 909. The superior court

granted the employer’s motion to dismiss because the notice of appeal was not timely

filed under RCW 51.52.110. Graves, 55 Wn. App. at 909. Division Three of this court

reversed, holding that because the original notice of appeal was mailed well within the

30-day limitation, it was addressed to the correct county, and all parties received the

notice within that 30 days, the appellant’s filing was in substantial compliance of the

statute. Graves, 55 Wn. App. at 913-14. 3

In Graves, any error in service was of no fault of the appellant, who properly

postmarked the notice of appeal. There is a presumption that service by properly

3 The holding in Graves is “a very narrow one confined to the facts which hopefully are unique and unlikely to occur again.” 55 Wn. App. at 913. We do not determine whether Graves was wrongly decided because it is readily distinguishable from the facts here.

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postmarked mail is complete three days after mailing. Vanderpol v. Schotzko, 136 Wn.

App. 504, 508, 150 P.3d 120 (2007). In contrast, Long Painting did not follow the

requirements for filing, ignoring the clear paper filing requirement of KCLGR 30. While

Graves complied with the rules for filing in superior court, Long Painting did not adhere

to the King County court’s filing requirements. In Graves, any delay in filing occurred

after Graves timely mailed the notice of appeal and was related to issues with mailing

beyond Graves’ control. Here, the superior court’s rejection of Long Painting’s filing

resulted from their failure to comply with the proper filing procedures. Further, where

Graves filed a second copy to the court just after learning that the court did not receive

the original notice of appeal, Long Painting failed to seek to remedy its error and file a

hard copy of its notice of appeal until almost three months later, despite being notified of

the defect three days after filing.

In Dougherty, the worker, Daniel Dougherty, filed his notice of appeal in the

Skagit County Superior Court, where his attorney resided, rather than Whatcom County

Superior Court, where the injury occurred. 150 Wn.2d at 313. The superior court

dismissed his case for lack of appellate jurisdiction. Dougherty, 150 Wn.2d at 313. The

Washington Supreme Court held that because the appeal was timely filed in a superior

court, although incorrect, the superior court’s jurisdiction was still invoked.

Dougherty, 150 Wn.2d at 320. The court concluded that “[f]iling an appeal from a

decision of the Board in the wrong county does not defeat subject matter jurisdiction

and can be cured by a change of venue.” Dougherty, 150 Wn.2d at 320. This case

differs from Dougherty, because the holding there was strictly limited to venue, while

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Long Painting’s case centers on filing. Unlike in Dougherty, Long Painting failed to

timely file its notice of appeal in any superior court.

In Black, the worker, Dale Black, sought review of a BIIA decision by mailing the

notice of appeal to the superior court, the BIIA, and to an assistant attorney general who

represented the Department in the case. 131 Wn.2d at 549. The Department alleged

that the worker failed to serve the notice of appeal on the Department’s director as

required by statute. The superior court agreed and dismissed the appeal, finding that

serving the assistant attorney general did not substantially comply with the statutory

requirements of RCW 51.52.110. Black, 131 Wn.2d at 550. Our Supreme Court

reversed, concluding that “service on the assistant attorney general assigned to handle

the case is reasonably calculated to give notice to the interested party, the Department,”

and there was no prejudice. Black, 131 Wn.2d at 555.

In contrast, this case does not concern a claim that Long Painting served the

wrong party. Instead, this case concerns the separate requirement that the notice of

appeal must be filed within 30 days. Long Painting failed to meet the statutory

requirement to file its notice of appeal timely. “Noncompliance with a statutory mandate

is not substantial compliance.” Petta v. Dep’t of Labor & Indus., 68 Wn. App. 406, 409-

10, 842 P.2d 1006 (1992).

This case is far more similar to the facts in Petta. In Petta, worker Thomas

Petta’s attorney directed a process server to serve separate notices of appeal on the

Office of the Attorney General, the Board, and the Director of the Department. 68 Wn.

App. at 407. The server failed to serve the BIIA or the Director, a fact that the Petta’s

attorney did not discover until almost seven months later. Petta, 68 Wn. App. at 407-08.

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The superior court denied the Department’s motion for summary judgment based on

lack of jurisdiction. This court, however, reversed, holding that the appeal should have

been dismissed. Petta, 68 Wn. App. at 407. The court held

in the absence of actual notice, substantial compliance cannot be deemed to have occurred if notice was not in fact served in a manner reasonably calculated to reach the party on whom the statute requires service. The test articulated in Saltis considers whether or not service was made in a manner reasonably calculated to succeed, not whether non-service was reasonably calculated to succeed.

Petta, 68 Wn. App. at 409. Similarly, Long Painting did not, in fact, file its notice of

appeal timely as required by the statute.

Although Long Painting contends that its notice of appeal still reached the court

within 30 days, our substantial compliance analysis does not try to assess the

substance of a party’s intentions, but examines if the requirements of RCW 51.52.110

were met. Petta, 68 Wn. App. at 410, n.2. Long Painting incorrectly e-filed the appeal,

leading to the court rejecting the appeal and returning the filing fee. Because the

doctrine of substantial compliance does not save a party from its failure to comply with

statutory time limits, the court properly rejected Long Painting’s appeal.

For these reasons, we decline to apply the doctrine of substantial compliance. A

failure to file the notice of appeal with the superior court within the 30-day appeal period

neither complies, nor substantially complies with the requirements of RCW 51.52.110.

C. Attorney Fees on Appeal

Donkel seeks his reasonable attorney fees on appeal. Under RAP 18.1, a party

may request reasonable attorney fees on appeal if an applicable law grants the party

the right to recover. Attorney fees may be awarded only when authorized by a contract

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provision, a statute, or a recognized ground in equity. King County v. Vinci Constr.

Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 625, 398 P.3d 1093

(2017).

RCW 51.52.130(1) provides:

If, on appeal to the superior or appellate court from the decision and order of the board . . . in cases where a party other than the worker or beneficiary is the appealing party and the worker’s or beneficiary’s right to relief is sustained, a reasonable fee for the services of the worker's or beneficiary's attorney shall be fixed by the court.

RCW 51.52.130 allows a worker to recover attorney fees when the worker did not

appeal, and the worker’s right to relief is sustained. Because we affirm the superior

court’s dismissal of the appeal, we award Donkel reasonable attorney fees on appeal,

subject to compliance with RAP 18.1.

Affirmed.

WE CONCUR:

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