THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MILENA KHMELNITSKAYA, No. 82823-1-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
ZHAOXIANG WANG and JANE DOE WANG, husband and wife, and the marital community composed thereof,
Respondents.
ANDRUS, C.J. — Milena Khmelnitskaya appeals the order striking her
request for a trial de novo filed after an adverse arbitration decision arising out of
a motor vehicle collision with Zhaoxiang Wang. Because Khmelnitskaya failed to
sign the request for a trial do novo within the statutory time period, as required both
by statute and court rule, we affirm.
FACTS
Milena Khmelnitskaya and Zhaoxiang Wang were involved in a motor
vehicle collision on January 5, 2019 in Bellevue. The parties disputed liability and
Khmelnitskaya sued Wang for negligence. On October 7, 2020, Khmelnitskaya
filed a statement of arbitrability and the court transferred the case to arbitration.
At an April 13, 2021 arbitration, the arbitrator found for Wang and entered
an arbitration award in his favor. On May 3, 2021, Khmelnitskaya’s attorney filed
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82823-1-I/2
a notice of withdrawal and substitution of counsel and, the same day, her new
attorney filed a request for a trial de novo. The request did not include
Khmelnitskaya’s signature and was signed only by her attorney.
Wang filed a motion to strike the request based on Khmelnitskaya’s failure
to sign it, as required by both RCW 7.06.050 and Superior Court Civil Arbitration
Rule (SCCAR) 7.1. The court granted Wang’s motion on May 27, 2021. The
parties stipulated to an order of dismissal with prejudice, which the court granted
on June 15, 2021. The order noted that “[b]y striking the Request for Trial de Novo,
the court made a decision determining [the] action,” and that the stipulation “is not
intended to be construed as a waiver of Plaintiff’s right to seek review of the court’s
Order on Defendant’s motion.”
Khmelnitskaya appeals.
ANALYSIS
RCW 7.06.050(1) provides:
Within twenty days after [the arbitrator files their decision and award with the clerk of superior court], any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. The notice must be signed by the party. Such trial de novo shall thereupon be held, including a right to jury, if demanded.
(Emphasis added.) The court rule implementing this statute, SCCAR 7.1(b), like
RCW 7.06.050(1), explicitly requires that a party sign the form requesting a trial de
novo. The court rule provides:
(b) Form. The request for a trial de novo shall not refer to the amount of the award, including any award of costs or attorney fees, and shall be substantially in the form set forth below, and must be signed by the party:
-2- No. 82823-1-I/3
SUPERIOR COURT OF WASHINGTON FOR [_______________] COUNTY
___________________________, ) No. ______ Plaintiff, ) v. ) REQUEST FOR __________________________, ) TRIAL DE NOVO Defendant. )
TO: The clerk of the court and all parties:
Please take notice that [name of aggrieved party] requests a trial de novo from the award filed [date]____.
Dated: _________________ _________________________ [Signature of aggrieved party] [Printed Name]: [Title, if applicable]
[Name of attorney for aggrieved party
In Hanson v. Luna-Ramirez, 19 Wn. App. 2d 459, 462, 496 P.3d 314 (2021)
and Mangan v. Lamar, 18 Wn. App. 2d 93, 96-97, 496 P.3d 1213 (2021), this court
held that RCW 7.06.050(1) and SCCAR 7.1(b) are clear and unambiguous: a
request for a trial de novo must be signed by the aggrieved party and the signature
of that party’s attorney alone is insufficient to comply with the statute or court rule.
Despite this precedent, Khmelnitskaya argues that the signature
requirement contained in RCW 7.06.050 and SCCAR 7.1 is not a “core filing
requirement,” that the legislature’s use of the words “must” and “shall in the statute
renders it ambiguous, that her failure to sign the request was excusable error, and
that her attorney conducted “ordinary diligence” in filing the request without his
client’s signature by using a form his paralegal found on a court web site. We
reject these arguments.
-3- No. 82823-1-I/4
First, Khmelnitskaya contends that the legislature’s use of the word “must”
as opposed to “shall” when it added the signature requirement to RCW 7.06.050
renders the statute ambiguous. Had the legislature used the word “shall,” she
suggests, rather than the word “must” in the sentence relating to signing the notice,
it would have demonstrated an intent to make the party’s signature mandatory.
But, she contends, the word “must” means something different. We see no
difference between the plain meaning of the words “shall” and “must” in legislation;
they both denote a mandatory requirement. “Must,” in this context, means “is
required by law.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1492 (2002).
“Shall,” in the legislative context, similarly means “used in laws, regulations, or
directives to express what is mandatory.” Id. at 2085. The statute is not
ambiguous.
Next, Khmelnitskaya contends that strict compliance with RCW 7.06.050 is
not required because a party’s signature is not a “core filing requirement,” citing
Justice Chambers’s concurrence in Alvarez v. Banach, 153 Wn.2d 834, 109 P.3d
402 (2005). In that case, a majority of our Supreme Court held that Superior Court
Mandatory Arbitration Rule (MAR) 7.1, SCCAR 7.1’s predecessor, required strict
compliance with its filing requirements. 1 Id. at 838. The court held that the
plaintiff’s failure to prove he had served the opposing party with his trial de novo
request failed to meet the strict compliance requirements of the court rule. Id. at
840.
1 The Supreme Court and this court have consistently required strict compliance with filing requirements of MAR 7.1. See Nevers v. Fireside, Inc., 133 Wn.2d 804, 815, 947 P.2d 721 (1997); Roberts v. Johnson, 137 Wn.2d 84, 90, 969 P.2d 446 (1999); Wiley v. Rehak, 143 Wn.2d 339, 344, 20 P.3d 404 (2001); Malted Mousse v. Steinmetz, 150 Wn.2d 518, 529, 79 P.3d 1154 (2003); Vanderpol v. Schotzko, 136 Wn. App.
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THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MILENA KHMELNITSKAYA, No. 82823-1-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
ZHAOXIANG WANG and JANE DOE WANG, husband and wife, and the marital community composed thereof,
Respondents.
ANDRUS, C.J. — Milena Khmelnitskaya appeals the order striking her
request for a trial de novo filed after an adverse arbitration decision arising out of
a motor vehicle collision with Zhaoxiang Wang. Because Khmelnitskaya failed to
sign the request for a trial do novo within the statutory time period, as required both
by statute and court rule, we affirm.
FACTS
Milena Khmelnitskaya and Zhaoxiang Wang were involved in a motor
vehicle collision on January 5, 2019 in Bellevue. The parties disputed liability and
Khmelnitskaya sued Wang for negligence. On October 7, 2020, Khmelnitskaya
filed a statement of arbitrability and the court transferred the case to arbitration.
At an April 13, 2021 arbitration, the arbitrator found for Wang and entered
an arbitration award in his favor. On May 3, 2021, Khmelnitskaya’s attorney filed
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82823-1-I/2
a notice of withdrawal and substitution of counsel and, the same day, her new
attorney filed a request for a trial de novo. The request did not include
Khmelnitskaya’s signature and was signed only by her attorney.
Wang filed a motion to strike the request based on Khmelnitskaya’s failure
to sign it, as required by both RCW 7.06.050 and Superior Court Civil Arbitration
Rule (SCCAR) 7.1. The court granted Wang’s motion on May 27, 2021. The
parties stipulated to an order of dismissal with prejudice, which the court granted
on June 15, 2021. The order noted that “[b]y striking the Request for Trial de Novo,
the court made a decision determining [the] action,” and that the stipulation “is not
intended to be construed as a waiver of Plaintiff’s right to seek review of the court’s
Order on Defendant’s motion.”
Khmelnitskaya appeals.
ANALYSIS
RCW 7.06.050(1) provides:
Within twenty days after [the arbitrator files their decision and award with the clerk of superior court], any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. The notice must be signed by the party. Such trial de novo shall thereupon be held, including a right to jury, if demanded.
(Emphasis added.) The court rule implementing this statute, SCCAR 7.1(b), like
RCW 7.06.050(1), explicitly requires that a party sign the form requesting a trial de
novo. The court rule provides:
(b) Form. The request for a trial de novo shall not refer to the amount of the award, including any award of costs or attorney fees, and shall be substantially in the form set forth below, and must be signed by the party:
-2- No. 82823-1-I/3
SUPERIOR COURT OF WASHINGTON FOR [_______________] COUNTY
___________________________, ) No. ______ Plaintiff, ) v. ) REQUEST FOR __________________________, ) TRIAL DE NOVO Defendant. )
TO: The clerk of the court and all parties:
Please take notice that [name of aggrieved party] requests a trial de novo from the award filed [date]____.
Dated: _________________ _________________________ [Signature of aggrieved party] [Printed Name]: [Title, if applicable]
[Name of attorney for aggrieved party
In Hanson v. Luna-Ramirez, 19 Wn. App. 2d 459, 462, 496 P.3d 314 (2021)
and Mangan v. Lamar, 18 Wn. App. 2d 93, 96-97, 496 P.3d 1213 (2021), this court
held that RCW 7.06.050(1) and SCCAR 7.1(b) are clear and unambiguous: a
request for a trial de novo must be signed by the aggrieved party and the signature
of that party’s attorney alone is insufficient to comply with the statute or court rule.
Despite this precedent, Khmelnitskaya argues that the signature
requirement contained in RCW 7.06.050 and SCCAR 7.1 is not a “core filing
requirement,” that the legislature’s use of the words “must” and “shall in the statute
renders it ambiguous, that her failure to sign the request was excusable error, and
that her attorney conducted “ordinary diligence” in filing the request without his
client’s signature by using a form his paralegal found on a court web site. We
reject these arguments.
-3- No. 82823-1-I/4
First, Khmelnitskaya contends that the legislature’s use of the word “must”
as opposed to “shall” when it added the signature requirement to RCW 7.06.050
renders the statute ambiguous. Had the legislature used the word “shall,” she
suggests, rather than the word “must” in the sentence relating to signing the notice,
it would have demonstrated an intent to make the party’s signature mandatory.
But, she contends, the word “must” means something different. We see no
difference between the plain meaning of the words “shall” and “must” in legislation;
they both denote a mandatory requirement. “Must,” in this context, means “is
required by law.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1492 (2002).
“Shall,” in the legislative context, similarly means “used in laws, regulations, or
directives to express what is mandatory.” Id. at 2085. The statute is not
ambiguous.
Next, Khmelnitskaya contends that strict compliance with RCW 7.06.050 is
not required because a party’s signature is not a “core filing requirement,” citing
Justice Chambers’s concurrence in Alvarez v. Banach, 153 Wn.2d 834, 109 P.3d
402 (2005). In that case, a majority of our Supreme Court held that Superior Court
Mandatory Arbitration Rule (MAR) 7.1, SCCAR 7.1’s predecessor, required strict
compliance with its filing requirements. 1 Id. at 838. The court held that the
plaintiff’s failure to prove he had served the opposing party with his trial de novo
request failed to meet the strict compliance requirements of the court rule. Id. at
840.
1 The Supreme Court and this court have consistently required strict compliance with filing requirements of MAR 7.1. See Nevers v. Fireside, Inc., 133 Wn.2d 804, 815, 947 P.2d 721 (1997); Roberts v. Johnson, 137 Wn.2d 84, 90, 969 P.2d 446 (1999); Wiley v. Rehak, 143 Wn.2d 339, 344, 20 P.3d 404 (2001); Malted Mousse v. Steinmetz, 150 Wn.2d 518, 529, 79 P.3d 1154 (2003); Vanderpol v. Schotzko, 136 Wn. App. 504, 507, 150 P.3d 120 (2007). -4- No. 82823-1-I/5
In a concurrence, Justice Chambers noted that “while we require strict
compliance with the time requirements of filing a request for trial de novo, we have
never required that the form of the proof of service requires strict compliance.” Id.
at 841. Khmelnitskaya relies on this sentence to argue that strict compliance with
the signature requirement of RCW 7.06.050 is not necessary.
But Alvarez did not address the party-signature requirement. The only issue
in Alvarez was whether the plaintiff had filed adequate proof of service. The court
concluded that the declaration of service, which said the trial de novo request was
“to be served” on a particular date, and not that it was in fact served, failed to
comply with the MAR 7.1 proof of service requirement. Id. at 840. Justice
Chambers concurred in this holding. Khmelnitskaya’s reliance on his concurrence
is therefore misplaced.
Khmelnitskaya also asks us to apply Splattstoesser v. Scott, 159 Wn. App.
332, 246 P.3d 230 (2011) and to require only substantial compliance, rather than
strict compliance, with SCCAR 7.1. In Splattstoesser, Division Three held that a
2001 amendment to MAR 7.1(a) requiring the form of the notice to be “in
substantially the form set forth below,” superseded prior Supreme Court precedent
requiring strict compliance with the rule’s filing requirements. Id. at 336-38.
SCCAR 7.1, like its predecessor rule, contains the same language. The court
concluded that a defendant who filed a timely request for a trial de novo
substantially complied with MAR 7.1(a)’s format requirements despite
misidentifying the name of the defendant in the body of the form. Id. The caption
correctly identified the defendant, there was only one defendant in the lawsuit, and
the form clearly requested a trial de novo for the defendant. Id. at 334. Under -5- No. 82823-1-I/6
these circumstances, Division Three held that the trial court did not abuse its
discretion in concluding that the defendant had substantially complied with the rule.
Id. at 339.
There are two problems with following Splattstoesser here. First, even if
the court rule permits less than strict compliance, the statute does not. There was
no contention in Splattstoesser that the party failed to comply with a statute
requiring a party to sign a pleading. Second, either the party signed or she did not.
Khmelnitskaya concedes she did not sign the notice within the twenty day period
for doing so. As we stated in Mangan, “[n]oncompliance is not substantial
compliance.” 18 Wn. App. 2d at 97. Even if substantial compliance were sufficient,
she failed to demonstrate it.
Khmelnitskaya next argues that her failure to sign the request was
excusable error, citing cases she contends are analogous. But these cases do not
involve SCCAR 7.1 and do not hold that the omission of a statutorily-required
signature is excusable error. See Reichelt v. Raymark Indus., Inc., 52 Wn. App.
763, 765, 764 P.2d 653 (1988) (RAP 18.8(b) permits appellate courts to enlarge
the time in which a party may file a notice of appeal under “extraordinary
circumstances”); Griffith v. City of Bellevue, 130 Wn.2d 189, 194, 922 P.2d 83
(1996) (CR 11 governed whether a timely petition for writ of certiorari under RCW
7.16.050 should be dismissed for lack of signature).
Finally, Khmelnitskaya argues that her failure to sign the request for trial de
novo was excusable error because her attorney conducted ordinary diligence and
reasonably relied on a form that the trial court posted on its web site—a form she
contends lacks any reference to the need for the party to sign it. But both the -6- No. 82823-1-I/7
statute and current court rule put parties on notice that the aggrieved party is
required to execute this form before filing it in superior court. The current court
rule, and not an outdated form inconsistent with the rule, governs.
Moreover, Wang presented evidence that the form Khmelnitskaya used was
dated March 2019, whereas another form available on the superior court’s website,
with a revision date of August 2019, had been updated to reflect the new statutory
requirement and SCCAR 7.1 form language. 2 The trial court did not abuse its
discretion in determining that Khmelnitskaya’s reliance on a court form, without
reviewing the applicable statute and court rule, was not excusable neglect.
We adhere to our decisions in Hanson, 19 Wn. App. 2d 459, and Mangan,
18 Wn. App. 93, to hold that the trial court did not err in striking Khmelnitskaya’s
request for a trial de novo.
Affirmed.
WE CONCUR:
2 To be fair, we found both forms, one dated March 2019 and one dated August 2019, on different
pages of the King County web site. See https://kingcounty.gov/courts/clerk/forms.aspx (No. 48 Request for Trial de Novo and for Clerk to Seal Arbitration Award with 3/13/19 revision date, without separate signature line for aggrieved party); and https://kingcounty.gov/courts/superior- court/civil/arbitration-forms.aspx (Request for Trial De Novo with “8/19” revision date with separate signature line for aggrieved party) (last visited June 13, 2022). -7-