Morello v. VONDA

277 P.3d 693
Court of Appeals of Washington·Decided April 24, 2012·No. 40959-3-II·Published·Cited by 1 cases

Opinion

277 P.3d 693 (2012)

Laura MORELLO, Appellant,
v.
Rebecka VONDA and John Doe Vonda, husband and wife, and the marital community comprised thereof, Respondent.

No. 40959-3-II.

Court of Appeals of Washington, Division 2.

April 24, 2012.

*694 William Henry Reed, Law Office of William H. Reed, PC, Vancouver, WA, for Petitioner.

Maria Liesl Ruckwardt, Smith Freed & Eberhard PC, Stephen Edward Archer, Smith Freed & Eberhard, Portland, OR, for Respondent.

HUNT, J.

¶ 1 Laura Morello appeals the trial court's denial of her motion to strike Rebecka Vonda's request for a trial de novo following mandatory arbitration. Morello argues that the trial court should have granted her motion because (1) Vonda failed to comply strictly with former Mandatory Arbitration Rule (MAR) 7.1(a) (2001)'s proof of service requirements, and (2) Vonda could not bypass the rule's strict compliance requirement and substitute mere substantial compliance when Vonda's proof of service failed to provide sufficient proof of Morello's actual receipt of service of Vonda's trial de novo request. We affirm and remand for further proceedings.

FACTS

¶ 2 Laura Morello sued Rebecka Vonda and "John Doe Vonda" (Vonda) for personal injuries suffered in a motor vehicle accident and submitted the claim to mandatory arbitration. On April 21, 2010, the arbitrator filed an arbitration award in Morello's favor. Twenty days later, at 3:42 PM on May 11, Vonda filed a request for trial de novo and a "Certificate of Service"[1] under former MAR 7.1 and Local Rules for Mandatory Arbitration Rule (LMAR) 7.1.[2] Vonda's trial de novo request contained the following statement:

3. Pursuant to LMAR 7.1 a Notice to Set for Trial and Jury Demand ... IS being filed and served upon all parties at the same time as the filing of this Request for Trial De Novo by the undersigned aggrieved party.

*695 Clerk's Papers (CP) at 6 (emphasis added). Vonda's certificate of service stated:

I hereby certify that on May 11, 2010 I served the foregoing DEFENDANT VONDA'S REQUEST FOR TRIAL DE NOVO, NOTICE TO SET FOR TRIAL and ARBITRABILITY, and DEMAND FOR JURY on:
William H[.] Reed Reed Johnson & Snider, P.C. Attorneys at Law 201 NE Park Plaza Drive, Suite 248 Vancouver, WA 98684 FACSIMILE: XXX-XXX-XXXX Of Attorneys for Plaintiff
... by hand delivering to each of the foregoing a copy thereof to the address listed above.

CP at 30. Cliff J. Wilson, an attorney from Vonda's counsel's firm, signed the certificate of service for Vonda's counsel. In addition, as required by Clark County Local Rule (LR) 40(b)(a),[3] Vonda's Notice to Set for Trial, signed by Wilson for Maria Liesl "Sam" Ruckwardt, certified that all counsel "have been served with a copy of this notice." CP at 4.

¶ 3 Morello moved to strike Vonda's request for trial de novo, asserting that Vonda had not provided proper proof of service because (1) former MAR 7.1(a) required Vonda to have filed "`a written request for trial de novo in the Superior Court along with proof that a copy has been served upon all other parties appearing in the case'"[4]; (2) a courier, not Vonda's counsel personally (as attested in the certificate of service), had served the notice of trial de novo on Morello's counsel; (3) because the notice of trial de novo was served on Morello's counsel at 4:20 PM May 11, 2010, the courier could not have filed the notice at the superior court clerk's office before it closed at 4:30 PM; (4) Vonda filed "[n]o proof of service, showing actual receipt by plaintiff"[5]; and (5) thus, Vonda provided only proof of "intended" service, which had not yet been accomplished when she filed the certificate of service with the court. CP at 33 (emphasis omitted).

¶ 4 Vonda responded that (1) her certificate of service proved actual hand delivery on Morello's counsel on May 11, not merely an intent to deliver later; and (2) Morello's affidavit in support of her motion to strike Vonda's trial de novo request demonstrated that Morello's counsel did receive a copy of Vonda's request on May 11, as certified in Vonda's proof of service.[6]

¶ 5 The trial court denied Morello's motion to strike Vonda's request for trial de novo, concluding that, although Vonda had not "strictly compl[ied]" with former MAR 7.1(a), she had "substantially compl[ied]" with former MAR 7.1(a). CP at 63 (Conclusions of Law 1, 2). The trial court's written findings of facts included the following findings:

4. Attached to [Vonda's] Request for Trial De Novo was a certificate of service, dated May 11, 2010 and signed by [Vonda's counsel], stating she had served [Morello] by personal delivery to the office of [Morello's counsel];
5. [Vonda's counsel] did not personally deliver [Vonda's] Request for Trial De Novo to the office of counsel for plaintiff. [Vonda's] Request for Trial De Novo was delivered by courier to the office of [Morello's counsel] on May 11, 2010 at 4:20 p.m.; and
6. No proof of service has been filed, within the time frame prescribed under [former] MAR 7.1(a), showing actual receipt *696 of [Vonda's] Motion for Trial De Novo by [Morello] or by her counsel.

CP at 63 (emphasis added).

¶ 6 Morello filed a motion for discretionary review, which we granted.

ANALYSIS

¶ 7 Morello argues that the trial court erred in denying her motion to strike Vonda's request for trial de novo because former MAR 7.1(a) required strict compliance and Vonda established only the method of intended service, rather than completed actual service, which former MAR 7.1(a) required. Vonda responds that, even if the trial court erred in ruling that her substantial compliance with former MAR 7.1(a) was sufficient, we should affirm the trial court's acceptance of her trial de novo request because (1) the trial court erred in finding that Vonda's certificate of service, filed with her request for trial de novo, merely substantially complied with, but did not actually meet, former MAR 7.1(a) requirements[7]; when (2) in fact, Vonda's proof of service did actually meet former MAR 7.1(a)'s strict compliance requirements. We agree with Vonda that the record shows she strictly complied with former MAR 7.1(a)'s requirements by having filed and served all necessary documents by the end of the day on May 11.

I. STANDARD OF REVIEW

¶ 8 We review a trial court's findings of fact and conclusions of law to determine whether substantial evidence supports the findings and, if so, whether the findings support the conclusions. Scott v. Trans-Sys., Inc., 148 Wash.2d 701, 707-08, 64 P.3d 1 (2003). Substantial evidence is a quantum of evidence sufficient to persuade a rational fair-minded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). We review the trial court's conclusions of law de novo. 810 Props. v. Jump, 141 Wash.App. 688, 696,

Morello v. VONDA, 277 P.3d 693 (Wash. Ct. App. 2012).

277 P.3d 693 (Morello v. VONDA) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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