LAWRENCE v. PAUL, 24930-8-II (Wash.App. 10-19-2001)

No. 24930-8-II.The Court of Appeals of Washington, Division Two.
Filed: October 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County, No. 96-2-10388-3, Hon. Terry D. Sebring, July 16, 1999, Judgment or order under review.

Counsel for Appellant(s), Thomas D. Dinwiddie, Dinwiddie Landry, 902 S 10th St, Tacoma, WA 98405.

Counsel for Respondent(s), William M. Pease, Attorney At Law, 1403 Seattle Tower, 1218 3rd Ave., Seattle, WA 98101-3021.

CARROLL C. BRIDGEWATER, J.

Thomas Lawrence appeals from a jury verdict following a trial de novo Daniel Paul requested after mandatory arbitration. Lawrence claims Paul failed to properly serve his request for trial de novo and the trial court erred in denying his CR 60 motion to vacate for failure of the arbitrator to file proof of service of the arbitration award. Because Paul perfected his request for a trial de novo and because Lawrence waived his claim as to the arbitrator’s failure to file proof of service, we affirm.

Facts
According to the Complaint, on August 23, 1994, Daniel Allen Paul filled his gas tank with gas that Thomas Lawrence had paid for. The two had an altercation during which Paul stomped on Lawrence’s hand, breaking it. Lawrence sued Paul for present and future pain and suffering, emotional distress, special, general, and consequential damages, and he requested costs and attorney fees.

The matter went to mandatory arbitration. The arbitrator filed the award on September 23, 1997. On October 8, 1997, Paul filed his request for a trial de novo. On April 14, 1998, Lawrence moved to dismiss for Paul’s failure to prosecute his appeal in that he had not complied with PCLMAR 7.1(a), a Pierce County Local rule that ‘[a] written request for a trial de novo shall be accompanied by a note of issue placing the matter on the assignment calendar.’ In addition to asking for terms and dismissal, Lawrence complained that he had not received proof of service of the demand for a trial de novo, citing Nevers v. Fireside, Inc., 133 Wn.2d 804, 947 P.2d 721 (1997). On May 29, 1998, the superior court denied the motion.[1]

On September 8, 1998, Lawrence again moved for an order dismissing the trial de novo for Paul’s failure to file proof of service and for entry of judgment on the arbitration award. On September 10, 1998, Paul filed a sworn declaration of service. On September 18, 1998, the court denied the motion.

The matter went to a jury trial on June 3 and 4, 1999. The court entered judgment on the verdict on July 16, 1999.[2] Lawrence filed his notice of appeal on August 3, 1999.

On March 20, 2000, Lawrence filed a CR 60 motion to vacate, claiming (1) the arbitrator never served the parties nor filed a proof of service, and (2) the request for a jury trial was premature. On March 31, 2000, Paul filed a supplemental proof of service of his request for a trial de novo. On that same day, the court denied the CR 60 motion.

Analysis
Lawrence makes two claims on appeal. First, he argues that the trial court erred in failing to dismiss Paul’s request for a trial de novo because of Paul’s failure to comply with the service requirements in MAR 7.1. Second, he argues that the trial court erred in denying his CR 60 motion to dismiss because of the arbitrator’s failure to file proof of service.

I. Request for trial de novo
MAR 7.1(a) provides that ‘[w]ithin 20 days after the arbitration award is filed with the clerk, any aggrieved party . . . may serve and file with the clerk a written request for a trial de novo in the superior court along with proof that a copy has been served upon all other parties appearing in the case.’ If no party has sought a trial de novo within those 20 days, the prevailing party shall present to the court a judgment on the arbitration award. Roberts v. Johnson, 137 Wn.2d 84, 88, 969 P.2d 446 (1999); MAR 6.3. Strict compliance with proof of service requirements is mandatory. Nevers, 133 Wn.2d 804; Roberts, 137 Wn.2d at 90. MAR 1.3(b)(2) incorporates the service requirements of CR 5. Nevers, 133 Wn.2d at 810 n. 3. CR 5(b)(1) sets out the proof of service requirements:

Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, filing with the clerk of the court an affidavit of attempt to serve. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

In Carpenter v Elway, 97 Wn. App. 977, 988 P.2d 1009 (1999), we held that MAR 7.1(a) requires simply that a party file `proof that a copy has been served . . . [and that] adequate proof of personal service under MAR 6.2 or 7.1(a) requires an indication of time, place, and manner’ of service. Carpenter, 97 Wn. App. at 989.

We expounded on this requirement in Sunderland v. Allstate Indemn. Co., 100 Wn. App. 324, 995 P.3d 614, review denied, 11 P.3d 827 (2000). Allstate filed its request for a trial de novo bearing a `RECEIVED’ stamp accompanied with a sworn certificate of service from a legal assistant declaring that she had forwarded a copy of the request for a trial de novo to opposing counsel via legal messenger. Sunderland complained that Allstate failed to include an attestation in its service and, therefore, it was inadequate. We disagreed, stating:

Allstate’s declaration of service, together with the Sunderlunds’ attorney’s date stamp, indicate the time, place, and manner of service. Carpenter, 97 Wn. App. at 989; see also CR 4(g)(7). Thus, it constitutes adequate proof that Allstate’s request for trial de novo was delivered to the Sunderlands’ attorney’s office in compliance with CR 5(b)(1). Moreover, despite the Sunderlands’ descriptions of potential perils of service by legal messenger, they acknowledge that here, they did receive the request for a trial de novo in a timely fashion via legal messenger delivery.

Sunderland, 100 Wn. App. at 329 (footnote omitted).

Here, Paul filed a copy of the legal messenger service document indicating that on October 8, 1997, at 8:00 a.m., the firm of Dinwiddy
Landry, received a copy of his request for trial de novo and jury demand.

The document shows the attorney who sent the document, his address, the name of the case, and the cause number. Additionally, in response to Lawrence’s motion to dismiss, Paul’s attorney, William Merchant Pease, filed a declaration of service, stating that he had sent the request for trial de novo to Lawrence’s counsel and that Lawrence’s counsel received the documents on October 8, 1997.

But we need not address whether the legal messenger document was adequate because Pease’s declaration of service satisfied CR 5 and MAR 7.1. And while this declaration was not filed within twenty days of the arbitrator filing the arbitration award, it is of no consequence because, as discussed below, the arbitrator never filed proof of service and, thus, Paul’s request was simply premature. See Pulich v. Dame, 99 Wn. App. 558, 563-64, 991 P.2d 712 (2000) (20-day period does not begin until arbitrator has filed both the award and proof of service). Paul properly perfected his request for a trial de novo. The trial court did not err in refusing to strike it.

II. Arbitrator’s Proof of Service
It is undisputed here that the arbitrator never filed proof of service of the award as MAR 6.2 requires. Lawrence contends that the trial court should have granted his CR 60 motion to dismiss because of this failing. Paul contends that Lawrence waived this claim by not raising it until after the court entered judgment on the jury verdict.

In Pulich v. Dame, 99 Wn. App. 558, under circumstances similar to those here, we found that Pulich waived his right to challenge the arbitrator’s failure to file proof of service by not challenging the trial court’s authority to hold trial until after the court had entered judgment on the jury verdict. 99 Wn. App. at 565. We also held that `Pulich invited the error by failing to timely take steps to correct the arbitrator’s filing error.’ 99 Wn. App. at 565. See also Haywood v. Aranda, 143 Wn.2d 231, 19 P.3d 406 (2001) (parties waive any objection to other parties’ failure to file proof of service if issue is not raised before the trial de novo).

Nonetheless, Lawrence argues that he had `no opportunity to correct the defect in that the sealing of the arbitration award made it impossible to determine that an affidavit of service of the award had not been filed.’ Appellant’s Brief at 7. Lawrence cites no authority for this proposition, Paul does not address it, and we question it. GR 15, which governs sealed records, defines sealing as `to protect from examination by the public or nonauthorized court personnel.’ Nothing in this rule precludes the parties to the litigation from accessing sealed records. And the order sealing the arbitration award does not also seal the proof of service. Furthermore, Lawrence did not make this argument below and, as such, the trial court did not have an opportunity to address it. This alone is grounds for this court not to consider it. RAP 2.5(a).

Even assuming an exception exists for when the party cannot determine if the arbitrator filed proof of service, Lawrence fails to adequately demonstrate such circumstances here. He has waived any objection to the arbitrator’s failure to file proof of service. We affirm.

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: SEINFELD, J., ARMSTRONG, C.J.