Manius v. Boyd

47 P.3d 145 (2002) 111 Wash.App. 764

Linda R. MANIUS and Lawrence Manius, wife and husband, Respondents,
v.
Lila J. BOYD and John Doe Boyd, wife and husband, and the marital community composed thereof, Appellants.

No. 27377-2-II.

Court of Appeals of Washington, Division 2.

May 17, 2002.

Marilee C. Erickson, Reed McClure, Novelle Frances Ballard, Mitchell, Lang & Smith, Seattle, for Appellants.

Guy William Beckett, Seattle, for Respondents.

HUNT, C.J.

Lila and John Doe Boyd appeal the trial court's entry of an arbitration award and order striking their request for a trial de novo based on defective proof of service by mail. Holding that the Boyds' proof of service by mail complied with MAR 7.1, we reverse and remand for a trial de novo.

FACTS

The Boyds' lawsuit against Linda and Lawrence Manius was transferred to mandatory arbitration. The arbitrator entered an award in the Maniuses' favor. The Boyds served and filed a timely request for trial de novo and a document entitled "Certificate of Service," signed by Sandra Barlow, the Boyds' attorney's secretary.

The Maniuses moved to strike the request for trial de novo. Ruling that the place of signing was missing from the "Certificate of Service," the trial court struck the request for trial de novo and entered judgment for the Maniuses based on the arbitration award. The Boyds appeal.

ANALYSIS

The Washington Supreme Court has held that MAR 7.1 mandates strict compliance for filing a request for trial de novo and that proof of service of the request must also be filed. Nevers v. Fireside, Inc., 133 Wash.2d 804, 815, 947 P.2d 721 (1997); Newton v. Legarsky, 97 Wash.App. 375, 984 P.2d 417 (1999). The Court has not, however, addressed the requirements for proof of service by mail under MAR 7.1(a). Terry v. City of Tacoma, 109 Wash.App. 448, 36 P.3d 553, 556 (2001).

I. PROOF OF SERVICE BY MAIL OF REQUEST FOR TRIAL DE NOVO

Thus, this case presents an issue of first impression: What constitutes sufficient proof of service by mail of a post-arbitration request for trial de novo?^[1] Interpreting the Mandatory Arbitration Rules (MAR) is a matter of law, which we review de novo. Terry, 109 Wash.App. at 453, 36 P.3d 553; Nevers, 133 Wash.2d at 809, 947 P.2d 721.

MAR 7.1(a) requires a party to file "proof that a copy has been served upon all other parties" along with a request for trial de novo. We held in Terry that because MAR 7.1(a) requires only "proof that a copy has been served," rather than "proof of service," MAR 7.1(a) thereby allows some format other than the standard "proof of service."^[2]Terry, 109 Wash.App. at 457, 36 P.3d 553.

The Boyds concede that MAR 7.1 requires that proof of service by mail of a request for trial de novo must comply with CR 5(b)(2)(B). We noted in Carpenter v. Elway, 97 Wash.App. 977, 987 n. 4, 988 P.2d 1009 (1999) review denied, 141 Wash.2d 1005, 10 P.3d 403 (2000),^[3] that "CR 5(b)(2)(B) requires proof of service by mail in the form of a signed certificate of mailing."

CR 5(b)(2)(B) enumerates three forms of proof of service: (1) written acknowledgement of service; (2) an affidavit of the person who mailed the papers; or (3) a certificate of an attorney. Here, we address the second form-an affidavit (a sworn "certificate")^[4] of the person who mailed the de novo trial request, Sandra Barlow. The trial court recognized that a declaration under penalty of perjury may be substituted for the CR 5(b)(2)(B) forms for proof of service if the requirements of RCW 9A.72.085 are met. We agree.

RCW 9A.72.085 sets forth the requirements for attestation as follows:

Whenever, under any law of this state or under any rule, order, or requirement made under the law of this state, any matter in an official proceeding is required or permitted to be supported, evidenced, established, or proved by a person's sworn written statement, declaration, verification, certificate, oath, or affidavit, the matter may with like force and effect be supported, evidenced, established, or proved in the official proceeding by an unsworn written statement, declaration, verification, or certificate, which:

(1) Recites that it is certified or declared by the person to be true under penalty of perjury;

(2) Is subscribed by the person;

(3) States the date and place of its execution; and

(4) States that it is so certified or declared under the laws of the state [sic] of Washington.

The certification or declaration may be in substantially the following form:

"I certify (or declare) under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct:"

II. BARLOW'S CERTIFICATE OF SERVICE

Barlow's "Certificate of Service," (Clerk's Papers at 69) reproduced below meets these RCW 9A.72.085 requirements:

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF MASON LINDA R. MANIUS and LAWRENCE MANIUS, wife and husband, NO. 99-2-00616-3 Plaintiffs, CERTIFICATE OF SERVICE vs. LILA J. BOYD and JOHN DOE BOYD, wife and husband, and the marital community composed thereof, Defendants. I, Sandra Barlow, under penalty of perjury of the laws of the State of Washington, hereby certify and declare as follows: 1. I am an employee of the law firm of Mitchell, Lang & Smith, 600 University Street, Seattle, WA 98101, counsel for certain defendants herein. 2. On November 20, 2000, I did serve a true and correct copy of REQUEST FOR TRIAL DE NOVO and CERTIFICATE OF SERVICE by U.S. First Class Mail - Postage Prepaid upon: Guy W. Beckett R. Alan Swanson Attorney at Law Arbitrator 811 First Avenue, Suite 208 1235 - 4th Avenue East, Suite 200 Seattle, WA 98104 Olympia, WA 98506 DATED this 20 day of November, 2000 SANDRA BARLOW MITCHELL, LANG & SMITH ONE UNION SQUARE 600 UNIVERSITY STREET. SUITE 2505 CERTIFICATE OF SERVICE SEATTLE. WASHINGTON 98101-3134 (206) 292-1212

Barlow certified under penalty of perjury that she was an employee of the Seattle law firm, Mitchell, Lang & Smith at its Seattle address, 600 University Street, Seattle, WA 98101. This address is both typed on the "Certificate of Service" and printed on the law firm's pleading paper on which the certificate was prepared. Barlow certified that on 20 November, 2000, she served a copy of the Request for Trial de Novo and a copy of the Certificate of Service by placing them in the U.S. mail, with prepaid first class postage, addressed to the Maniuses' attorney and to the arbitrator.

The trial court found that the place of the certificate's "signing," or execution, was lacking.^[5] Although the Certificate does not expressly state that Barlow signed the certificate and mailed the documents from her law firm's address, such originating address is reasonably implied. As Justice Cardozo eloquently stated in his dissent in Reed v. Allen, 286 U.S. 191, 209, 52 S. Ct. 532, 76 L. Ed. 1054 (1932): "A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity." Similarly, Washington court rules and case law reflect the same principles. Civil Rule 1 provides in part: "[These rules] shall be construed to secure the just, speedy, and inexpensive determination of every action." "[A] practical solution should be preferred to a technical one whose use might result in frustrating the purpose of the superior court rules." Kohl v. Zemiller, 12 Wash.App. 370, 372, 529 P.2d 861 (1974).

Here, requiring an additional statement that Barlow signed the original and mailed the copies from the law firm's address would serve no useful purpose, especially in the absence of an allegation that the Maniuses did not receive timely service or notice of the Boyds' request for trial de novo. Rather, the certificate's various components constitute "``some evidence' of the time, place, and manner of service." Terry, 109 Wash.App. at 457, 36 P.3d 553, citing Carpenter, 97 Wash.App. at 987, 988 P.2d 1009. As we have previously noted, the proof of service of the request for trial de novo is not as strict as the Nevers requirements for filing the request for trial de novo itself. Terry, 109 Wash.App. at 457, 36 P.3d 553.

Accordingly, we hold that Barlow's Certificate of Service constitutes adequate proof of service by mail of the request for trial de novo. We reverse the Maniuses' judgment and the order striking the Boyds' request for the trial de novo, and we remand for a trial de novo.

We concur: ARMSTRONG and QUINN-BRINTNALL, JJ.

NOTES

[1] The MAR 7.1(a) sufficiency-of-proof-of-service cases following Nevers involved personal service, not service by mail.

[2] In Sunderland v. Allstate Indem. Co., 100 Wash. App. 324, 328, 995 P.2d 614, review denied, 141 Wash.2d 1031, 11 P.3d 827 (2000), we noted that "[t]he Nevers policy of strict compliance focused on the need to provide timely proof of service of a request for trial de novo, rather than on what such proof of service should contain." (Emphasis added.)

The Maniuses argue that Sunderland is distinguishable from the case at bar because Sunderland applied specifically to personal service, whereas the current case involves service by mail. Brief of Respondent at 18-19. After the parties submitted their briefs, we reconfirmed the holding in Sunderland—that the record must contain adequate proof of personal service under MAR 6.2 or 7.1(a), including an indication of time, place, and manner of delivery as required by CR 4(g)(7). Terry, 109 Wash.App. at 457, 36 P.3d 553. Similarly, in Terry we noted:

Here, the drafters of the MAR chose not to use the phrase "proof of service;" therefore, they must have contemplated something different from "proof of service" as it is ordinarily understood. This is more than mere semantics, for "proof of service" is a term of art meaning an affidavit attested by the person who effected service. Black's defines the term as follows: "a document filed (as by a sheriff) in court as evidence that process has been successfully served on a party." BLACK'S LAW DICTIONARY 1232 (7th ed.1999). If the drafters had intended to require formal proof of service as that phrase is understood, they would have employed the phrase "proof of service" instead of "proof that a copy has been served." We hold that the service requirements of MAR 7.1(a) do not mandate an affidavit of service, but only "some evidence" of the time, place, and manner of service. See Carpenter [v. Elway], 97 Wash.App. [977,] 987, [988 P.2d 1009 (1999) review denied, 141 Wash.2d 1005, 10 P.3d 403 (2000)].

Terry, 109 Wash.App. at 457, 36 P.3d 553.

[3] Terry, 109 Wash.App. at 454, 36 P.3d 553, quoting Carpenter, 97 Wash.App. at 981, 988 P.2d 1009 (holding arbitrator's notation on bottom of arbitration award reading "[o]riginal to the Clerk for filing with copies to each party" insufficient proof of service because notation lacked time, place, and manner of service). "[T]he April 30 certification of service and legal messenger slip show that Thou sent a copy of the request and that Morrow actually received it at a certain place and time. Thus, the April 30 certification complied with CR 5(b)(1) and MAR 7.1(a)." Carpenter, 97 Wash.App. at 990 n. 6, 988 P.2d 1009.

[4] We also made a passing reference to the attestation requirement for MAR 7.1 service-by-mail in Sunderland, 100 Wash.App. at 328, 995 P.2d 614:

[T]he CR 5(b)(2)(B) attestation requirement for service by mail also applies to service by delivery and requires a sworn statement by the messenger that service did in fact occur; and that proof of service must be done by attestation in light of [the] Nevers policy of strict compliance.

[5] The trial court found that the place of signing "was not found on the document called certificate of service purportedly signed by Sandra Barlow on November 20th." Report of Proceedings at 9.