Mark Hendrix, Respondent V. David W. Devin, Et Ux, Appellant - includes an Order
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II MARK A. HENDRIX, No. 41444-9-II Respondent, v. DAVID W. DEVIN, JANE DOE DEVIN, dba DWD & ASSOCIATE PROPERTY MANAGEMENT, ORDER Granting MOTION TO RECONSIDER AND AMENDING OPINION Appellants. Mark Hendrix filed a motion to reconsider and to amend our unpublished opinion filed September 22, 2011. We grant Hendrix s motion as follows: (1) At the end of the fourth line of the first paragraph on page 1, after the sentence, We affirm, we add the following sentence: We also award costs and attorney fees on appeal to Hendrix. (2) At the end of the last full paragraph on page 3, just before the sentence that begins, Accordingly, we affirm . . ., we insert the following new paragraph. In his Brief of Respondent, Hendrix requests reasonable attorney fees and costs under MAR 7.3 because Devin failed to improve his position on appeal of the arbitration award. We agree. MAR 7.3 provides in part: The court shall assess costs and reasonable attorney fees against a party who 41444-9-II appeals the award and fails to improve the party s position on the trial de novo. (emphasis added). Because Devin failed to improve his position after challenging the arbitration award, MAR 7.3 mandates assessment of reasonable costs and attorneys fees against him. Therefore, we order Devin to pay Hendrix reasonable costs and attorney fees in an amount to be determined by our court commissioner. IT IS SO ORDERED. DATED this ____________ day of _______________________________, 2011. Hunt, J. We concur: Penoyar, CJ. Van Deren, J. 2 41444-9-II IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II MARK A. HENDRIX, No. 41444-9-II Respondent, v. DAVID W. DEVIN, JANE DOE DEVIN, dba DWD & ASSOCIATE PROPERTY MANAGEMENT, UNPUBLISHED OPINION Appellants. Hunt, J. David Devin appeals from the superior court s order striking his request for a trial de novo following a mandatory arbitration award against him in favor of Mark Hendrix. He argues that the trial court erred in ruling that his sufficient proof of service of his Note for Trial Setting did not meet MAR 7.1(a) requirements. We affirm. FACTS On May 12, 2010, an arbitrator entered a mandatory arbitration award in favor of Mark Hendrix against David Devin. On May 25, Devin, acting pro se, filed a Request for Trial De Novo and a Note for Trial Setting. Because Devin was out of the country, his former counsel emailed those documents to Hendrix s lawyers on May 24. Hendrix moved to strike Devin s request for a trial de novo, arguing that Devin had failed 3 41444-9-II to comply with MAR 7.1(a) because he had not filed proof that a copy [of the request] has been served upon all other parties appearing in the case. Clerk s Papers (CP) at 7 (emphasis omitted) (quoting MAR 7.1(a)). Devin responded that he had complied with MAR 7.1(a) because the Note for Trial Setting listed Hendrix s attorneys in a part of the form that stated, List the name, address and phone number of all attorneys or parties who were provided notice. CP at 4. The trial court granted Hendrix s motion, struck Devin s request for trial de novo and entered judgment on the arbitration award. Devin appeals.1 ANALYSIS Devin argues that his Note for Trial Setting, which he filed with his Request for Trial De Novo and which states that Hendrix s attorneys had been provided notice, was sufficient proof of service under MAR 7.1(a). CP at 5. Terry v. City of Tacoma, 109 Wn. App. 448, 458, 36 P.3d 553 (2001), review denied, 146 Wn.2d 1012 (2002) (received stamp from attorney s office constitutes some evidence of the manner of service and satisfies MAR 7.1(a)). This argument fails. We review de novo the trial court s decision to strike a request for a trial de novo following a mandatory arbitration award. Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997). Contrary to Devin s argument, the proof of service required by MAR 7.1(a) must contain an indication of time, place, and manner of service. Terry, 109 Wn. App. at 454-55 (citing Sunderland v. Allstate Indem. Co., 100 Wn. App. 324, 329, 995 P.2d 614, review denied, 1 A commissioner of this court initially considered Devin s appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges. 4 41444-9-II 141 Wn.2d 1031 (2000) (citing Carpenter v. Elway, 97 Wn. App. 977, 989, 988 P.2d 1009 (1999), review denied, 141 Wn.2d 1005 (2000))). Devin s Note for Trial Setting contains no indication of the time, place or manner of service of his Request for Trial De Novo. Thus, it does not satisfy MAR 7.1(a) s requirement for proof that he had served a copy of his Request for Trial De Novo on Hendrix. Accordingly, we affirm the trial court s striking of Devin s Request for Trial De Novo. 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 in accordance with RCW 2.06.040, it is so ordered. Hunt, J. We concur: Van Deren, J. Penoyar, C.J. 5
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