* David Shepler v. Terry's Truck Center, Inc., et al

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DAVID SHEPLER,
Respondent,
v.
TERRY’S TRUCK CENTER, INC.,
a Washington corporation, and TERRY
REES, individually,
Appellants.
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No. 38469-1-III
OPINION PUBLISHED IN PART
SIDDOWAY, C.J. — In 2018, the Washington Legislature amended RCW 7.06.050
to provide that a party wishing to appeal a civil arbitration award and request a trial de
novo must sign the request. The Supreme Court, exercising its authority to adopt
procedures to implement civil arbitration under chapter 7.06 RCW, likewise amended
MAR 7.1 (also renaming it SCCAR 7.1) to provide that the request must be signed by the
party.
The appellants here, Terry’s Truck Center, Inc. and its owner and president, Terry
Rees (collectively, the “truck center”), filed and served a request for trial de novo after
the filing of an arbitration award in favor of David Shepler. It was signed by only their
attorney. Mr. Shepler waited until more than 20 days after the filing of the award and
FILED
DECEMBER 29, 2022
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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then moved to strike the request for trial de novo because it had not been signed by the
parties.
Mr. Rees promptly signed a second request for trial de novo, which was filed and
served. After initially declining to strike the first, timely filed request, the trial court
granted a renewed motion to strike following the filing of this court’s Division One
decision in Mangan v. Lamar, 18 Wn. App. 2d 93, 496 P.3d 1213 (2021), which held that
a trial court properly struck an otherwise timely request for trial de novo where it was
signed only by counsel.
We agree with Mangan and with Division Two’s decision in Butler v. Finneran,
22 Wn. App. 2d 763, 516 P.3d 395 (2022), that if the amendments to RCW 7.06.050 and
MAR 7.1 require a party to sign a request for trial de novo within 20 days of the filing of
the arbitration award, then actual compliance, not substantial compliance, is required. On
the question of whether the statutory and rule changes in fact require a party’s signature
to be provided within 20 days, we conclude that it is a necessary implication from other
language in the statute and rule.
For that reason, and because denial of the defendants’ prearbitration summary
judgment motion is not appealable, we affirm.
FACTS AND PROCEDURAL BACKGROUND
David Shepler sued his former employer, Terry’s Truck Center, and its owner and
president, Mr. Rees, for disability discrimination and wrongful discharge in violation of
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public policy. A year after the suit was commenced, the truck center moved for summary
judgment dismissal of the complaint. The trial court denied the motion.
The case proceeded to civil arbitration. The hearing was conducted on
September 10, 2020, the arbitrator signed an arbitration award in Mr. Shepler’s favor on
September 17, 2020, and the award was filed on September 21, 2020.
Two days later, the truck center filed and served a request for trial de novo. It was
signed by only its attorney. Its appended certificate of service indicates it was served on
opposing counsel by electronic mail.
Over a month later, Mr. Shepler moved to strike the request, arguing it did not
comply with RCW 7.06.050(1) because it did not contain the signatures of Mr. Rees and
an authorized representative of the corporation. As 20 days had passed since the
arbitration award was filed, Mr. Shepler argued that the truck center had missed the
statutory deadline for requesting trial de novo. On November 11, 2020, Mr. Rees
sought to cure the defect by signing a second request individually and as the
corporation’s president. This second request was filed and served on opposing counsel
on November 12, 2020. Counsel also filed a declaration from Mr. Rees affirming that the
initial request for a trial de novo had been authorized by him. Counsel filed his own
declaration explaining that he had relied on pre-2019 MARs that continued to appear on
the Washington Courts and Spokane County Superior Court websites, and court forms on
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those websites that included only signature lines for counsel, not the party. See Clerk’s
Papers at 399-400, 404-12.
The trial court denied the motion to strike. Mr. Shepler petitioned this court for
discretionary review, which our commissioner denied.
Eight months later, Division One published its decision in Mangan, in which it
affirmed an order striking a request for trial de novo because the request was signed only
by the party’s lawyer and not the party. 18 Wn. App. 2d at 94-95. Division One held this
did not comply with RCW 7.06.050(1) because “[n]oncompliance is not substantial
compliance.” Id. at 97.
Mr. Shepler renewed his motion to strike the truck center’s request for trial de
novo based on Mangan. The trial court, recognizing it was bound by Division One’s
decision, granted the motion. The truck center timely appealed the order granting the
motion to strike. Its notice of appeal also sought to appeal the over-one-year-old denial
of its prearbitration motion for summary judgment.
ANALYSIS
Before September 1, 2018, for counties like Spokane County with a population of
more than 100,000, mandatory arbitration was required for all civil actions brought in
superior court where the sole relief requested did not exceed $15,000—or, if approved by
two-thirds of the superior court judges, where the sole relief requested did not exceed
$50,000.
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Beginning with the regular session of the legislature in 2017, it was proposed in
House Bill 1128 to raise the arbitration limit that could be approved by a two-thirds vote
of the judges to $100,000.1 The bill, which also made other changes to chapter 7.06
RCW, passed the legislature as Engrossed House Bill (EHB) 1128 in the regular 2018
session. LAWS OF 2018, ch. 36, §§ 1-9. In public testimony, defense lawyers, plaintiffs’
lawyers, and insurers explained that 70 percent or more of the cases subject to mandatory
arbitration were personal injury cases, the vast majority being auto cases, or were small
business disputes. See Public Hearing: HB 1128, et al., House Judiciary Committee,
Washington State Legislature, (Jan. 18, 2017) at 16 min., 28 sec. to 16 min., 40 sec; 27
min., 10 sec. to 27 min., 25 sec., audio recording by TVW, Washington State’s Public
Affairs Network, http://www.tv.org.2 The principal concern expressed by the public
testimony was the increase in the jurisdictional limit. See Public Hearing, supra, at 15
min., 45 sec. to 58 min., 50 sec. Other changes were summarized in bill reports as
making changes concerning the time periods for setting hearing dates, permitted
discovery, arbitrator qualifications, and filing fees, and removing references to the word
“mandatory,” replacing “mandatory” with “civil” in some instances. H.B. REP. ON
ENGROSSED H.B. 1128.
1 See https://app.leg.wa.gov/billsummary?BillNumber=1128&Year=2017
&Initiative=false.
2 Available at https://tvw.org/video/house-judiciary-committee-2017011174/
?eventID=2017011174.
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The change at issue in this case received a one sentence mention in the bill reports:
“A written notice of appeal of a civil arbitration must be signed by the aggrieved party.”
H.B. REP. ON H.B. 1128, at 4; H.B. REP. ON ENGROSSED H.B. 1128, at 4; FINAL B. REP.
ON ENGROSSED H.B. 1128, at 3. No legislative history has been brought to our attention
that sheds light on the reason for this change, nor have we discovered any. It did change
the result under then-existing law as decided in Russell v. Maas, 166 Wn. App. 885, 887,
272 P.3d 273 (2012), and Engstrom v. Goodman, 166 Wn. App. 905, 908, 271 P.3d 959
(2012). In both cases, an insured defendant apparently had qualms about their appointed
lawyer’s request for trial de novo following an arbitration award in favor of the plaintiff.3
The plaintiffs challenged the requests for trial de novo, arguing that under former MAR
7.1(a) (2001), the request for a trial de novo must be filed by an “aggrieved party,” not
the party’s lawyer.4
This court observed in Russell:
The use of the term “aggrieved party” in MAR 7.1(a) is analogous
to the use of the same term in RAP 3.1: “Only an aggrieved party may seek
3 In Russell, the plaintiff was the defending homeowner’s housemate, who fell off
a ladder while painting the defendant’s house. 166 Wn. App. at 887. In Engstrom, the
plaintiff was injured in a car accident and the defending at-fault driver personally sent an
e-mail to plaintiff’s counsel stating she did not agree to a new trial and did not wish to be
represented by her lawyer. 166 Wn. App. at 908.
4 The language on which they relied stated, “Within 20 days after the arbitration
award is filed with the clerk, any aggrieved party not having waived the right to appeal
may serve and file with the clerk a written request for a trial de novo . . . .” Former MAR
7.1(a) (2001) (emphasis added).
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review by the appellate court.” This court regularly accepts appeals signed
only by a party’s attorney. We see no reason why the practice should be
different with respect to the filing of a request for trial de novo, which is
also a type of appeal.
Id. at 891. The court characterized the only proper question presented by Russell as a
legal one: “When an aggrieved party’s attorney timely serves and files a request for trial
de novo, is MAR 7.1(a) satisfied?” to which it said “[t]he answer . . . is yes.” Id.
In the appeals in both Engstrom and Russell, the court observed:
Once a party has designated an attorney to represent the party in
regard to a particular matter, the court and the other parties to an action are
entitled to rely upon that authority until the client’s decision to terminate it
has been brought to their attention. Haller v. Wallis, 89 Wn.2d 539, 547,
573 P.2d 1302 (1978). Absent fraud, the actions of an attorney authorized
to appear for a client are generally binding on the client. Haller, 89 Wn.2d
at 545-47; Rivers v. Wash. State Conference of Mason Contractors, 145
Wn.2d 674, 679, 41 P.3d 1175 (2002).
Engstrom, 166 Wn. App. at 916; and see Russell, 166 Wn. App. at 891.
EHB 1128 effected the new requirement that the party themself request a trial de
novo by adding the underscored language to RCW 7.06.050(1):
. . . Within twenty days after such filing, 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.
LAWS OF 2018, ch. 36, § 6.
RCW 7.06.030 provides that “[t]he supreme court shall by rule adopt procedures
to implement mandatory arbitration of civil actions under this chapter,” and 15 months
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after the effective date of EHB 1128, MAR 7.1 was amended and retitled SCCAR 7.1,
effective December 3, 2019. 194 Wn.2d at 1112-13. What is now SCCAR 7.1(b) was
amended as follows:
(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:
SUPERIOR COURT OF WASHINGTON
FOR (___________) COUNTY
__________________,
Plaintiff,
Plaintiff,
v.
___________________,
Defendant.
Defendant.
)
)
)
)
)
)
)
)
)
No. ___________
REQUEST FOR
TRIAL DE NOVO
TO: The clerk of court and all parties:
Please take notice that [name of the aggrieved party] requests a trial de
novo from the award filed [date] .
Dated: ____________ _____________________________
[Signature Name of attorney for
aggrieved party]
[Printed name]:
[Title, if applicable]
_____________________________
[Name of attorney for
aggrieved party]
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It is these statutory and rule changes, as construed in Mangan, that caused the trial court
to strike the truck center’s request for trial de novo.
The truck center makes two arguments why the trial court erred in granting the
motion to strike its request for trial de novo. The first is that it substantially complied
with the statute and the rule. The second is that it actually complied, or at least cured any
defect when Mr. Rees signed the second request.
Division One rejected the substantial compliance argument in Mangan. Division
Two also affirmed the striking of a timely request for trial de novo that was not signed by
the party, in Butler.
We nonetheless consider the truck center’s arguments. One division of the Court
of Appeals is not bound by the decision of another division. In re Pers. Restraint of
Arnold, 190 Wn.2d 136, 154, 410 P.3d 1133 (2018).
I. SUBSTANTIAL COMPLIANCE
“‘Substantial compliance has been defined as actual compliance in respect to the
substance essential to every reasonable objective of [a] statute.’” City of Seattle v. Pub.
Emp. Rel. Comm’n, 116 Wn.2d 923, 928, 809 P.2d 1377 (1991) (alteration in original)
(quoting In re Santore, 28 Wn. App. 319, 327, 623 P.2d 702 (1981)). It has been found
where there has been compliance with the statute albeit with procedural imperfections.
Cont’l Sports Corp. v. Dep’t of Lab. & Indus., 128 Wn.2d 594, 602, 910 P.2d 1284
(1996) (citing Pub. Emp. Rel. Comm’n, 116 Wn.2d at 928).
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“‘[W]hether strict compliance is required, except in exceptional circumstances,
depends on the nature of the words of command or direction in light of policy
considerations.’” Nevers v. Fireside, Inc., 133 Wn.2d 804, 812-13, 947 P.2d 721 (1997)
(quoting Pybas v. Paolino, 73 Wn. App. 393, 400 n.3, 869 P.2d 427 (1994) (citing State
v. Ashbaugh, 90 Wn.2d 432, 583 P.2d 1206 (1978))). Nevers is particularly instructive,
because it, too, dealt with a mandatory arbitration rule.
At the time of the arbitration award in Nevers, former MAR 7.1(a) (1989)
provided that within 20 days after the arbitration award is filed with the clerk, an
aggrieved party could serve and file a written request for trial de novo “along with proof
that a copy has been served upon all other parties appearing in the case.” Id. at 810
(emphasis omitted).5 The Nevers court concluded that strict compliance was required not
only from this language in subsection (a), which it viewed as unambiguous, but also
because a contrary result, in the court’s view, would conflict with other language in the
mandatory arbitration rules. It would extend the time within which to request the trial de
novo, contrary to former MAR 7.1(a)’s language that “[t]he 20-day period within which
to request a trial de novo may not be extended.” Id. at 812. It would conflict with former
MAR 6.3, which provided that the party who prevailed at arbitration could present a final
5 The requirement that the proof of service be served and filed within 20 days was
later removed at the request of the Washington State Bar Association, which described it
as a “trap for the unwary.” In re Adoption of Amendments to New CrR 4.11 et al., Order
No. 25700-A-974, at 16 (Wash. Dec. 2, 2010) (MAR 7.1 GR 9 cover sheet).
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judgment if no party sought a trial de novo within the 20 days. The court also likened the
result to Public Employment Relations Commission, in which it had stated that service
after a time limit “cannot be considered to have been actual service within the time limit.”
Id. at 815 (quoting Pub. Emp. Rel. Comm’n, 116 Wn.2d at 929). Finally, it observed that
to hold otherwise would be to subvert the legislature’s intent “by contributing, inevitably,
to increased delays in arbitration proceedings.” Id.; and see accord Wiley v. Rehak, 143
Wn.2d 339, 344, 20 P.3d 404 (2001) (observing that strict compliance “better
effectuates” the legislature’s intent to alleviate court congestion and reduce delay).
The truck center cites this court’s 2011 decision in Splattstoesser v. Scott, 159 Wn.
App. 332, 338-39, 246 P.3d 230, as holding that substantial compliance with MAR 7.1
can suffice notwithstanding Nevers. But Splattstoesser relied on an intervening change to
the rule’s words of command that make substantial compliance sufficient in limited
cases. Effective September 1, 2001, MAR 7.1 was amended to provide that a request for
a trial de novo “shall be in substantially the form set forth” in the rule, a change from its
earlier language that the request “‘shall be in the following form.’” Id. at 335 (some
emphasis omitted) (citing 143 Wn.2d at 1134-35). Splattstoesser quoted the GR 9(d)
coversheet for the proposed 2001 rule change, which, like the earlier-discussed 2011
change, was requested by the Washington State Bar Association (WSBA). The WSBA
explained that “‘part of the impetus for the suggested rule change’” was Nevers, and
“‘[t]he committee[’s] . . . concern[ ] that if a party deviated even slightly from the form
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set out in the rule, even because of a typographical error, an argument could be made that
there had been no valid request for a trial de novo.’” Id. at 336 (quoting In re Adoption
of Amendments to CR 28(d), CR 35, CR 49, MAR 1.2, MAR 3.2, MAR 4.1 AND
MAR 7.1, Order No. 25700-A-695, at 19 (Wash. Dec. 7, 2000) (MAR 7.1 GR 9(d) cover
sheet). Here, the new requirement appears in the body of the statute and rule, not merely
in the form set forth in the rule.
It is now well settled that when statutory prerequisites impose timelines, parties
must comply. Freedom Found. v. Teamsters Loc. 117 Segregated Fund, 197 Wn.2d 116,
138, 480 P.3d 1119 (2021) (citing Forseth v. City of Tacoma, 27 Wn.2d 284, 297, 178
P.2d 357 (1947), overruled on other grounds by Shafer v. State, 83 Wn.2d 618, 521 P.2d
736 (1974) (plurality opinion)). “[T]here can be no ‘substantial compliance’ with the
provision concerning the time within which a claim must be filed, except by filing it
within that time.” Forseth, 27 Wn.2d at 297. Or, as expressed by Division One in
Mangan, “[n]oncompliance” with a time limitation “is not substantial compliance.”
18 Wn. App. 2d at 97.
Assuming that the 2018 statutory change and 2019 rule change impose a time limit
on a party’s signature—which the appellants do not concede, as discussed next—
substantial compliance does not suffice.
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II. ACTUAL COMPLIANCE OR CURE
The question that remains is whether it is a statutory prerequisite not only that the
request for trial de novo be signed by the party, but that it be signed by the party within
20 days of the filing of the arbitrator’s award.
Our fundamental objective in construing a statute is to ascertain and carry out the
legislature’s intent, and if a statute’s meaning is plain on its face, we give effect to that
plain meaning as an expression of legislative intent. Dep’t of Ecology v. Campbell &
Gwinn, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Statutory provisions must be read in their
entirety and construed together, not piecemeal. Id. at 11. Arbitration rules, like other
court rules, are interpreted as though they were drafted by the legislature and are
construed consistent with their purpose. Wiley, 143 Wn.2d at 343.
The sentence of RCW 7.06.050(1) that imposes the 20-day filing requirement
states only, “Within twenty days after such filing, any aggrieved party may file with the
clerk a written notice of appeal and request for trial de novo in the superior court on all
issues of law and fact.” “Aggrieved party” is not a term used to mean the party themself,
as distinguished from their lawyer. Rather, an “aggrieved party” is one who can appeal a
decision because it adversely affects that party’s property or pecuniary rights, or a
personal right, or imposes on a party a burden of obligation—conversely, a party is not
aggrieved by a favorable decision and cannot appeal from such a decision. Randy
Reynolds & Assoc., Inc. v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019). Nothing
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in EHB 1128 or its history suggests an intent to narrow or change the meaning of
“aggrieved party,” which, as this court observed in Russell, is used in RAP 3.1, under
which we regularly accept attorney-signed appeals. 166 Wn. App. at 891; and see
4A ELIZABETH A. TURNER, WASHINGTON PRACTICE: RULES PRACTICE MAR 7.1
author’s cmt. 1, at 56 (8th ed. 2020) (observing that MAR 7.1 does not define “aggrieved
party,” but “the term is well defined in the case law interpreting the Rules of Appellate
Procedure”). Nothing in the 2018 legislation reflects an intent to narrow an attorney’s
authority to accomplish procedural acts on behalf of their client in the regular course of
arbitration. Chapter 7.06 RCW continues to identify procedural rights of “a party” that
are commonly exercised by the party’s attorney. E.g., RCW 7.06.047 (providing that “a
party may conduct discovery”); RCW 7.06.050(1)(a) (“a party may serve . . . a written
offer of compromise”); RCW 7.06.050(2) (judgment “may be presented . . . by any
party”).
Other language in RCW 7.06.050 and SCCAR 7.1 implies, however, that a
signature provided after 20 days cannot preserve the right to appeal. The signature
requirement in RCW 7.06.050(1), which follows a 20-day filing requirement for any
notice of appeal, requires “the notice” to be signed by the party, not “a notice.”
(Emphasis added.) “Use of a definite rather than indefinite article is a recognized
indication of statutory meaning.” Dep’t of Ecology v. City of Spokane Valley, 167 Wn.
App. 952, 965, 275 P.3d 367 (2012); Tewell, Thorpe & Findlay, Inc. v. Cont’l Cas. Co.,
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64 Wn. App. 571, 576, 825 P.2d 724 (1992) (meaning of “a” claim is broader than “the”
claim). “The rules of grammar . . . provide that the definite article, ‘the’, is used ‘before
nouns of which there is only one or which are considered as one.’” State v. Neher, 52
Wn. App. 298, 300, 759 P.2d 475 (1988) (quoting A.J. THOMSON & A.V. MARTINET,
A PRACTICAL ENGLISH GRAMMAR 3 (3d ed. 1980)), aff’d, 112 Wn.2d 347, 771 P.2d 330
(1989). And similar to Nevers, construing the statute to permit the party to sign the
request after 20 days would conflict with SCCAR 7.1(a), which states, “The 20-day
period within which to request a trial de novo may not be extended.” Similar to Nevers,
it would conflict with RCW 7.06.050(2), which provides that “[i]f no appeal has been
filed at the expiration of twenty days following filing of the arbitrator’s decision and
award, a judgment shall be entered . . . .” (Emphasis added.)
The truck center directs our attention to Griffith v. City of Bellevue, 130 Wn.2d
189, 922 P.2d 83 (1996), and Biomed Comm, Inc. v. Dep’t of Health, 146 Wn. App. 929,
193 P.3d 1093 (2008), in which our Supreme Court and this court held that a party must
be given a short period of time to cure a signature oversight. In Griffith, a petition for a
statutory writ of certiorari was timely filed with the court but the signature line for the
petitioner’s verification was left blank. The Supreme Court held that it was error for the
trial court to dismiss the petition for lack of jurisdiction because Griffith offered to sign
the verification promptly after the omission was called to his attention “in accordance
with CR 11.” 130 Wn.2d at 190. CR 11(a)(4) provides that “[i]f a pleading, motion, or
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legal memorandum is not signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant.”
In Biomed, this court held that the superior court did not lose jurisdiction of
Biomed’s petition for judicial review of an agency adjudication where its timely-filed
petition was signed by a corporate officer rather than an attorney. As in Griffith, the
court held that the corporation should have been permitted to cure the defect, citing CR
11 as authorizing a motion to strike the pleading but as also permitting the corporation a
reasonable amount of time to cure. Biomed, 146 Wn. App. at 938.
Unlike the proceedings in Griffith and Biomed, filing a request for trial de novo
following arbitration is not a step needed to invoke the superior court’s jurisdiction. For
an action subject to civil arbitration, the superior court’s jurisdiction “is invoked upon the
filing of the underlying lawsuit and it is not lost merely because the dispute is transferred
to mandatory arbitration.” Nevers, 133 Wn.2d at 812 n.4.
And unlike the proceedings in Griffith and Biomed, CR 11 does not apply here.
The truck center argues that while CR 11 deals largely with attorney signatures as
certificates, it also applies to party signatures on verified pleadings. See CR 11(a)
(extending to pleadings that “need not, but may be, verified”). We need not decide
whether a party’s required signature on a request for trial de novo could be treated as a
verification under CR 11, because the SCCARs provide that the civil rules of procedure
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do not apply once a case is assigned to an arbitrator. See SCCAR 1.3(b)(1).6 In Wiley,
the Supreme Court held that the SCCAR 1.3(b)(1)’s predecessor provision, former MAR
1.3(b)(1) (1989), foreclosed reliance on CR 4(h) or CR 60 as a means to cure a defect in
the request for trial de novo. 143 Wn.2d at 346-47. As the court observed, CR 81
likewise gives preference to the civil arbitration rules. Id. at 347.
SCCAR 1.3(b)(1) forecloses reliance on CR 11 here. It also forecloses reliance on
CR 1, which the truck center suggests in passing might be applied to achieve a “just . . .
determination.” Appellant’s Opening Br. at 32-33.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
III. A PARTY MAY NOT APPEAL FROM DENIAL OF SUMMARY JUDGMENT
The truck center’s appeal of denial of its summary judgment motion fails to
address the well-settled principle that “[w]hen a trial court denies summary judgment due
to factual disputes . . . and a trial is subsequently held on the issue, the losing party must
6 SCCAR 1.3(b)(1) provides,
Until a case is assigned to the arbitrator under rule 2.3, the rules of civil
procedure apply. After a case is assigned to the arbitrator, these arbitration
rules apply except where an arbitration rule states that a civil rule applies.
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No. 38469-1-III
Shepler v. Terry’s Truck Ctr., Inc., et al.
18
appeal from the sufficiency of the evidence presented at trial, not from the denial of
summary judgment.” Adcox v. Child.’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15,
35 n.9, 864 P.2d 921 (1993) (citing Johnson v. Rothstein, 52 Wn. App. 303, 759 P.2d 471
(1988)). As the truck center pointed out at oral argument, Mr. Shepler’s response to its
assignment of error to denial of summary judgment focused on issues other than this
appealability issue. Wash. Court of Appeals oral argument, Shepler v. Terry’s Truck
Ctr., Inc., No. 38469-1-III (June 7, 2022), Part II, at 46 sec. to 1 min., 55 sec. (on file
with court). But Mr. Shepler cited Adcox, and we provided an opportunity to respond to
this issue at oral argument. See id.
The Adcox principle is supported by policy (we favor the decision that is based on
the best record) and by the purpose of summary judgment (the objective of avoiding
useless trials is no longer served once trial takes place). Johnson, 52 Wn. App. at 306-07.
And this court has held that the rule has special application when a dispute proceeds to
arbitration after a summary judgment motion is denied. To allow review of denial of
summary judgment after an arbitration would circumvent an important statutory
inducement to accept the arbitrator’s award: the potential for an award of attorney’s fees
if the appellant from the award does not improve its position in the trial de novo. Cook v.
Selland Const., Inc., 81 Wn. App. 98, 101, 912 P.2d 1088 (1996) (citing Christie-
Lambert Van & Storage Co. v. McLeod, 39 Wn. App. 298, 302-03, 693 P.2d 161 (1984)).
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No. 38469-1-III
Shepler v. Terry’s Truck Ctr., Inc., et al.
19
IV. ATTORNEY FEES
Mr. Shepler requests attorney fees and costs incurred in defending against the
appeal, relying on RCW 7.06.060(2) and RCW 49.60.030(2). RAP 18.1(a) allows a party
to recover attorney fees or expenses incurred on appeal, so long as applicable law permits
such recovery.
Under RCW 7.06.060, if an aggrieved party appeals an arbitration award and
fails to improve its position in a trial de novo, it shall be assessed fees and costs of the
adverse party. Fee recovery on this basis, including fees on appeal, is available where
the party fails to improve their position because they fail to comply with the procedural
requirements for obtaining a trial de novo. Wiley, 143 Wn.2d at 348. In addition,
RCW 49.60.030(2) provides that a successful plaintiff in a suit for a violation of
chapter 49.60 RCW is entitled to recover the costs of suit, including reasonable attorney
fees.
We award Mr. Shepler his reasonable attorney fees and costs on appeal subject to
his timely compliance with RAP 18.1(d).
Affirmed.
Siddoway, C.J.
WE CONCUR:
Lawrence-Berrey, J. Pennell, J.
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