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Colarusso v. Petersen

May 6, 1991

ANGELINA COLARUSSO, AS GUARDIAN AD LITEM, RESPONDENT,
v.
GLEN E. PETERSEN, ET AL, APPELLANTS



Grosse, C.j. Scholfield and Webster JJ., concur.

Author: Grosse

Glen E. Petersen and Betty Petersen appeal from a judgment awarding attorney fees to Colarusso pursuant to the provisions of the Mandatory Arbitration Rules, MAR 7.3.

The thrust of the Petersens' argument on appeal is that under the specific facts and circumstances of this case the assessment of attorney fees is an unconstitutional infringement of their rights to a jury trial and due process. We believe the issue presented was answered in Christie-Lambert Van & Storage Co. v. McLeod, 39 Wash. App. 298, 693 P.2d 161 (1984), cited with approval in Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711, 780 P.2d 260 (1989), and affirm.

The Petersens' position is that Christie-Lambert and Sofie v. Fibreboard Corp., supra, are limited by their facts to determining only that MAR 7.3 is constitutional in the context of a "frivolous" request or "meritless" request for trial de novo following a mandatory arbitration under the rules. The thrust of their argument is that this case involves a bona fide dispute over damages and therefore the request for a trial de novo cannot be considered either "frivolous" or "meritless". Further, the Petersens argue they were entitled to a jury trial by right on that issue. They contend the assessment of attorney fees, simply because they were unsuccessful in convincing a jury that the damages were less than the amount awarded in the arbitration procedure, renders the award of such fees a penalty for exercising their right to demand a jury trial.

[1] The Christie-Lambert court determined that within the framework of the mandatory arbitration scheme, the assessment of attorney fees against an appellant who did

not improve his or her position in a trial de novo following an arbitration award does not unconstitutionally restrict the jury trial right. Christie-Lambert, 39 Wash. App. at 309. As stated in Sofie v. Fibreboard Corp., 112 Wash. 2d at 652-53:

As made clear by the Court of Appeals in Christie-Lambert Van & Storage Co. v. McLeod, supra, the availability of a jury trial de novo to redetermine the arbitrator's conclusions preserved the right protected by article 1, section 21. The court stated:

[a]ll that is required is that the right of appeal for the purpose of presenting the issue to a jury must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable.

39 Wash. App. at 306, quoting Smith Case, 381 Pa. 223, 231, 112 A.2d 625 (1955). The court found that the procedures created in the Washington statute, notably placing on the losing party costs and fees in a frivolous appeal, were not an unreasonable burden on the parties and left the ultimate right to a jury intact.

The Petersens attempt to distinguish Christie-Lambert by arguing that it and Sofie only considered frivolous appeals and not appeals which may have merit, even if the appellant fails to improve his position. The Petersens contend Christie-Lambert never addresses the question of the unconstitutionality of MAR 7.3 when applied to good faith, reasonable appeals from an arbitration. They claim this appeal is such an appeal. However, a look at the facts of the case, even as set out in the Petersens' brief, when compared to the facts of Christie-Lambert, does not help their case. In Christie-Lambert the appellant actually improved his overall position at trial by bringing and prevailing on an additional claim at trial. However, McLeod (the appellant) did not improve his position with respect to the previously arbitrated claim. Therefore, the court reversed the trial court's denial of attorney fees*fn1 and awarded attorney fees to Christie-Lambert.

Here, the Petersens went from an arbitration award against them in the amount of $29,500 to an adverse judgment at trial in the amount of $73,250, plus statutory costs of $470.34. These facts are even more egregious than Christie-Lambert and an argument that the Petersens' claim is somehow more "merited" is somewhat disingenuous. Furthermore, as pointed out in the Petersens' brief, the trial court in its oral opinion specifically found this appeal to be frivolous using a theory that the Petersens did not ...


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