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Cook v. Selland Construction Inc.

filed: March 28, 1996.

PATRICK A. COOK AND KATHLEEN R. COOK, HUSBAND AND WIFE, RESPONDENTS,
v.
SELLAND CONSTRUCTION, INC., A WASHINGTON CORPORATION, APPELLANT.



Appeal from SUPERIOR COURT CHELAN COUNTY. Superior Court No: 92-2-00568-3. Date filed in Superior Court: 6/30/94. Superior Court Judge signing: CAROL WARDELL.

Dennis J. Sweeney, Ray E. Munson & John A. Schultheis, concur

Author: Sweeney

SWEENEY, C.J.--Any party to an arbitration is entitled to appeal by filing a written request for trial de novo in superior court within 20 days of filing the arbitration award. MAR 7.1. This appeal by Selland Construction, Inc., (Selland) follows an arbitration between Selland and Patrick A. and Kathleen R. Cook (the Cooks). But Selland appeals from the trial court's denial of Selland's pretrial motion for summary judgment. Selland did not request a trial de novo in superior court. The question presented is whether Selland may appeal the trial court's interlocutory order denying its motion for summary judgment and avoid the requirements of MAR 7.1, which requires a written request for a trial de novo. We conclude that it may not and dismiss the appeal.

FACTS

Selland contracted with Chelan County to improve a section of Sleepy Hollow Road, a county roadway. Selland was obligated to dispose of fill material left over as a result of this road widening project. Toward that end, it purchased a nearby lot from Bill Fisher. Selland also received permission from Mr. Fisher to maneuver its road construction equipment over another lot. A well which provided the Cooks with their potable water was located on the second lot. The Cooks contended, and an arbitrator found, that Selland's construction activities resulted in the well becoming muddy and eventually drying up entirely. Attempts to rehabilitate the well were ineffective.

On July 14, 1992, the Cooks sued Selland and Chelan County for trespass, inverse condemnation and private

nuisance. On April 26, 1994, the Cooks dismissed Chelan County and amended their complaint against Selland to claim negligence and nuisance. Selland moved for summary judgment. The Cooks responded with declarations from two experts, and excerpts and exhibits from depositions. Selland moved to strike the declarations of the Cooks' experts. The court denied the motion to strike. On June 30, 1994, the court dismissed the Cooks' nuisance claim, but refused to dismiss the negligence claim.

The case then moved to mandatory arbitration on August 9, 1994, pursuant to Chelan/Douglas County Local Rules for Mandatory Arbitration (LMAR) 2.1(a). Following a hearing, the arbitrator awarded the Cooks $16,785. On August 23, they filed the arbitration award in superior court. On September 22, Selland filed its first notice of discretionary review with this court seeking review of the trial court's denial of its motion for summary judgment and denial of its motion to strike. On October 3, Selland filed an amended notice of discretionary review of the denial of its motion for summary judgment and of the arbitration award. Based on the amended notice of discretionary review, the clerk of this court treated the appeal as a matter of right. RAP 5.1(c) (incorrectly designated notice for discretionary review which is appealable to be given the same effect as a notice of appeal).

Discussion

Chelan County has adopted a mandatory arbitration procedure pursuant to RCW 7.06. Chelan/Douglas County LMAR 2.1(a). The express purpose of that procedure is to provide a simplified and economical means for prompt and equitable resolution of disputes of claims less than $35,000. Chelan/Douglas County LMAR 1.1(a).

These rules provide an arbitrator with considerable discretion and the arbitrator is encouraged "not [to] hesitate to exercise that discretion." Chelan/Douglas County LMAR ...


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