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Nevers v. Fireside Inc.

filed: July 1, 1996.

CORY B. NEVERS, APPELLANT,
v.
FIRESIDE, INC., A WASHINGTON STATE LICENSED CORPORATION, RESPONDENT.



Superior Court County: King. Superior Court Cause No: 92-2-28478-2. Date filed in Superior Court: 7-11-94. Superior Court Judge Signing: Anne Ellington.

Per Curiam. -- Cory Nevers and Steve Anderson have moved to modify a commissioner's ruling granting the court's motion on the merits to affirm and denying in part their motion to strike portions of respondent's brief. After independently reviewing the matter, we grant the motion to modify in part, accelerate review pursuant to RAP 18.12,*fn1 and reverse.

FACTS

Appellants timely filed their request for trial de novo but did not serve the request until the twentieth day. The trial court terminated review below finding, among other things, that (1) the request for trial de novo was timely filed; (2) service of the request was not accomplished and no proof of service was on file; and (3) no explanation existed for failure to serve within the 20-day time period. Relying on Schaefco v. Columbia River Gorge Comm'n, 121 Wash. 2d 366, 849 P.2d 1225 (1993), and Jankelson v. Lynn Constr., Inc., 72 Wash. App. 232, 864 P.2d 9 (1993), the trial court ruled that it could not extend the time limitation for service because compliance with the rule is "jurisdictional" The court's written ruling concludes:

[MAR 7.1] requires both service and filing to be accomplished by the twentieth day; compliance with the rules is 'jurisdictional' in the sense that the Court is without authority to extend the deadline. See Schaefco v. Columbia River Gorge Comm'n, 121 Wash. 2d 366, 849 P.2d 1225 (1993); Jankelson v. Lynn Construction, 72 Wash. App. 232, 864 P.2d 9 (1993).

This appeal followed.

DECISION

Appellants assert that MAR 7.1's 20-day time period for service is not jurisdictional but can be satisfied by substantial compliance. In support, appellants cite to this court's opinion in Hoirup v. Empire Airways, Inc., 69 Wash. App. 479, 483, 848 P.2d 1337 (1993). We agree.

In Hoirup, this court held that MAR 7.1's time requirement for service of notice is not jurisdictional. There, the filing of a motion for trial de novo was timely but service not made until 35 days after the arbitration decision. This court held such service to be in substantial compliance with the rule, stating:

While service of notice on all parties is the requirement of the rule, neither MAR 7.1 nor any other applicable legal principle makes that a jurisdictional requirement. Empire received actual notice of the appeal, and makes no claim or proof of prejudice by the appellant's delay of service and failure to file the proof of service with the court.

Hoirup, 69 Wash. App. at 483.

Respondent suggests that Hoirup is no longer good law after the Supreme Court's opinion in Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wash. 2d 366, 849 P.2d 1225 (1993). We disagree.

Schaefco concerned the 30-day time requirement for filing a notice of appeal under RAP 5.2(a) and the 10-day time limit for filing and serving a motion for reconsideration under CR 59(b). Schaefco timely filed its motion for reconsideration but did not serve it within the 10 day period. Schaefco, 121 Wash. 2d at 367. Schaefco then filed a notice of appeal.

Respondent moved to dismiss, arguing that the motion for reconsideration was untimely, and therefore did not extend the 30-day time period for filing a notice of appeal. A court of appeal's commissioner ruled in favor of respondent. That ruling was modified and the appeal certified to the Supreme Court.

Respondent argued that the Supreme Court lacked jurisdiction to hear the case because the notice of appeal was untimely. The court agreed, stating that "because Schaefco's motion for reconsideration was not timely, it did not extend the 30-day limit for filing the notice of appeal. As such, the notice of appeal Schaefco filed on ...


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