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Westberg v. All-Purpose Structures

May 9, 1997

GABRIELE WESTBERG, RESPONDENT,
v.
ALL-PURPOSE STRUCTURES INC., A WASHINGTON CORPORATION, AMERICAN BONDING CO., A FOREIGN CORPORATION, AND HICORP STEEL BUILDINGS, INC., A FOREIGN CORPORATION, DEFENDANTS. ALL-STRUCTURES, INC., A WASHINGTON CORPORATION, THIRD-PARTY PLAINTIFF, V. KAMOL LEKHAKUL, D/B/A GL ENGINEERS, THIRD- PARTY DEFENDANT, AND ROLLA B. BOUGHAN, D/B/A CONSOLIDATED ENGINEERING, APPELLANT.



Appeal from Superior Court of Thurston County. Docket No: 93-2-01851-4. Date filed: 07/31/95. Judge signing: Hon. Richard A. Strophy.

As amended June 19, 1997.

Authored by David H. Armstrong. Concurring: J. Dean Morgan, J. Robin Hunt.

The opinion of the court was delivered by: Armstrong

ARMSTRONG, J. -- Rolla Boughan, a third-party defendant in an action for negligent design and construction of a pole barn, received notice that the matter would be arbitrated pursuant to the Mandatory Rules of Arbitration. Boughan did not appear for the arbitration hearing because he believed he was not responsible for the alleged negligence. The arbitrator granted an award against Boughan, who then requested a trial de novo. The trial court denied the request because Boughan had not participated in the arbitration hearing as required by Mandatory Arbitration Rule 5.4.

Boughan appeals, claiming that: (1) he participated in the arbitration by answering the complaint and interrogatories; (2) the trial court did not make a specific finding that he acted "without good cause"; (3) the notice of arbitration violated due process by not informing him that failure to appear would result in waiver of his right to trial de novo; and (4) the mandatory arbitration rules abridge constitutional and statutory rights to trial by jury. We affirm.

FACTS

Gabrielle Westberg sued All-Purpose Structures, Inc., alleging negligent construction of a pole barn. All-Purpose Structures brought a third-party complaint against Rolla Boughan, alleging that he had negligently designed the barn. Boughan answered All-Purpose Structures' complaint and interrogatories, denying any involvement in the pole barn project.

In a letter dated April 25, 1995, the arbitrator informed Boughan that an arbitration would take place on June 12, 1995. *fn1 Although originally represented by counsel, Boughan was pro se when he received the letter. Boughan did not appear at the hearing, and the arbitrator awarded All-Purpose $20,000 against him. The award was partly based on Boughan's failure to "appear and defend."

Boughan requested a trial de novo, which the trial court denied because Boughan had "waived his right to seek trial de novo by having failed to participate in the arbitration hearing without good cause." The court then entered a judgment on the arbitration award.

ANALYSIS

At issue is Mandatory Arbitration Rule (MAR) 5.4:

The arbitration hearing may proceed, and an award may be made, in the absence of any party who after due notice fails to participate or to obtain a continuance. If a defendant is absent, the arbitrator shall require the plaintiff to submit the evidence required for the making of an award. In a case involving more than one defendant, the absence of a defendant does not preclude the arbitrator from assessing as part of the award damages against the defendant or defendants who are absent.

The arbitrator, for good cause shown, may allow an absent party an opportunity to appear at a subsequent hearing before making an award. A party who fails to participate without good cause waives the right to a trial de novo. The interpretation of a court rule is a matter of law that we review de novo. See In re Marriage of Hansen, 81 Wash. App. 494, 498, 914 P.2d 799 (1996) ("The construction of a statute is a matter of law, and the construction given a statute by a trial court is reviewed de novo."); O'Neill v. Jacobs, 77 Wash. App. 366, 369, 890 P.2d 1092 (1995) ("Courts apply the same principles for interpreting court rules as for construing statutes."). When interpreting a rule, "we give effect to the ordinary meaning of its language." O'Neill, 77 Wash. App. at 369.

Boughan argues that he "participated" in the arbitration by answering interrogatories and answering the third-party complaint. He is incorrect. First, Boughan answered the interrogatories and complaint before appointment of the arbitrator; these answers were not, therefore, part of the arbitration. See MAR 1.3(b)(1). *fn2 Second, Boughan did not submit a pre-arbitration statement as required by MAR 5.2. *fn3 Third, MAR 5.4 deals exclusively with the arbitration hearing, not the overall arbitration proceeding. The section is entitled "ABSENCE OF PARTY AT HEARING." The first phrase of the section reads, "The arbitration hearing may proceed . . . . " Thus, the phrases "fail to participate" and "absence of any party" in MAR 5.4 can only refer to the hearing. See Washington State Bar Ass'n, Alternative Dispute Resolution Deskbook: Arbitration and Mediation in Washington sec. 2.3(5)(e), at 2-50 (2d ed. 1995) ("The words 'fail to participate' are used in the same context as the phrase 'absence of any party' and should be understood to mean that the party is absent altogether, as in default."). This interpretation is supported by Trowbridge v. ...


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