Volume XIV, Issue II
March/April 2000

The Never-Ending Nonsense of Nevers

by Phil Brennan

For the past several years the appellate courts have wreaked havoc on the life of the practitioner with an array of nitpicking decisions interpreting the trial de novo requirements of the Mandatory Arbitration Rules (MARs). Many decisions have held that the slightest omission by the practitioner waives his client's constitutional right to his day in court. The nitpicking should be eliminated and replaced by a kinder and gentler sanctions formula, and a monument to all of our fallen MAR practitioners should be constructed in the Temple of Justice.

The nonsense began with Nevers v. Fireside, 133 Wn.2d 804, 947 P.2d 721(1997). In this case, the aggrieved party filed a request for trial de novo on the 20th day following the arbitration award, but did not serve it until the 23rd day, as a consequence of mailing it, which added three days. The trial court struck the trial de novo because the service was untimely and no "proof of service" had ever been filed. Division I reversed, finding "substantial compliance" with the MARs, since the request was timely filed and the minor delay in service prejudiced no one. Nevers v. Fireside, 82 Wn.App. 441 (1987), accord O'Neill v. Jacobs, 77 Wn.App. 366 (1995); Hoirup v. Empire Airways, Inc., 69 Wn.App. 479 (1993) (forgiving omissions and allowing practitioner's client to have his day in court).

Pushing aside the pragmatism of Division I, a unanimous Supreme Court reversed. The Court held that the legislature demanded nothing less than "strict compliance" with the MARs, and that counsel's failure to timely file the request along with proof that it had been timely served was fatal. Nevers v. Fireside, 133 Wn.2d 804 at 811-12. The court held that the MARs overriding goal of reducing court congestion favored the draconian solution of striking trials de novo (as opposed to sanctioning counsel) when mistakes were made. Rejecting Division I's conclusion that the other party had not been prejudiced, the Court cited the self-serving affidavit of opposing counsel, which claimed "real and substantial" prejudice by not prevailing on a technicality. Id. at 813, note 5.

Nonsense has an uncanny ability to breed nonsense and Nevers has given us a litter of bad law. In Roberts v. Johnson, 137 Wn.2d 84 (1999), the court extended Nevers nitpicking to arbitrators, holding that an arbitrator's failure to file proof of service of the award is a no-no that prevents the 20-day appeal clock from running. Roberts even offers a bonus section on what the practitioner should do if the arbitrator fails to file proof of service. Rather than pick up the phone ("hey arbitrator, send me proof of service"), the practitioner should file a CR 60(b)(1) motion to set aside the award. Roberts at 93. If only there were 36 hours in a day.

Having been reversed so many times for favoring the pragmatic approach to MAR oversights, the appellate courts have added to the Nevers horror. In Newton v. Legarsky, 984 P.2d 417 (1999), the defendant timely filed a request for trial de novo which had a "certificate of delivery" stating that it had been given to ABC Legal Messenger for delivery. There was no question that the request for trial de novo was timely filed and served. The only issue was whether a certificate of delivery satisfied, or substantially satisfied the proof of service requirement of MAR 7.1. The court held that a certificate of delivery to the process server is not proof of service and does not satisfy the strict mandate of Nevers. In other words, the folks at ABC can't be trusted as they may opt for an early happy hour and neglect to do what they are paid to do. Fortunately for the practitioner, in Newton, such an oversight was not fatal, as the arbitrator committed his own goof (failing to file proof of service of his opinion under MAR 6.2) and therefore the 20 day clock never began to run. Thus, no one in that case got the proof of service conundrum right, illustrating how Nevers has invaded all of our offices.

The practical effect of what Nevers has done is enough to make a Sierra Club member pout. Our firm recently defended a case sent to arbitration. Tree number one died with the issuance of the award, which was a necessary fatality. Tree number two died when the arbitrator filed a separate certificate of service of the arbitration award, in which she recounted in graphic detail how she delivered the decision to ABC Legal Messengers. Division II then issued Newton, prompting the arbitrator to kill tree number three, by filing an amended certificate service of arbitration award, this time attaching courier slips proving that ABC actually delivered the request (killing trees 4 and 5). Thus, Nevers clear-cut an entire grove before any request for trial de novo occurred. Suffice it to say another grove fell when we filed our request for trial de novo, duplicating the arbitrator's painstaking formula. The final tally: 8 trees, 4 trips by ABC Legal Messengers (buy stock in this company!!), new expando folders for all the new paper, and ulcer medication for the author. As a popular diet guru exclaims, isn't it time we stopped the insanity?

The solution appears in several of the appellate decisions reversed by Nevers. First, the Supreme Court should borrow a line from Bill Clinton and admit a recent error in judgment, i.e. Nevers. Next, it should implement a system in which minor MAR omissions lead to a sanction, not a waiver of an individual's day in court. For example, while the failure to file a request for trial de novo within 20 days warrants waiver of a trial, any failure in filing proof the document was served (why would anyone intentionally not serve such notice?) could be remedied via sanction, assuming of course the other attorney ever noticed or cared! Sanctions could be substantial (i.e. $100 for each day the proof of service is not filed), the proceeds of which would go to ABC Legal Messengers, to make up for the losses, which will result when the Nevers gravy train dries up.

How ironic that the Nevers court justified its strict interpretation on the legislature's desire to curb court backlog. If this was the goal, it backfired, as Superior Court judges regularly hear Nevers motions, and the appellate courts have a plethora of Nevers appeals. Let's end the Nevers nonsense, restore pragmatism to the application of civil rules, and decide cases on the merits, rather than on technicalities.

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