Morello v. Vonda (Division 2, April 24, 2012), is an interesting little case about service of process. However, since it interprets and applies former Mandatory Arbitration Rule 7.1, which subsequently has been materially amended, the case will be of little interest to anyone going forward. But hey, if you like service of process, read on!
Laura Morello and Rebecka Vonda got into some kind of “motor vehicle accident,” though the opinion does not specify the motor vehicles. I’m going to assume they were both on scooters. Anyway, Morello suffered some injuries and therefore filed a claim against Vonda, which was subject to mandatory arbitration. Morello won. Vonda wasn’t happy to leave it at that, so she filed for a trial de novo in state court pursuant to the former MAR 7.1.
MAR 7.1 provided specific procedures for filing and serving requests for trials de novo. Morello didn’t think that Vonda followed those procedures, so she moved to strike Vonda’s request. The trial court denied Morello’s motion. Morello appealed.
Here’s the problem: To obtain a trial de novo, former MAR 7.1 required a party to file, within 20 days of the arbitrator’s rule, both (1) a request for trial de novo, and (2) evidence that a copy of the request had been served on the other parties. According to the Court of Appeals, the Supreme Court previously made clear that only strict compliance — not substantial compliance — was sufficient to satisfy MAR 7.1. And that means that the evidence of service needed to consist of evidence that the other parties had actually been served, not merely that they were going to be served or that service was intended.
That’s the background. The question is whether Vonda strictly followed the rule. Well, she timely filed her request and a proof of service that specifically stated Morello “has been” served. So that sounds good. But there’s a catch. Morello’s counsel was served by messenger at 4:20 on the day of filing — the last day of the 20-day deadline. There’s just no way the messenger had time to serve Morello, then inform Vonda’s counsel, have Vonda’s counsel sign the proof of service, and then file the proof of service all before the court closed at 4:30. And indeed, the request and proof of service had been filed at 3:42 that day, before the request had been served on Morello.
You can see where this is going. Despite the fact that the proof of service properly stated that Morello had been served — not an intention to serve or a plan to serve but actual service — Morello had not been served at the time the request and proof of service were filed. So, I mean, if you want to get technical about it, I guess that was sort of a lie.
The Court of Appeals didn’t have any problem with this. To the contrary, the Court held that Vonda strictly complied with former MAR 7.1. Why? Well, the proof of service did indeed state that Morello had been served, so that was strict compliance. And, in fact, Morello was served before the 20-day deadline passed. So that’s it. Done. Strict compliance.
The Court of Appeals called Morello’s arguments to the contrary not a matter of service, but more a matter of the sequence of service. And MAR 7.1 didn’t say anything about the sequence of service. Rather, a party just needed to file “some evidence” of service, and the Court concluded that the attorney’s declaration was sufficiently “some evidence” to show that Morello was in fact served.
So that’s weird. Contrary to the Court of Appeals, the former MAR 7.1 does indeed having something to say about the sequence of service. If a statement of intention to serve is insufficient evidence of service, then sequence matters. What is the difference between (a) intending to complete an act and (b) succeeding to complete an act if not a difference of timing and sequence. First you intend and then you succeed (or fail!). That’s the sequence!
Judge Armstrong, in dissent, wasn’t buying it either. Judge Armstrong’s disagreement was not just with the matter of sequence, but with the Court’s apparent approval of what appears to have been a materially false declaration of service. Vonda’s counsel stated that service had been effected, when really service had only been planned or intended. Judge Armstrong explained: “Implicit in the majority’s reasoning is that a false affidavit of service strictly complies with MAR 7.1(a).” And that can’t be what the Supreme Court intended when it mandated strict compliance with the rule.
In any event, this is all likely much ado about nothing. The new MAR 7.1 states that proof of service does not need to be filed within the 20-day period. So a party can go ahead and file the request, serve the other parties, and then file the proof of service at some later point. That’s pretty easy.