§10.7 REVIEW OF RULING OF COMMISSIONER OR CLERK
Any person aggrieved by a ruling of a commissioner or clerk may move to modify the ruling.
(1) Motion to modify
Any person seeking to modify a ruling of a commissioner or clerk must serve and file a motion to modify the ruling not later than 30 days after the ruling is filed. RAP 17.7. There are some instances in which review is not permitted . See, e.g., RAP 18.14(i) (denial of motion on the merits). Generally, if a motion to modify is not filed, the ruling becomes the final decision of the court at the expiration of the 30-day period. An unchallenged ruling by the commissioner becomes the decision of the court and can, under some circumstances, affect the scope of review on the merits.
| Practice Tip: | The 30-day time period for motions to modify commences from the date of the commissioner's ruling, and not from the date the ruling is transmitted to counsel and the parties. When calendaring a motion to modify, counsel should check the date of the ruling itself and not rely on the date of the cover letter from the clerk that accompanies the ruling. |
Generally, arguments made in motions are not considered in connection with the appeal on the merits. However, under some circumstances, the court may consider arguments made in a motion in the direct appeal. For instance, in Rosander v. Nightrunners Transport, Ltd., 147 Wn.App. 392, 398 n.3, 196 P.3d 711 (2008), the court considered the substantive arguments made by the parties in support of and opposition to a motion to modify a commissioner's ruling, denying their request to strike a due process argument made for the first time in appellants' reply brief in the direct appeal.
Unlike the federal courts, in which appellate jurisdiction can be challenged at any time, a commissioner's or clerk's ruling that an order is appealable may be challenged only by a timely motion for modification. See Hough v. Ballard, 108 Wn.App. 272, 31 P.3d 6 (2001) (panel refused to consider challenge to appellate jurisdiction when respondent failed to seek modification of commissioner's ruling determining that order was appealable as a matter of right); see also Gould v. Mut. Life Ins. Co., 37 Wn.App. 756, 683 P.2d 207 (1984) (rejecting challenge to adequacy of trial court's determination offinality under CR 54(b) when the argument had previously been presented to, and rejected by, the appellate court commissioner, and no review of the commissioner's ruling...
