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SUPREME COURT OF ARIZONA
THE HONORABLE JOHN CHRISTIAN REA, )
JUDGE OF THE SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for )
the County of Maricopa,
Respondent Judge, )
MARCO MORA and FLOR MORA,
Real Parties in Interest. )
Arizona Supreme Court
Court of Appeals
No. 1 CA-SA 10-0266
O P I N I O N
Special Action from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
Opinion of the Court of Appeals Division One
226 Ariz. 438, 250 P.3d 215 (2011)
CAVANAGH LAW FIRM
Steven D. Smith
Thomas C. Hall
Taylor C. Young
Attorneys for Pauline Cosper
KNAPP & ROBERTS PC
David L. Abney
WILLIAM J. WOLF ATTORNEY AT LAW
William J. Wolf
Attorneys for Marco and Flor Mora
B R U T I N E L, Justice
Arizona Rule of Civil Procedure 77(g)(1) requires that
those appealing from arbitration awards “simultaneously with the
filing of the Appeal from Arbitration and Motion to Set for
Trial . . . file a list of witnesses and exhibits intended to be
used at trial.”
We hold that this list can only be supplemented
for good cause under Rule 77(g)(4).
In September 2009, Marco and Flor Mora sued Pauline
Cosper for damages arising from a car accident.
In August 2010,
after mandatory arbitration, the arbitrator entered an award in
favor of the Moras.
The next day, Cosper filed a notice of
appeal seeking a trial de novo in superior court and a list of
supplemental witness list designating a biomechanical expert and
supplemental disclosures as untimely.
action petition in the court of appeals.
That court accepted
jurisdiction and granted relief, holding that “Rule 77 permits
Procedure] 26 through 37 within [eighty] days after the filing
of an appeal from compulsory arbitration, without requiring that
parties show good cause or obtain the permission of the court.”
Cosper v. Rea ex rel. County of Maricopa, 226 Ariz. 438, 443
¶ 18, 250 P.3d 215, 220 (App. 2011).
We granted review to clarify the requirements of Rule
We have jurisdiction under Article 6, Section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24 (2003).
Rules 26 through 37 of the Arizona Rules of Civil
disclosure obligations, including the disclosure of a party’s
arbitration, however, by limiting the time for discovery and
additional disclosures of witnesses and exhibits.
Rule 77(g) states, in pertinent part, as follows:
The appellant shall simultaneously with
Arbitration and Motion to Set for Trial
referenced [in Rule 77(a)] also file a
list of witnesses and exhibits intended
to be used at trial that complies with
the requirements of Rule 26.1 of these
If the appellant fails or
elects not to file such a list of
witnesses and exhibits together with
the Appeal from Arbitration and Motion
to Set for Trial, then the witnesses
and exhibits intended to be used at
trial by appellant shall be deemed to
be those set forth in any such list
previously filed in the action or in
pursuant to Rule 75(c) of these rules.
. . . .
The parties shall have 80 days from the
filing of the Appeal from Arbitration
and Motion to Set for Trial to complete
discovery, pursuant to Rules 26 through
37 of these rules.
For good cause shown the court may
extend the time for discovery set forth
in subsection (3) above and/or allow a
supplemental list of witnesses and
exhibits to be filed.
Subsection (g)(1) requires that witness and exhibit
lists be filed simultaneously with the notice of appeal.
appellant who fails to file a list is limited to the witnesses
and exhibits “in any such list previously filed in the action.”
Ariz. R. Civ. P. 77(g)(1).
The rule’s explicit deadline for
filing witness and exhibit lists is more restrictive than the
deadlines for disclosure for non-arbitration cases under Rule
26.1(b), which generally entitles parties to supplement their
Subsection (g)(4) also contradicts any ongoing right
to additional disclosure.
This subsection states that “[f]or
good cause shown the court may . . . allow a supplemental list
of witnesses and exhibits to be filed.” Id. (emphasis added).
Parties cannot possess an automatic and unqualified right to
supplement witness and exhibit lists when the rule expressly
requires good cause and approval of the court.
court of appeals erred in holding that the right to supplement
witness and exhibit lists exists “without requiring that parties
show good cause or obtain the permission of the court.”
226 Ariz. at 443 ¶ 18, 250 P.3d at 220.
subsections of Rule 77(g) by concluding that during the eighty
witnesses and exhibits.
This interpretation obviates (g)(1) by
removing its mandate that witness and exhibit lists be filed
subsection (g)(4)’s requirement of court permission to file a
supplemental list does not apply until after eighty days.
both the rule’s text and the consequences of creating an ongoing
eighty-day disclosure period convince us that this is not what
the rule intended.
Although Cosper correctly points out that subsection
intended new witnesses in civil cases, we disagree that (g)(3)
arbitration civil cases cannot trump Rule 77(g)(1) and (g)(4),
Guardianship/Conservatorship of Denton v. Superior Court, 190
Ariz. 152, 157, 945 P.2d 1283, 1288 (1997) (explaining that
under rules of statutory construction, newer, specific statutes
distinguishes between discovery and the filing of supplemental
extend the time for discovery set forth in subsection (3) above
and/or allow a supplemental list of witnesses and exhibits to be
supplemental disclosure of witnesses and exhibits, the specific
subsection (g)(4) would be unnecessary.
See Arizona Dep’t of
Revenue v. Action Marine Inc., 218 Ariz. 141, 143 ¶ 10, 181 P.3d
188, 190 (2008) (noting that this court will not construe text
to render any of its terms meaningless).
Subsection (g)(3) sets an eighty-day period in which to finish
disclose new witnesses until the eightieth day.1
Such a witness
limit, and either the trial court would have to extend discovery
pursuant to (g)(4), or the opposing party would potentially be
placed at a substantial disadvantage.
Because Rule 77(g) requires a showing of good cause
exhibits and witnesses on appeal from an arbitration award, we
vacate the court of appeals’ opinion and affirm the superior
court’s order striking Cosper’s supplemental witness and exhibit
Robert M. Brutinel, Justice
Rule 26.1(b)(2), parties must seek leave of the trial
court to disclose witnesses and exhibits within sixty days of
Thus, even if Rule 26 trumped Rule 77’s specific
disclosure requirements, a party’s right to add additional
witnesses and exhibits would be contingent upon the trial date
and would not automatically last eighty days.
Rebecca White Berch, Chief Justice
Andrew D. Hurwitz, Vice Chief Justice
W. Scott Bales, Justice
A. John Pelander, Justice
The Moras sued Pauline Cosper for damages arising from a car accident. After mandatory arbitration, the arbitrator entered an award in favor of the Moras. The next day, Cosper filed a notice of appeal seeking a trial de novo and a list of witnesses and exhibits. Approximately two months later, Cosper filed a supplemental witness list designating an expert and disclosing her report. The superior court struck the supplemental disclosures as untimely, noting that Cosper had not attempted to show good cause for the later disclosure under Ariz. R. Civ. P. 77. The court of appeals granted relief, holding that Rule 77 permits supplemental disclosure within eighty days after the filing of an appeal from compulsory arbitration without requiring that parties show good cause. The Supreme Court vacated the court of appeals and affirmed the superior court, holding that Rule 77(g)(1) requires that those appealing from arbitration awards simultaneously with the filing of the appeal file a list of witnesses and exhibits intended to be used at trial, and this list can only be supplemented for good cause under Rule 77(g)(4).
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