Justia.com Opinion Summary: 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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SUPREME COURT OF ARIZONA
En Banc
PAULINE COSPER,
)
)
Petitioner, )
)
v.
)
)
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
No. CV-11-0083-PR
Court of Appeals
Division One
No. 1 CA-SA 10-0266
Maricopa County
Superior Court
No. CV2009-029396
O P I N I O N
Special Action from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
AFFIRMED
________________________________________________________________
Opinion of the Court of Appeals Division One
226 Ariz. 438, 250 P.3d 215 (2011)
VACATED
________________________________________________________________
CAVANAGH LAW FIRM
By
Steven D. Smith
Thomas C. Hall
Taylor C. Young
Attorneys for Pauline Cosper
Phoenix
KNAPP & ROBERTS PC
By
David L. Abney
Scottsdale
And
1
WILLIAM J. WOLF ATTORNEY AT LAW
Phoenix
By
William J. Wolf
Attorneys for Marco and Flor Mora
________________________________________________________________
B R U T I N E L, Justice
¶1
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).
I.
¶2
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
witnesses
and
exhibits.
In
October
2010,
Cosper
filed
a
supplemental witness list designating a biomechanical expert and
disclosing
his
report.
The
Moras
moved
to
strike
these
supplemental disclosures as untimely.
¶3
Cosper
The
had
disclosure
superior
not
under
court
attempted
subsection
granted
to
show
(g)(4).
the
good
cause
Cosper
action petition in the court of appeals.
2
motion,
noting
for
filed
the
a
that
late
special
That court accepted
jurisdiction and granted relief, holding that “Rule 77 permits
supplemental
disclosure
pursuant
to
[Arizona
Rules
of
Civil
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).
¶4
77(g).
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).
II.
¶5
Procedure
Rules 26 through 37 of the Arizona Rules of Civil
govern
discovery
generally,
and
Rule
26.1
imposes
disclosure obligations, including the disclosure of a party’s
expected
witnesses
governs
the
and
exhibits.
resolution
of
Rule
cases
77
more
subject
particularly
to
mandatory
arbitration, however, by limiting the time for discovery and
additional disclosures of witnesses and exhibits.
¶6
Rule 77(g) states, in pertinent part, as follows:
(1)
The appellant shall simultaneously with
the
filing
of
the
Appeal
from
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
rules.
If the appellant fails or
elects not to file such a list of
3
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
the
pre-hearing
statement
submitted
pursuant to Rule 75(c) of these rules.
. . . .
(3)
(4)
¶7
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.
An
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
disclosures
without
leave
of
court
up
to
sixty
days
before
trial.
¶8
Subsection (g)(4) also contradicts any ongoing right
4
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.
Accordingly, the
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.”
Cosper,
226 Ariz. at 443 ¶ 18, 250 P.3d at 220.
¶9
The
court
of
appeals
attempted
to
harmonize
the
subsections of Rule 77(g) by concluding that during the eighty
day
discovery
right
to
period
both
prescribed
conduct
witnesses and exhibits.
in
discovery
(g)(3),
and
parties
disclose
have
the
additional
This interpretation obviates (g)(1) by
removing its mandate that witness and exhibit lists be filed
concurrently
with
a
notice
of
appeal.
It
also
means
that
subsection (g)(4)’s requirement of court permission to file a
supplemental list does not apply until after eighty days.
But
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.
¶10
(g)(3)
Although Cosper correctly points out that subsection
refers
to
Rules
26
through
5
37,
and
Rule
26.1(b)(2)
generally
allows
parties
to
supplement
their
disclosures
of
intended new witnesses in civil cases, we disagree that (g)(3)
creates
the
same
right
here.
The
rules
governing
non-
arbitration civil cases cannot trump Rule 77(g)(1) and (g)(4),
which
specifically
arbitration
general
governs
awards.
one,
the
When
disclosure
a
specific
specific
rule
in
rule
appeals
conflicts
controls.
See
from
with
In
a
re
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
govern
older,
general
statutes).
Moreover,
Rule
77(g)
distinguishes between discovery and the filing of supplemental
witness
lists.
See,
e.g.,
Rule
77(g)(4)
(“[T]he
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.”).
If
“discovery”
in
subsection
(g)(3)
included
the
supplemental disclosure of witnesses and exhibits, the specific
reference
to
supplemental
witness
and
subsection (g)(4) would be unnecessary.
exhibit
lists
in
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).
¶11
could
Additionally,
undermine
Rule
the
77’s
court
goal
6
of
of
a
appeals’
prompt
interpretation
trial
de
novo.
Subsection (g)(3) sets an eighty-day period in which to finish
discovery
disclosure
before
of
trial.
But
additional
defining
witnesses
discovery
would
permit
to
a
include
party
to
disclose new witnesses until the eightieth day.1
Such a witness
almost
the
certainly
could
not
be
deposed
within
eighty-day
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.
¶12
and
Because Rule 77(g) requires a showing of good cause
permission
of
the
court
to
file
a
supplemental
list
of
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
list.
_____________________________________
Robert M. Brutinel, Justice
1
Under
Rule 26.1(b)(2), parties must seek leave of the trial
court to disclose witnesses and exhibits within sixty days of
trial.
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.
7
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
8
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