Pauline Cosper v. Hon. rea/mora

SUPREME COURT OF ARIZONA
En Banc
PAULINE COSPER, ) Arizona Supreme Court
) No. CV-11-0083-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 10-0266
THE HONORABLE JOHN CHRISTIAN REA, )
JUDGE OF THE SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Maricopa, ) No. CV2009-029396
)
Respondent Judge, )
)
MARCO MORA and FLOR MORA, ) O P I N I O N
)
Real Parties in Interest. )
)
__________________________________)
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 Phoenix
By Steven D. Smith
Thomas C. Hall
Taylor C. Young
Attorneys for Pauline Cosper
KNAPP & ROBERTS PC Scottsdale
By David L. Abney
And
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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 The superior court granted the motion, noting that
Cosper had not attempted to show good cause for the late
disclosure under subsection (g)(4). Cosper filed a special
action petition in the court of appeals. That court accepted
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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 We granted review to clarify the requirements of Rule
77(g). We have jurisdiction under Article 6, Section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
¶5 Rules 26 through 37 of the Arizona Rules of Civil
Procedure govern discovery generally, and Rule 26.1 imposes
disclosure obligations, including the disclosure of a party’s
expected witnesses and exhibits. Rule 77 more particularly
governs the resolution of cases subject 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
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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) 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.
(4) 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.
¶7 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
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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 period prescribed in (g)(3), parties have the
right to both conduct discovery and disclose additional
witnesses and exhibits. 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 Although Cosper correctly points out that subsection
(g)(3) refers to Rules 26 through 37, and Rule 26.1(b)(2)
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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 governs disclosure in appeals from
arbitration awards. When a specific rule conflicts with a
general one, the specific rule controls. See In 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 exhibit lists in
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).
¶11 Additionally, the court of appeals’ interpretation
could undermine Rule 77’s goal of a prompt trial de novo.
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Subsection (g)(3) sets an eighty-day period in which to finish
discovery before trial. But defining discovery to include
disclosure of additional witnesses would permit a party to
disclose new witnesses until the eightieth day.1 Such a witness
almost certainly could not be deposed within the 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 Because Rule 77(g) requires a showing of good cause
and 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.
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CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
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