Cosper v. Mora – 2/6/2012

February 29, 2012

Arizona Supreme Court Holds That The List of Witnesses and Exhibits Required by Arizona Rule of Civil Procedure 77(g)(1) 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 witnesses and exhibits.  Two months later, Cosper filed a supplemental witness list.  The superior court granted the Mora’s motion to strike the supplemental disclosure, noting that Cosper had not attempted to show good cause for the late disclosure under subsection (g)(4).

Cosper subsequently filed a special action petition and the court of appeals 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.  The Arizona Supreme Court granted review to clarify the requirements of Rule 77(g).

In Arizona, although Rules 26 through 37 of the Rules of Civil Procedure govern discovery generally, Rule 77 limits the time for discovery and additional disclosures of witness and exhibits in cases subject to mandatory arbitration.  Rule 77(g), in particular, states that “[t]he 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 witness and exhibits intended to be used at trial that complies with the requirements of Rule 26.1 of those rules.”  Ariz. R. Civ. P. 77(g)(1).  Subsection (g)(4) allows the court to allow a supplemental list of witness and exhibits to be filed “[f]or good cause shown.”   The Supreme Court concluded that the court of appeals erred in holding that the right to supplement witness and exhibits lists exists without requiring that parties show good cause or obtain permission of the court because it directly contradicts the language of Rule 77(g)(4).   The Supreme Court rejected the contention that subsection (g)(3), which refers to Rules 26 through 37, creates the right to supplement disclosure of new witnesses because, according to the Court, the rules governing non-arbitration civil cases cannot trump Rule 77(g)(1) and (g)(4).  Accordingly, the Supreme Court vacated the court of appeals’ opinion and affirmed the superior court’s order striking Cosper’s supplemental witness and exhibit list.

Justice Brutinel authored the unanimous opinion.