Cosper v.Rea/Mora – 3/3/2011

March 9, 2011

Arizona Court of Appeals Division One Holds That Arizona Rule of Civil Procedure 77 Permits Supplemental Disclosure Within 80 Days of Filing an Appeal From Compulsory Arbitration, Without Requiring a Showing of Good Cause.

Following a motor vehicle accident between Cosper and Mora, the resulting personal injury action was referred to compulsory arbitration.  The Moras prevailed in the arbitration and Cosper appealed the arbitration award on August 6, 2010, at which time Cosper did not identify any expert witnesses.  The parties prepared a joint Pretrial Memorandum in which they proposed a schedule for the disclosure of expert testimony.  The trial was set for December 20, 2010.  Cosper identified an expert witness on October 7, 2010 and disclosed the expert’s report on October 15, 2010.  The disclosure of the report was 70 days after the filing of her appeal and 66 days before trial. The Moras moved to strike the expert disclosure arguing that Ariz. R. Civ. P. 77(g) requires that all witnesses and exhibits be disclosed at the time the notice of appeal from arbitration is filed.  The trial court granted the motion to strike, holding that Rule 77(g)(4) requires a showing of good cause for any supplemental disclosures made after those permitted in Rule 77(g)(1). Cosper then filed this special action.    

The Arizona Appeals Court accepted jurisdiction and granted relief to Cosper, holding that rule 77(g) permits supplemental disclosure pursuant to Rules 26 through 37 within 80 days of the filing of the notice of appeal from compulsory arbitration without requiring a showing of good cause and without obtaining permission from the court.  Noting that in appealing from a compulsory arbitration award a party has a right to a trial de novo, the Court reasoned that this right would be hollow if not accompanied by the right to prepare with discovery and disclosure.  Rule 77(g)(3) provides that “[t]he 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.”  Rule 77(g)(4) provides: “[f]or 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.”  Interpreting the rule as a whole, the Court explained that Rule 77(g)(3) permits litigants the opportunity to engage in additional discovery that is necessary for trial, but that would be too costly or burdensome for a compulsory arbitration hearing.  Rule 77(g)(4), on the other hand, preserves the court’s discretion to allow additional discovery beyond the limits of Rule 77(g)(3).

Judge Swann authored the opinion, Judges Irvine and Portley concurred.