Riendeau v. Wal-Mart Stores, Inc. – 2/25/2010

March 8, 2010

Arizona Court of Appeals Division One Holds that the Tardy Filing of a Cost Bond on Appeal from Compulsory Arbitration Does Not Render the Appeal to Superior Court Jurisdictionally Defective.

Plaintiffs, husband, and wife, sued for damages resulting from the wife’s slip and fall at a Wal-Mart store.  The case proceeded to compulsory arbitration pursuant to Ariz. R. Civ. P. 72-77 and the arbitrator rendered a decision.  After prematurely filing a notice of appeal to superior court, Plaintiffs were tardy in filing the cost bond required by Rule 77(b).  The superior court denied Wal-Mart’s motion to strike the notice of appeal based the untimely filing of the cost bond.  The superior court later entered judgment against plaintiffs, and they appealed.

The Court of Appeals affirmed the judgment by unpublished memorandum decision.  The published opinion considered solely the Court’s jurisdiction.  The Court held that the superior court had jurisdiction of the appeal from compulsory arbitration, and that the Court of Appeals thus had jurisdiction to review the superior court’s judgment.  

The premature appeal to superior court from compulsory arbitration was not jurisdictionally defective.  Instead, the appeal became effective upon entry of the final arbitration award.  See Guinn v. Schweitzer, 190 Ariz. 116, 117-18, 945 P.2d 837, 838-39 (App. 1997).  The tardy filing of the cost bond also did not deprive the superior court of jurisdiction.  A.R.S. § 12-133(H) allows perfection of an appeal “within the time limited by rule of court” and Rule 6(b) authorizes the superior court to extend time for all filings, with exceptions not applicable here. 

The Court disagreed with Varga v. Hepburn, 116 Ariz. 539, 570 P.2d 226 (App. 1977), which held that Rule 6(b) did not allow the superior court to extend the time to file a cost bond on appeal from compulsory arbitration.  The Court found Varga’s holding at odds with A.R.S. § 12-133(H).

Judge Kessler wrote the opinion; Judges Irvine and Brown concurred.