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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