Civil Procedure—Dismissal of Appeal from Compulsory Arbitration for Failure to Participate in Good Faith
Romer-Pollis v. Ada, __ Ariz. Adv. Rep. __, 1 CA-CV 08-0692 (App., Div. I, December 24, 2009) (J. Portley)
PLAINTIFF'S FAILURE TO ATTEND COMPULSORY ARBITRATION HEARING AND FAILURE TO SUBMIT PRE-HEARING STATEMENT PER ARBITRATOR'S ORDER CONSTITUTES ADEQUATE GROUNDS TO DISMISS PLAINTIFF'S APPEAL FROM ARBITRATION AWARD
Plaintiff filed a lawsuit against the defendant for injuries sustained in an automobile accident. The case was subject to compulsory arbitration. The arbitrator scheduled a hearing and ordered a pre-hearing statement be filed by each party at least 15 days before the hearing. The plaintiff never filed this statement.
The plaintiff did not attend the hearing. Instead her lawyer appeared on her behalf telephonically. She was awarded $4,000 plus taxable costs and appealed this award. The defense moved to dismiss the appeal on the basis the plaintiff failed to appear at the hearing and participate in good faith. The trial court agreed and granted the motion. Plaintiff appealed this dismissal to the Court of Appeals.
Arizona Rule of Civil Procedure 77(a) states that an appeal is subject to dismissal for failure to appear a hearing or participate in good faith on waiver grounds. Here where the plaintiff has the burden of proof, failure to participate in the hearing and comply with the arbitrator's orders for a pre-hearing statement with a list of exhibits and witnesses was a sufficient basis to find waiver and dismiss the appeal.
The court distinguished Lane v. City of Tempe, 202 Ariz. 306, 44 P.3d 986 (2002) where a defendant's failure to appear was found not a basis for dismissing the defendant's appeal because in Lane there was no showing the plaintiff was prejudiced by the nonappearance. In fact, in Lane the plaintiff recovered a satisfactory award at the hearing and was not hampered by the nonappearance. Similarly in Graf v. Whitaker, 192 Ariz. 403, 966 P.2d 1007 (App. 1998), the defendant's failure to attend the hearing was not grounds for dismissal of his appeal where the only issue at the arbitration was the amount of the damages. Here where plaintiff has the burden of proof and fails to even file a pre-hearing statement, the trial court is justified in dismissing plaintiff's appeal from arbitration.