Riendeau v. Wal-Mart Stores, Inc., __ Ariz. Adv. Rep.__ , 1 CA-CV 090202 (App., Div. I, February 25, 2010) (J. Kessler)
FAILURE TO FILE COST BOND BEFORE APPEALING FROM MANDATORY ARBITRATION DOES NOT RENDER APPEAL DEFECTIVE
Plaintiff wife sustained a slip and fall injury in defendant store. Wife was awarded $3,000 in mandatory arbitration but plaintiff husband received nothing on his loss of consortium claim. Husband and wife appealed but failed to timely post a cost bond. Trial court denied defendant's motion to strike the appeal for the tardy filing. Trial court later issued judgment against the plaintiffs and the plaintiffs then appealed claiming their appeal to superior court should have been dismissed for failing to timely file the cost bond.
The Court of Appeals held the late filing of a cost bond in support of an appeal from mandatory arbitration does not destroy jurisdiction in the Superior Court to hear the appeal because the Superior Court has discretion to extend the time for filing of the bond. ARS sec. 12-133 (H) and Rule 6 (b) Ariz. Rules of Civil Appellate Procedure. In so holding the court expressly overruled Varga v. Heburn, 116 Ariz. 539, 570 P.2d 226 (App. 1977).