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Romer-Pollis v. Ada - 12/24/2009

Arizona Court of Appeals Division One Affirms Dismissal of Plaintiff’s Appeal of Arbitration Award When Plaintiff Failed to Comply with Arbiter’s Order To Submit a Pre-Hearing Written Statement and To Appear at Arbitration Hearing.

Romer-Pollis sued Ada after an automobile accident and the case went to compulsory arbitration.  Each party was ordered to submit a written pre-hearing statement, but only the defendant, Ada, submitted one.  In addition, Romer-Pollis did not appear at the arbitration hearing, although her attorney attended via telephone, and she offered no exhibits or other information at the hearing.  After the arbiter awarded Romer-Pollis $4,000, she appealed to the superior court, seeking a new trial.  The superior court dismissed the appeal, finding that Romer-Pollis did not participate in arbitration in good faith.  Romer-Pollis appealed the dismissal to the Court of Appeals.

In a unanimous opinion, the Court of Appeals affirmed.  The rules governing compulsory arbitration state that a party’s “[f]ailure to appear at a hearing or to participate in good faith . . . shall constitute a waiver of the right to appeal absent a showing of good cause.”  Ariz. R. Civ. P. 75(h).  Failure to appear at a hearing, by itself, may not justify dismissal of an appeal if the party’s testimony is not pertinent to the issues determined at the hearing.

First, the Court held that the superior court had dismissed her appeal not only because she failed to appear at the hearing, but also because she failed to participate in good faith.  Second, the Court held that the record supported a finding that Romer-Pollis did not participate in good faith because she failed to comply with the arbiter’s order to appear at the hearing and to submit a prehearing statement, and she made no effort to offer a “good reason” for her failure to comply. 

Finally, the Court held that even if the lower court had relied on her failure to appear personally at the hearing, it would not have been error.  Because Romer-Pollis had the burden to prove her damages, which included damages for continued pain and suffering, her personal testimony would have been pertinent to the proof of damages.

Judge Portley authored the opinion; Judges Johnsen and Barker concurred.

Posted by: Joseph Roth

Posted On: 1/8/2010