Suppeland v. Nilz

RICHMOND, Judge,

dissenting:

I respectfully dissent.

Statutory rules accompanying newly created rights are deemed to be rules of court only until modified or suspended by rules promulgated by the supreme court. State ex rel. Purcell v. Superior Court, 107 Ariz. 224, 485 P.2d 549 (1971). To give an arbitration award the effect of a judgment “unless reversed on appeal,” A.R.S. § 12-133(c), is inconsistent with an appeal de novo of a civil case, which will provide a new determination that may neither affirm nor reverse the award. On the other hand, conditioning the legal effect of the award on the absence of an appeal, 17A A.R.S. Uniform Rules of Procedure for Arbitration, rule 5(c), is consistent with a statutory scheme of arbitration where the amount in controversy is limited. Cf. Lee v. Cel-Pek Industries, Inc., 251 Pa.Super. 568, 380 A.2d 1243 (1977) (reversing dismissal of appeal de novo from arbitration award where defendant/appellant failed to appear for conciliation hearing and trial). To comport with the right to a jury trial under Art. 2, § 23 of the Arizona Constitution, the arbitration award is subject to the consent of both parties. An appeal by either should avoid the award.

Once the case was returned to superior court with a request that it be set for trial, the plaintiff was the proponent who was responsible for expeditiously prosecuting his case under the rule of Thompson v. Mecey, supra, cited in the majority opinion. The record reflects that the plaintiff never received notice the case had been placed on the inactive calendar. Under those circumstances the case should not have been dismissed for lack of prosecution. That it was should not deprive defendant of his right to a superior court trial de novo. I would reverse.