dissenting.
¶ 14 I write to respectfully dissent from the majority opinion in this matter because I believe that in order for a trial court to dismiss a notice of appeal of an arbitration award, there must either be consent of the other party or the matter must be heard in a trial de novo.
¶ 15 In this case, Carlisle obtained an arbitration award of $20,283. After filing her Notice of Appeal, she subsequently filed a Notice of Dismissal of Appeal, and Petrosky objected. We all agree that there are no rules or decisions that govern as to whether a party can move to voluntarily dismiss an appeal from an arbitration award.
¶ 16 The majority relies on ARCAP 26 for guidance on how to take a voluntary dismissal of an appeal. The problem with using this rule is that ARCAP 26 does not apply to superior court; it only applies to appellate courts. ARCAP 1. This court has held that ARCAP “is inapposite in the context of compulsory arbitration, in which an ‘appeal’ is not a request for review but, rather, a demand for trial de novo____The rules governing civil appellate procedure simply do not transfer to the compulsory arbitration arena. Had the legislature and our supreme court intended otherwise,” the rules govern*327ing arbitration would parallel the ARCAP Rules. Valler v. Lee, 190 Ariz. 391, 393, 949 P.2d 51, 53 (App.1997). Because I agree that an appeal is a request for review while an appeal of an arbitration award is a demand for a trial de novo, I believe the guidance that the majority relies on is misplaced.
¶ 17 The majority states that Arizona Rule of Civil Procedure 76 and ARCAP 26 are relevant because Carlisle would expose herself to liability that includes, paying a deposit with the clerk of the superior court in the amount equivalent of one hearing day’s compensation of the arbitrator and potential penalties set forth in Rule 76(f). Supra ¶ 7. The majority overcharacterizes Carlisle’s liability. The equivalent of one hearing day’s compensation of the arbitrator would be seventy-five dollars or less. A.R.S. § 12-133(G) (2003). The “potential penalties” the majority references includes the trial court ordering the seventy-five dollars or less deposit to be used to pay for the costs and fees. Also on its own motion, the trial court could determine “that the imposition of the costs and fees would create such a substantial economic hardship as not be in the interests of justice,” ARCAP 76(f), which would relieve an appellant of paying costs and fees incurred by the appellee in connection with the appeal. AR-CAP 76(f). Furthermore, parties can and should consider this potential liability before filing a notice of appeal.
¶ 18 The majority also relies on Rule 41(a) for guidance in whether the trial court can dismiss an appeal. Rule 41(a) is also not appropriate to use because it applies to the voluntary dismissal of the entire proceeding. A dismissal of an entire proceeding is vastly different from the dismissal of a request for a trial de novo. Even if I might be inclined to look at the above stated rules for guidance, the holding in Schwab Sales v. GN Construction Co., 196 Ariz. 33, 992 P.2d 1128, does not allow it.
¶ 19 In Schwab Sales, a general contractor (GN) was sued by Schwab. The arbitrator found in favor of GN, but did not award GN its attorney’s fees. Id. at 35 ¶ 2, 992 P.2d at 1130. Schwab appealed the arbitrator’s award, but GN did not. The ease was tried de novo in the superior court, who again found for GN, but also awarded GN its attorney’s fees. Id. On appeal, Schwab argued that because GN did not appeal the award of attorney’s fees, the superior court was precluded from considering the issue because that portion of the arbitration award was an unappealable final order. Id. at 36 ¶ 6, 992 P.2d at 1130. This court upheld the trial court’s award of attorney’s fees to GN, and also held that when an appeal is filed after an arbitration, all issues of law and fact are revived on appeal, “as if the arbitration had never occurred.” Id. at ¶ 7 (emphasis added).
¶ 20 In Marracino v. Brandstetter, 14 Cal. App.4th 543, 547, 17 Cal.Rptr.2d 700, 702 (1993), the California court of appeals reached a similar conclusion. In that case, the court held that only one party need request a trial de novo within the statutory period and thus when one party timely requests a trial de novo, an adverse party who is also dissatisfied with the arbitrator’s award need take no action to preserve his rights. Id. If the party who requested a trial de novo was permitted to withdraw his request, that would create an impermissible risk of denying those adverse parties who relied on the original request their right to a trial. Id.
¶ 21 The majority’s holding creates the same risk that I believe is not a just result and for that reason I respectfully dissent.