¶ 1 Victoria Romer-Pollis (“Plaintiff’) challenges the dismissal of her appeal from an arbitration award. Specifically, she argues that the trial court abused its discretion when it found that she waived her right to appeal by virtue of her conduct during the arbitration proceedings. For the following reasons, we affirm the dismissal.
FACTS AND PROCEDURAL HISTORY
¶ 2 Plaintiff was involved in an automobile accident and sued Anthony Ada (“Defendant”) for damages. The trial court referred the case to compulsory arbitration pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-133(A)(2) (2003) and Arizona Rule of Civil Procedure 72(b).
¶ 3 The arbiter scheduled the hearing and ordered the parties to “submit a written prehearing statement ... not less than Fifteen (15) days prior to the ... hearing date.” The arbiter directed that each party’s statement include a list of witnesses, a list of exhibits, a brief statement about the party’s claims/defenses, and a representation that the party had exchanged all exhibits prior to the hearing. Defendant complied with the arbitration order. There is no record, however, that Plaintiff submitted a prehearing statement. Additionally, she did not personally appear at the hearing, although her attorney participated telephonically.
¶ 4 After the hearing, the arbiter awarded Plaintiff $4,000 plus taxable costs. She appealed the award and requested a trial de novo.
¶ 5 Defendant moved to dismiss the appeal and argued that Plaintiff violated the requirements of Arizona Rule of Civil Procedure 75(h) because she: (1) failed to appear at the hearing; and (2) failed to “participate [ ] in [the] hearing in good faith.” He specifically argued that “Plaintiffs counsel offered no exhibits at [the] hearing, and all information provided to the Arbitrator by way of timely memoranda (Plaintiff failed to file a memorandum as requested by the Arbitrator), exhibits, etc., were all provided by the defense.” Plaintiff responded to both arguments and did not dispute her absence or her failure to submit the requested prehearing memorandum. She argued, however, that her “testimony would not have added or subtracted from the decision” and that “the parties submitted joint exhibits at the ... hearing and the medical bills were stipulated to by counsel.”
¶ 6 At oral argument, Defendant avowed that: (1) Plaintiff did not file any memorandum containing a list of witnesses, exhibits, or Plaintiffs position; (2) the defense secured and submitted all of Plaintiffs medical records; and (3) the day before the arbitration hearing, Plaintiffs counsel indicated that Plaintiff would not be testifying at the hearing. Defendant argued, in support of his motion to dismiss, that Plaintiff “flaunted
¶ 7 The trial court subsequently concluded that Plaintiff “failed to participate in good faith with the scheduled Arbitration Hearing” and dismissed her appeal. Plaintiff appeals, and we have jurisdiction pursuant to AR.S. §§ 12-120.21 and -2101(B) (2003).
DISCUSSION
¶ 8 A party participating in arbitration pursuant to AR.S. § 12-133(H) may appeal an arbitration award to the superior court if the party “appear[ed] and participate[d] in the arbitration proceedings.” A’iz. R. Civ. P. 77(a). Rule 75(h) 1 provides, however, that the “[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.”
¶ 9 The “participation” and “appearance” requirements of Rules 75(h) and 77(a) “require more than minimal participation in arbitration proceedings; both require a party to participate in good faith in order to satisfy the spirit of the arbitration laws.”
Graf v. Whitaker,
192 A’iz. 403, 407-08, ¶ 18,
¶ 10 In
Lane,
our supreme court held that, although a personal appearance by a party is not always required, “[i]n some situations, a personal appearance may be necessary.”
Id.
at 309, ¶ 17,
¶ 11 Similarly, in
Graf v. Whitaker,
another automobile negligence action, we held that a personal appearance by a defendant was not required because the only contested issue at the arbitration hearing was damages, and because “the record [does not] indicate[] that [the defendant] had relevant testimony to offer.”
¶ 12 We review a trial court’s conclusion that a party failed to participate in good faith in an arbitration proceeding for an abuse of discretion.
See Lane v. City of Tempe,
¶ 13 Plaintiff, relying on Lane, argues that the trial court abused its discretion when it dismissed her appeal based on the fact that she did not personally appear at the arbitration hearing. Defendant disputes Plaintiffs characterization of the court’s ruling and argues that “[a] careful reading of the ... court’s minute entry reveals that Plaintiffs appeal was dismissed for a completely different reason: ‘that Plaintiff failed to participate in good faith with the scheduled Arbitration Hearing.’ ”
¶ 14 The trial court dismissed Plaintiffs appeal because she “failed to participate in good faith with the scheduled Arbitration Hearing.” The court, however, did not specifically mention Plaintiffs personal absence at the arbitration hearing as the basis for its finding. Plaintiff argues, however, that the motion to dismiss “was solely based upon Plaintiffs failure to personally appear,” and the ruling must have been based upon that argument. She mischaraeterizes Defendant’s motion to dismiss.
¶ 15 In his motion, Defendant argued to the trial court that dismissal was warranted because Plaintiff had failed to personally appear at the hearing and had failed to “partieipate[] in [the] hearing in good faith.” He specifically asserted that Plaintiff had failed to comply with the arbiter’s requirements. Plaintiff responded to both arguments, and stated that she “participated in good faith in th[e] [arbitration]” and that her personal appearance was unnecessary. Both arguments were again raised by Defendant during oral argument.
¶ 16 Based on the arguments made to the trial court, and because the court found that Plaintiff did not participate in the arbitration in good faith, it is clear that, unlike in Lane, the dismissal was not solely based on her failure to personally appear.
¶ 17 A failure to comply with the arbiter’s basic requests for documentation without just cause may constitute a lack of good faith participation in the process and may frustrate the spirit and purpose of compulsory arbitration.
See Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., Inc.,
¶ 18 Here, once the matter was referred to arbitration, both parties were required to comply with the arbiter’s orders. The trial court was advised, by avowal, that Plaintiff failed to comply with the arbiter’s order and did not personally attend the hearing. Plaintiff did not challenge the fact that, in violation of the arbiter’s order, she failed to provide a prehearing statement and a list of witnesses and exhibits, nor did she demonstrate by avowal, offer of proof, affidavit, or other testimony that she had good reason for her failure to comply with the order. Because the record supports the finding that Plaintiff failed to comply with the arbitration order, the record supports the court’s stated reason that she failed to participate in the arbitration proceedings in good faith. Accordingly, the court did not abuse its discretion by dismissing her appeal.
¶ 19 Plaintiff argues that she did not need to personally appear at the arbitration hearing. Even if the trial court relied in part upon her failure to personally attend the arbitration hearing, we cannot say that the court’s consideration of that fact would be an abuse of discretion.
¶20 The only contested arbitration issue, like in
Graf,
was the nature and amount of
¶ 21 Unlike in
Lane
and
Graf,
where the defendants in automobile negligence actions failed to personally appear at arbitration hearings, Plaintiff had the burden to prove her damages. Although she argues that if Defendant wanted her to testify at the hearing, he should have objected and could “have used her deposition or had her subpoenaed to appear,” she does not dispute that she had the burden of proof. Unlike in
Lane,
where our supreme court found that a plaintiffs failure to secure a defendant’s presence mitigated against the conclusion that the non-appearing defendant failed to participate in good faith,
Lane,
¶ 22 Here, given the nature of the damages in the complaint, and the burden of proof, the record supports the conclusion that Plaintiffs testimony was pertinent, despite her belief that her “testimony would have meant virtually nothing.” 2 Notably, in his award, the arbiter stated that, based on the evidence presented, he “was unable to discern any clear, or even blurry, line of demarcation between Plaintiffs pre-accident health problems and her post-accident health problems.” Certainly Plaintiffs testimony would have been helpful to her pain and suffering claim as well as her claim that her damages would continue into the future. Accordingly, to the extent that the trial court considered Plaintiffs failure to personally appear as a basis for its finding that Plaintiff failed to participate in the arbitration proceedings in good faith, the court did not abuse its discretion.
CONCLUSION
¶ 23 For the foregoing reasons, we affirm the dismissal of Plaintiffs appeal.
Notes
. Although Rule 75 was added on September 5, 2007, and effective January 1, 2008, the current language of subsection 75(h) is essentially the same as the former Rule 74(k) and Rule 4(j).
See Lane v. City of Tempe,
. In her response to the motion to dismiss, Plaintiff claims that "her testimony would not have added or subtracted from the decision.” Plaintiff, however, does not explain on appeal, nor did she explain to the trial court, why her testimony on the issue of damages was unnecessary.