Graf v. Whitaker

In Graf v. Whitaker, Graf v. Whitaker, 192 Ariz. 403, 407-08, P 18, 966 P.2d 1007, 1011-12 (App. 1998) another automobile negligence action, the Court 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." 192 Ariz. at 408, P 20, 966 P.2d at 1012. Thus, "whether a party need appear personally or may leave appearance and participation entirely to counsel depends on the pertinence of that party's testimony to the issues to be determined at the hearing." Sabori v. Kuhn, 199 Ariz. 330, 332, P 7, 18 P.3d 124, 126 (App. 2001). The Court found the defendant's personal noncompliance with discovery a valid basis for the trial court's conclusion that she had failed to appear and participate in the proceedings as Uniform Rule 7(a), now Civil Rule 76(a), required. Id. at 408, P 19, 966 P.2d at 1012. The Court also found, however, that the trial court had inappropriately rested its decision in part upon defendant's nonappearance at a hearing at which only plaintiff's damages were contested. The Court stated: The superior court, however, did not rest its finding of a Uniform Rule 7(a) violation entirely upon Whitaker's discovery violations and obstructive attitude and conduct. The court also rested its finding in part upon Whitaker's non-appearance at the arbitration damage hearing. In this respect, in our opinion, the trial court erred. Graf has not claimed, nor does the record indicate, that Whitaker had relevant testimony to offer at the damage hearing; nor has Graf claimed, nor does the record indicate, that Whitaker obstructed the conduct of the damage hearing to any degree by failing to accompany her lawyer to that hearing. In the absence of any showing that Whitaker did not adequately participate in the damage hearing through an appearance by counsel, we cannot agree that her absence from the damage hearing was properly considered by the superior court in deciding whether she had violated Uniform Rule 7(a). Id. at 408, P 20, 966 P.2d at 1012.