Appellate courts check subject-matter jurisdiction, but sometimes we wonder whether discretion shouldn’t be advised.

Mrs. Plaintiff fell in a Wal-Mart store. She and her husband sued; the case went to compulsory arbitration. They won but wanted more and appealed. They filed their appeal bond – which the statute says is required “at the time of” and “as a condition of” the filing – more than a month later. The trial court denied Wal-Mart’s motion to dismiss the appeal for that reason but later granted it summary judgment on other grounds. Plaintiffs appealed from that. The late-bond problem was therefore not an issue on appeal but the Court of Appeals examined it as, apparently, a jurisdictional issue. On the merits, it affirms in a separate memorandum; it issues this opinion to address “the issue of whether the tardy filing of a cost bond on appeal from compulsory arbitration renders the appeal jurisdictionally defective.”

It holds that a late bond does not make the appeal defective.  Another part of the statute “allows the perfection of an appeal “within the time limited by rule of court.” And Rule 6 says that the court can extend times. “Harmonizing the above rules and statutes, the superior court had discretion to extend the time for perfecting an appeal from compulsory arbitration so the tardy payment of the cost bond is not a jurisdictional defect.”

But that other part of the statute (A.R.S. 12-133(H)) doesn’t talk about the “perfection of the appeal.” It says that you appeal an arbitration award “by filing, within the time limited by rule of court, a demand for trial de novo on law and fact.” That’s the notice of appeal. The very next section is the one that says “at the time of filing the demand for trial de novo, and as a condition of filing, the appellant shall deposit” the bond.  How could it be more clear that the 133(H) demand is conditioned on contemporaneous filing of the 133(I) bond? If the opinion is trying to “harmonize” different parts of the statute, it makes a very unconvincing case. In fact, they’ve already been “harmonized,” by Rule 77(b): “At the time of filing the notice of appeal, and as a condition of filing, the appellant shall deposit” the bond.

And what of Rule 6? Can it, or can Rule 77, somehow “harmonize” the statute into meaning something other than it says? That’s actually an interesting question but is not one this opinion comes anywhere near analyzing.

Instead, the court spends its time explaining why it was wrong in 1977 (Varga) to hold the opposite – that the statute means what it says and Rule 6 doesn’t change it. First, it says, Varga no longer applies because it was based on the rule that, in a regular appeal, the cost bond had to be filed with the notice, a rule that has since been changed. But that was based on rules, not statutes. Next, Varga was wrong because its analysis “was at odds” with the present court’s, which the opinion then restates. Remember, next time you’re in court, to argue that your opponent must be wrong because he’s “at odds” with you.

But the real problem here is: why bother? Why go out of your way to change established, 33-year-old precedent on an issue that hasn’t been briefed and that doesn’t change the outcome of the appeal? If you don’t like Varga, express reservations about it in your memo as an excuse to discuss substance and let people take the hint. But if you’re going to do this anyway, shouldn’t you be much more confident that the precedent is wrong than this court could possibly have been?

(link to opinion)