NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TIMOTHY R. WRIGHT, Plaintiff/Appellee,

v.

AHMAD WALI MAILATYAR, et al., Defendants/Appellants.

No. 1 CA-CV 23-0046 

Appeal from the Superior Court in Maricopa County

No. CV2020-016778

The Honorable Sara J. Agne, Judge

DISMISSED IN PART; AFFIRMED IN PART

COUNSEL

Dorsey & Whitney LLP, Phoenix

By Isaac M. Gabriel, Julie P. Ibrahim 

Counsel for Plaintiff/Appellee

Law Office of Timothy M. Collier PLLC, Phoenix

By Timothy M. Collier

Counsel for Defendants/Appellants

FILED 12-21-2023
WRIGHT v. MAILATYAR, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 Defendants Ahmad and Edyta Mailatyar challenge a final 

judgment, entered after a jury trial, awarding damages and permanent 

injunctive relief to plaintiff Timothy R. Wright on his defamation claims.

For the reasons set forth below, the Mailatyars’ appeal is dismissed in part 

for lack of appellate jurisdiction, and the judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶2 Wright owns and operates a residential rental business in 

Tempe. Ahmad Wali Mailatyar (“Wali”) provided accounting and tax 

services for Wright from 2010 through early 2013.

¶3 In 2013, Wright sued the Mailatyars and their company, 

Pandora Holdings LLC, alleging they had improperly taken title to three of 

Wright’s rental properties and refused to reconvey them. Wright prevailed

and the three properties were titled in Wright’s favor. Wright also was 

awarded more than $260,000 in compensatory and punitive damages, 

attorneys’ fees and costs. Wright later obtained writs of execution on two 

other properties the Mailatyars owned, called the New River Property and 

the Journey Lane Property. Wright submitted successful credit bids on both 

properties at sheriff’s sales and assigned his rights to a third party.

¶4 In January 2019, before either of the sheriff’s sales, Wali 

created a YouTube channel called “Tiered Justice.” On July 7, 2020, Wali

posted a video on the channel titled “Episode 10: The Burglary Episode,”

where he accused Wright of burglarizing the New River Property. Wali also 

posted a link to the video, hosted on tieredjustice.com, on an existing 

Facebook group. Wali often posted on the Facebook group, asserting that 

Wright “stole” the New River and Journey Lane Properties and “scammed” 

him. Wali also created a website, where he posted links to several videos

and, in an explainer for one of the videos, stated that Wright “burglarized 

our house in October 2018.”
WRIGHT v. MAILATYAR, et al.

Decision of the Court

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¶5 Wright sued the Mailatyars in December 2020, alleging

defamation and defamation per se, among other claims. Wright sought

damages and a permanent injunction that would: (1) require the Mailatyars 

to “remove any videos, websites, or internet posts/comments that contain 

false, misleading, or defamatory statements relating to Mr. Wright and his 

business, including without limitation, the Youtube Channel videos, 

Facebook Group, and Website;” and (2) bar the Mailatyars “from 

communicating, publishing, or disseminating any further false, misleading, 

or defamatory statements relating to Mr. Wright and his business.”

¶6 Both sides moved for partial summary judgment. The court 

granted Wright’s motion in part, finding that “the statements that Plaintiff 

burglarized Defendants’ house” were defamatory per se. The case 

proceeded to a jury trial. At the close of Wright’s case-in-chief, the 

Mailatyars orally moved for judgment as a matter of law. The court denied 

that motion, quoting Arizona Rule of Civil Procedure (Rule) 50(a) and 50(b).

The court issued a minute entry confirming it had denied the Mailatyars’ 

motion under “Rules 50(a), (b).”

¶7 After deliberation, the jury awarded Wright $125,000 in 

compensatory damages and $20,000 in punitive damages on the burglary 

statements. The jury also found the statements that Wright “stole” or 

“scammed” the Mailatyars out of the New River and Journey Lane 

properties were defamatory per se and awarded an additional $100,000 in 

compensatory damages and an additional $20,000 in punitive damages.

¶8 After the jury returned its verdict, the parties and the superior 

court discussed how to address Wright’s permanent injunction request:

[Mailatyars’ Counsel]: And Your Honor, as far 

as the permanent injunction, do you want us to 

brief a little more or how do you want us to 

handle that? Or are you just going to make a 

decision?

THE COURT: Are the parties both interested in 

briefing?

[Wright’s Counsel]: No. I’m not interested in 

briefing, no.

THE COURT: Okay. I feel I have enough 

information.
WRIGHT v. MAILATYAR, et al.

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[Mailatyars’ Counsel]: Okay.

THE COURT: So I will take a proposed form of 

judgment though and any objections to it.

[Wright’s Counsel]: On the [permanent 

injunction]?

THE COURT: Right. Can be briefed that way 

under Rule 58 procedures.

[Mailatyars’ Counsel]: Okay.

Wright submitted a proposed form of judgment. The Mailatyars objected, 

contending “the scope of the permanent injunction is overly broad” and 

requesting “five . . . business days after the ruling is made by this Court on 

Plaintiff’s claim for a permanent injunction, to more fully object . . . if 

necessary.”

¶9 The court entered a final judgment that included the 

following injunction:

[The Mailatyars] . . . shall permanently remove and not 

republish any videos, websites, or internet posts/comments 

that the jury found to contain defamatory statements relating 

to Mr. Wright and his business, including without limitation, 

the following:

a. Each video uploaded on the Youtube channel named 

“Tiered Justice”;

b. Youtube Video entitled “Episode 10 – The Burglary 

Episode” and any clips or portions thereof which may 

have been separately disseminated or posted on other 

websites;

c. All posts on Facebook or any other website accusing 

Mr. Wright of burglary or any other felony;

d. Facebook post by “Wali Mailatyar” dated January 

15, 2020 relating to the [three properties at issue in the 

2013 case];
WRIGHT v. MAILATYAR, et al.

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e. Facebook post by “Wali Mailatyar” dated July 6, 

2020 relating to [the New River Property]; 

f. Facebook post by “Wali Mailatyar” dated July 6, 2020 

relating to [the Journey Lane property]; and 

g. Website [publicly] available at 

www.tempeslumlord.com and all statements thereon 

that are substantially similar or duplicative of the 

statements above.

The court denied the Mailatyars’ request for more time to raise additional 

objections. The Mailatyars filed a timely notice of appeal following the entry 

of the final judgment. This court has jurisdiction under A.R.S. § 12-

2101(A)(1) (2023).

1

DISCUSSION

I. A.R.S. § 12-2102(C) Limits the Scope of Review in This Appeal.

¶10 This court’s “appellate jurisdiction is limited by statute.”

Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 182 ¶ 6 (App. 

2011). Generally, in cases tried to a jury, this court lacks jurisdiction to 

consider “the sufficiency of the evidence to sustain the verdict or judgment 

. . . unless a motion for a new trial was made.” A.R.S. § 12-2102(C). While

the Mailatyars orally moved for judgment as a matter of law at the close of 

Wright’s case-in-chief, they did not renew that motion following the verdict 

under Rule 50(b) or move for a new trial under Rule 59. Typically, a Rule 

50(a) motion does not satisfy § 12-2102(C). Williams v. King, 248 Ariz. 311, 

317-18 ¶¶ 30-31 (App. 2020) (citing Marquette, 227 Ariz. at 183 ¶ 13); see also

Ariz. R. Civ. P. 50(a)(1) (governing motions filed once “a party has been 

fully heard on an issue during a jury trial.”).

¶11 At this court’s direction, both sides provided supplemental 

briefs addressing the impact of § 12-2102(C). In their supplemental brief, 

the Mailatyars rely on Marquette, which noted that “[f]ederal cases have 

recognized an exception to the requirement to file a Federal Rule [of Civil 

Procedure] 50(b) motion when the trial court indicates such a motion is 

unnecessary.” 227 Ariz. at 183, ¶ 16. For that proposition, Marquette cited

Best Brand Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578 (2d Cir. 1987).

In Best Brand, the federal court held the plaintiff’s failure to renew its Rule 

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

6

50(a) motion under Rule 50(b) did not preclude review of the sufficiency of 

the evidence on appeal because (1) “the trial judge indicated that further 

motion practice was not needed” and (2) “the party opposing the motion . 

. . could not reasonably have thought, during presentation of the movant’s 

defense case, that the movant’s ‘initial view of the insufficiency of the 

evidence had been overcome and there was no need to produce anything 

more in order to avoid the risk of judgment” as a matter of law. 842 F.2d at 

587 (citation omitted).

¶12 Best Brand is distinguishable. The federal doctrine precluding 

appellate review of the sufficiency of the evidence absent a post-verdict 

motion is rule-based and is grounded in Federal Rule 50(b) and principles 

of fairness. See Unitherm Food Systems, Inc. v. Swift-Ekrich, Inc., 546 U.S. 394, 

401 (2006) (“[T]he ‘requirement of a timely application for judgment after 

verdict is not an idle motion’ because it ‘is . . . an essential part of the rule, 

firmly grounded in principles of fairness.’”) (quoting Johnson v. New York, 

N.H. & H.R. Co., 344 U.S. 48, 53 (1952)). In Arizona, the doctrine is statutory, 

and this court only has that jurisdiction given to it by statute. Campbell v.

Arnold, 121 Ariz. 370, 371 (1979).

¶13 Section 12-2102(C) does not exempt cases in which the 

superior court states or implies that post-verdict motions would be 

unnecessary or futile. If the Legislature intended to create such an 

exemption, it would have done so. See, e.g., Backus v. State, 220 Ariz. 101, 106 

¶ 22 (2009). Indeed, this court recently held that an appellant must file a 

post-verdict motion even if it might be futile to preserve challenges to the 

sufficiency of the evidence because “[a] civil appeal is a statutory privilege 

and appellants must strictly comply with statutory and rule requirements.”

Williams, 248 Ariz. at 317 ¶ 31.

¶14 For these reasons, this court lacks appellate jurisdiction over 

those portions of the Mailatyars’ appeal that challenge the sufficiency of the 

evidence supporting the verdict or judgment. Marquette, 227 Ariz. at 183-

84, ¶¶ 13, 22; see also Gabriel v. Murphy, 4 Ariz. App. 440, 442 (1966) (“[A]

motion for new trial must be made before the scope of the appeal may be 

enlarged to include the sufficiency of the evidence to sustain the verdict or 

judgment.”). The Mailatyars raise four arguments barred by § 12-2102(C).

¶15 First, the Mailatyars contend the jury did not follow the jury 

instructions for defamation and defamation per se. They argue the jury 

failed to consider (1) that none of the statements at issue “allege[d] a crime 

and/or impute[d] that [Wright] is unfit to conduct his business as a 

landlord” or (2) that the statements were not actionable because they were 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

7

either true or hyperbole. As noted above, the jury found the statements 

were defamatory per se. The Mailatyars cannot now argue the jury lacked 

sufficient evidence to reach that conclusion.

¶16 Second, the Mailatyars contend Wright did not prove 

damages, arguing he “presented absolutely nothing in any form of an 

amount. Not a single revenue report, not a single witness, not a single credit 

application from a prospective renter who later decided not to rent, specific 

houses that were not rented, not a single name.” This argument challenges

the sufficiency of the evidence supporting the jury’s damages awards and 

is barred.

¶17 Third, the Mailatyars contend the jury did not apply the 

correct standard in awarding punitive damages. Specifically, they contend 

Wright presented no evidence to show they “knew that the statements 

regarding the alleged burglary, or the statements regarding their properties 

being stolen or scammed out of, were false or acted in reckless disregard of 

whether the statement was true or false.” They also contend the jury “failed 

to take into consideration what [they] experienced and knew.” These are 

challenges to the sufficiency of the evidence supporting the verdict and are 

barred.

¶18 Fourth, and finally, the Mailatyars contend the jury failed to 

follow the jury instructions in awarding damages. This argument hinges on 

their contention that Wright failed to prove damages. Section 12-2102(C) 

bars considering these arguments.

II. The Mailatyars’ Challenges to the Permanent Injunction Can Be 

Considered on Appeal.

¶19 The Mailatyars raise three challenges to the permanent 

injunction: (1) the court entered it without additional briefing, (2) Wright 

had an adequate remedy at law and (3) its terms are overbroad. It is far less 

clear whether § 12-2102(C) bars consideration of these issues.

¶20 While the permanent injunction, as an equitable remedy, was 

not part of the jury verdict, it was in the final judgment. Section 12-2102(C),

therefore, would seem to apply. But this court has held that “in an equity 

action in which the trial court sits with an advisory jury, a motion for a new

trial is not a condition precedent to the vesting of jurisdiction in this court 

to determine the appeal on the merits.” Richardson v. Casey, 6 Ariz. App. 

141, 142–43 (1967). Furthermore, § 12-2102(C) does not bar appellate review 

if “the court made factual determinations sitting without a jury.” S & R 

Properties v. Maricopa Cnty., 178 Ariz. 491, 504 (App. 1993).
WRIGHT v. MAILATYAR, et al.

Decision of the Court

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¶21 The superior court did not use an advisory jury on Wright’s 

injunctive relief request, but it appears the court relied on the jury’s liability 

verdict in determining whether to grant a permanent injunction. And 

neither side disputes that whether to grant an injunction and the scope of 

any such injunction was an equitable remedy for the court (not the jury) to 

decide. See A.R.S. § 12-1801 (authorizing “judges of the superior court” to 

grant injunctive relief); Ahwatukee Custom Estates Management Ass’n, Inc. v. 

Turner, 196 Ariz. 631, 635 ¶ 9 (App. 2000) (“An injunction is an equitable 

remedy which allows the court to structure the remedy so as to promote 

equity between the parties.”) (citation omitted). In doing so, the superior

court had to consider the trial evidence to determine whether Wright met 

the equitable criteria for injunctive relief. See, e.g., Ahwatukee Custom Estates

Mgmt. Ass’n, Inc. v. Turner, 196 Ariz. 631, 635 ¶ 9 (App. 2000). The court,

therefore, made fact determinations independent of the jury. S & R 

Properties, 178 Ariz. at 504. Thus, section 12-2102(C) does not preclude 

appellate review of Mailatyars’ challenges to the permanent injunction.

III. The Mailatyars’ Challenges to the Permanent Injunction Fail.

¶22 A decision to grant injunctive relief is reviewed for an abuse 

of discretion. Cnty. of Cochise v. Faria, 221 Ariz. 619, 621 ¶ 6 (App. 2009).

¶23 The Mailatyars first contend the court erred by granting the 

permanent injunction without receiving additional briefing. They cite no 

authority suggesting the court had to grant a request for additional briefing, 

and this court is aware of none. Accordingly, this argument fails.

¶24 The Mailatyars also contend injunctive relief was improper 

because the jury awarded damages. Prevailing on a damages claim does not 

automatically bar injunctive relief. IB Prop. Holdings, LLC v. Rancho Del Mar

Apartments Ltd. P’ship, 228 Ariz. 61, 65 ¶ 10 (App. 2011). Indeed, “even if 

some damages may be proved and recovered, injunctive relief may be 

appropriate if those damages are inadequate to address the full harm 

suffered.” Id. at 65 ¶ 11. Here, the court found the damages award was 

“insufficient to make [Wright] whole, particularly if [the Mailatyars] are 

permitted to persist in publishing all the same statements and content that 

the jury found defamatory per se.” Thus, the Mailatyars’ contention that 

“obtaining a monetary award means [Wright] had an adequate remedy at 

law” fails.

¶25 The Mailatyars contend the permanent injunction is 

overbroad. When interpreting a judgment, this court seeks to adopt a 

construction that supports it, rather than destroys it. Title Ins. Co. of 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

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Minnesota v. Acumen Trading Co., Inc., 121 Ariz. 525, 526 (1979). Because the 

injunction bars the Mailatyars from “republishing” certain statements, it 

may be a prior restraint on speech. See Alexander v. United States, 509 U.S. 

544, 550 (1993) (“permanent injunctions . . . are classic examples of prior 

restraints”). Prior restraints are “the most serious and least tolerable 

infringement on First Amendment rights.” Phoenix Newspapers, Inc. v. Otis, 

243 Ariz. 491, 495 ¶ 13 (App. 2018) (citation omitted). Such orders are 

subject to a heavy presumption against constitutional validity and are 

proper only if narrowly tailored to achieve a compelling state interest. Id. at 

495-96 ¶ 14.

¶26 The Mailatyars first challenge the requirement that they 

“permanently remove and not republish any videos, websites, or internet 

posts/comments that the jury found to contain defamatory statements 

relating to Mr. Wright and his business.” The statements the jury found 

defamatory are listed in the verdict forms, and the Mailatyars concede that 

“the actual statements found to be defamatory on any platform are fair 

game to be removed.” Thus, this provision does not, as the Mailatyars now 

contend, “require [that] Facebook be permanently removed.”

¶27 The Mailatyars also contend subparagraph (a) is overbroad 

because it obligates them to remove all videos on “Tiered Justice” when 

only one contained “statements found to be defamatory in this case” and 

“some content did not even have to do with [Wright].” Again, the initial 

paragraph modifying subparagraph (a) only requires them to remove 

“videos, websites, or internet posts/comments that the jury found to 

contain defamatory statements.” If there are videos on “Tiered Justice” that 

do not contain such statements, those videos would not fall within the scope 

of the injunction.

¶28 The Mailatyars also contend subparagraph (g) is overbroad.

At first glance, this subparagraph appears to require a takedown of the

website and the removal of “all statements thereon that are substantially 

similar or duplicative of the statements above.” But if the court directed the 

Mailatyars to take down the entire website, there would be no reason to 

separately direct them to take down particular statements that appear on 

the site. Thus, subparagraph (g), like subparagraph (a), applies to “videos, 

websites, or internet posts/comments that the jury found to contain 

defamatory statements relating to Mr. Wright and his business.” Thus, it 

only requires the Mailatyars to remove any such statements and 

“substantially similar or duplicative” statements that appear on the 

website. See Paxton v. McDonald, 72 Ariz. 378, 382-83 (1951) (“Where a 

judgment is susceptible of two interpretations, that one will be adopted 
WRIGHT v. MAILATYAR, et al.

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which renders it the more reasonable, effective, and conclusive and which 

makes the judgment harmonize with the facts and law of the case and be 

such as ought to have been rendered.”). For these reasons, the Mailatyars’ 

contention that the permanent injunction is overbroad fails.

IV. The Mailatyars’ Evidentiary Challenges Fail.

¶29 The Mailatyars also challenge several evidentiary rulings.

Section 12-2102(C) does not bar review of evidentiary rulings “regardless 

of whether they were presented to the lower court in a motion for a new 

trial.” Marquette, 227 Ariz. at 182 ¶ 7 (citation omitted). This court, however, 

will not disturb the superior court’s rulings absent an abuse of discretion

resulting in prejudice. Golonka v. Gen. Motors Corp., 204 Ariz. 575, 580 ¶ 9 

(App. 2003).

A. Pandora Holdings Case Evidence.

¶30 The Mailatyars broadly argue the superior court erred in 

admitting evidence from the Pandora Holdings case. They correctly note 

that Wright moved in limine to preclude them from “disputing the 

underlying findings of facts and conclusions of law” in the Pandora 

Holdings case, or “asserting that any post-Judgment execution, including 

sheriff’s sales, were legally improper.” But they opposed that motion, 

arguing they should be allowed to “testify that they do not agree with those 

outcomes, and the reasons why.”

¶31 The court denied Wright’s motion in limine “without 

prejudice to specific trial rulings.” It thus did not preclude any Pandora 

Holdings evidence before trial. And while the Mailatyars contend Wright 

“was able to discuss all aspect[s] of the [Pandora Holdings] case and enter 

documents into evidence over objection,” they did not object to any of the 

evidence they cite in their opening brief for this proposition. See State v.

Lichon, 163 Ariz. 186, 189 (App. 1989) (“Counsel may not sit back and allow 

error to occur when a prompt objection might have allowed the court to 

cure the problem.”); Ariz. R. Evid. 103(a)(1) (requiring timely, specific 

objection to preserve a claim of error in admitting evidence).

¶32 The Mailatyars also contend the jury’s damages awards were 

“almost identical” to damages awarded in the Pandora Holdings case and 

a related bankruptcy case, speculating that the jury simply re-awarded 

those damages. Absent evidence of passion or prejudice, neither of which 

the Mailatyars attempt to show, the jury’s damages awards will not be 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

11

disturbed on appeal. See Starkins v. Bateman, 150 Ariz. 537, 548 (App. 1986) 

(citing Larriva v. Widmer, 101 Ariz. 1, 7 (1966)).

B. Trial Exhibits 22, 26, 34-37.

¶33 The Mailatyars contend Wright improperly revoked a 

stipulation to admit trial Exhibits 22, 26 and 34-37, none of which were 

admitted at trial. They cite an email from Wright’s counsel to the court,

notifying it that the parties had stipulated to these exhibits, among others, 

which the court then approved. Wright’s counsel later emailed, stating that 

there was a “miscommunication” and clarified that “only exhibits 3, 4, 6, 

12, 21, 23-29 and 31-32 are stipulated to for the parties’ respective cases in 

chief.” The Mailatyars’ counsel maintained there was no 

miscommunication.

¶34 The superior court, stating that it did not have “the emails 

evincing a Rule 80(a)(1) agreement of counsel,” vacated its approval of the 

stipulation but invited the parties to “submit additional information 

regarding any agreement reached.” Almost immediately, the Mailatyars’ 

counsel responded that he was “going to bring the attached to Court this 

morning for your review to see if the emails therein constitute a binding 

agreement pursuant to Rule 80(a).” The copy of this email in the record, 

however, does not have any attachments. The Mailatyars do not point to

where the attachments can be found in the record; they instead cite an 

excerpt of the discussion among counsel and the court before the first day 

of trial. The superior court reviewed the attachments and determined that

[t]he Parties’ emails both in this string and 

among themselves differ as to what was being 

stipulated, and what was originally submitted 

to the Court as the Parties’ stipulation appears 

to be actually only a copy and paste of just [the 

Mailatyars’] proposed stipulation.

On that basis, the court determined there was no “meeting of the minds 

sufficient to hold [Wright] to a Rule 80(a) agreement” as to the above-listed 

exhibits. Because the record does not contain the attachments the court 

reviewed, there is no basis to conclude the court erred in this conclusion, 

and, as a result, vacating its approval of any purported stipulation. See Baker 

v. Baker, 183 Ariz. 70, 73 (App. 1995) (“When a party fails to include 

necessary items, we assume they would support the court’s findings and 

conclusions.”).
WRIGHT v. MAILATYAR, et al.

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C. Victoria Perez and Alexx Canale Testimony.

¶35 The Mailatyars challenge the exclusion of testimony by 

Victoria Perez and Alexx Canale. This court reviews these exclusionary 

rulings for an abuse of discretion. Zimmerman v. Shakman, 204 Ariz. 231, 235, 

¶ 10 (App. 2003).

1. Victoria Perez.

¶36 The court excluded Perez’ testimony based on nondisclosure.

The court must exclude a witness who is not timely disclosed absent a 

showing of either good cause or that the failure to disclose caused no 

prejudice. Ariz. R. Civ. P. 37(c); Jones v. Buchanan, 177 Ariz. 410, 414 (App. 

1993).

¶37 The Mailatyars apparently first disclosed Perez as a trial 

witness in the joint pretrial statement. There, they said she would “testify 

regarding all matters in the Complaint, her Answer and Counterclaim, the 

Facebook Group, and any other matters about which she has personal 

knowledge.”

¶38 The Mailatyars contend they did not have to disclose her 

earlier because Wright listed her as a witness in his disclosures. Wright 

listed Perez as a potential trial witness about a week before trial in his final 

supplemental disclosure statement. He contends he only listed Perez as a 

potential trial witness because she was a named defendant. But he and 

Perez settled their claims against one another in September 2021; as such, 

he contends he had no reason to believe the Mailatyars would call her at 

trial. And he did not list Perez as a trial witness in the joint pretrial 

statement.

¶39 The fact that Wright disclosed Perez as a witness in his 

disclosures does not excuse the Mailatyars’ obligation to timely disclose

their intent to call Perez as a trial witness or detail her intended trial 

testimony, nor does it authorize them to cut and paste Wright’s disclosures 

and claim them as their own in a joint pretrial statement. See Ariz. R. Civ. 

P. 26.1(a)(3) (requiring that “each party must disclose in writing . . . the 

name, address, and telephone number of each witness whom the disclosing 

party expects to call at trial”); see also Rivers v. Solley, 217 Ariz. 528, 532 ¶ 23 

(App. 2008) (“[T]he obligation to disclose under Rule 26.1 and the related 

discovery rules . . . is non-delegable.”). On this record, the court did not 

abuse its discretion in precluding Perez from testifying based on 

nondisclosure. See Estate of Brady v. Tempe Life Care Village, Inc., 254 Ariz. 

122, 125-26 ¶ 16 (App. 2022) (“Where a firm trial date has been set, [f]actors 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

13

supporting the exclusion of undisclosed evidence gain strength as the trial 

nears.”) (citations and quotations omitted).

2. Alexx Canale.

¶40 The superior court excluded Canale’s testimony on two 

grounds. It first found the Mailatyars did not disclose “her ‘address, and 

telephone number . . . and description of the substance—and not merely the 

subject matter’ of her testimony.” It also concluded Canale’s testimony 

likely would be irrelevant because her testimony related to the burglary

statements, which the court had ruled were defamatory per se.

¶41 The Mailatyars argue on appeal that Canale’s testimony was 

“crucial to describing the reputation of [Wright]” and “would have 

corroborated her confession [to burglarizing the Mailatyars’ home with 

Wright] and identified herself in [the] Episode 10 [video].” But they only 

disclosed that Canale would “testify about her employment with [Wright], 

her dealings and contact with [Wright], the burglary of [the Mailatyars’]

home and its connection with [Wright], and any other matter relevant to 

the litigation.”

¶42 The Mailatyars argue their disclosure was adequate because 

“Wright was deposed, was asked questions about Ms. Canale, recognized 

her right away as his former employee, and [was] able to watch the video 

where she confesses to being at [the Mailatyars’] home with [him].” While 

disclosure can occur in a deposition, the Mailatyars cite nothing to show 

they disclosed their intent to call Canale to testify when she was deposed.

Cf. Solimeno v. Yonan, 224 Ariz. 74, 80 ¶ 23 (App. 2010) (rejecting argument 

that information would have been disclosed at deposition “if opposing 

counsel had simply asked the correct questions”); Norwest Bank (Minnesota) 

v. Symington, 197 Ariz. 181, 186 ¶ 18 (App. 2000) (rejecting argument that 

opponent would have found nondisclosed evidence “if [he] had been 

diligent”). They also do not show they timely disclosed their intent to have

Canale testify about Wright’s reputation. On this record, they have shown 

no abuse of discretion in excluding Canale’s testimony.

D. Episode 10.

¶43 The Mailatyars also challenge the exclusion of the “Episode 

10” video, which they say contained “the alleged defamatory statements 

regarding the burglary.” They argue the jury should have been allowed to 

view the video because the superior court had a chance to view it when it 

considered Wright’s motion for partial summary judgment. They cite no 

authority suggesting evidence offered in support of a summary judgment 
WRIGHT v. MAILATYAR, et al.

Decision of the Court

14

motion must be admitted into evidence at trial. Thus, they have shown no 

error on this point.

CONCLUSION

¶44 This appeal is dismissed in part for lack of jurisdiction. The 

judgment otherwise is affirmed. Wright may recover his taxable costs 

incurred in this appeal upon compliance with ARCAP 21.