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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND 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

BARBARA A. SLOAN, a single woman, 

Plaintiff/Appellant,

v.

FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona

insurance company; FARMERS INSURANCE EXCHANGE, a California 

insurance company; and FARMERS GROUP, INC., a California 

corporation,

Defendants/Appellees.

Nos. 1 CA-CV 13-0475, 1 CA-CV 19-0558

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CV2009-033244

The Honorable Arthur T. Anderson, Judge (Retired)

The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Miller, Pitt, Feldman & McAnally, P.C., Tucson

By Stanley G. Feldman

Counsel for Plaintiff/Appellant

Poli, Moon & Zane, PLLC, Phoenix

By Michael N. Poli, Jeff Zane

Counsel for Plaintiff/Appellant

FILED 7-13-2021
2

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Lori L. Voepel, Donald L. Myles, Jr., Ashley Villaverde Halvorson

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Barbara Sloan appeals the trial court’s denial of her motion for 

a new trial under Arizona Rule of Civil Procedure 59, and motion for relief 

from judgment under Arizona Rule of Civil Procedure 60(c)(6).

1 For reasons 

that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY 

¶2 In May 2009, Sloan’s Phoenix home caught fire. Sloan was 

indicted in September 2009 for arson in connection with the fire, but the 

charge was eventually dismissed in October 2010 on the State’s motion.

Farmers Insurance Company of Arizona, Farmers Insurance Exchange, and 

Farmers Group, Inc. (collectively, “Farmers”), who insured Sloan’s home, 

delayed paying Sloan (over $1 million) for claims relating to the fire until 

after the arson charge was dismissed.

¶3 In October 2009, while the arson case was still pending, Sloan 

filed an action against Farmers for bad faith, breach of contract, and 

conversion, asserting that Farmers had acted unreasonably in handling her 

claim. As to bad faith specifically, Sloan alleged that “Farmers wrongfully 

withheld its investigative materials from [her], and as a result, she suffered 

severe emotional distress, was wrongly charged . . . [criminally] . . . and 

incurred substantial damages.”

¶4 Although Farmers paid Sloan’s insurance claim once the 

criminal charges were dismissed, which was long before trial, Sloan refused 

1 This rule has been renumbered as 60(b) in the current version of the 

Arizona Rules of Civil Procedure. We cite the rules that were in effect at the 

time of the trial court’s ruling. We otherwise cite the current version of 

statutes.
SLOAN v. FARMERS, et al.

Decision of the Court

3

to withdraw her cause of action for breach of contract. The matter was tried

before a jury over a six-week period in April and May 2012. 

¶5 At the close of evidence, the trial court granted a directed 

verdict in Farmers’ favor on both the breach of contract and conversion 

claims. The sole issue left for the jury to decide was whether Farmers acted 

in bad faith by failing to disclose exculpatory evidence Farmers had in its 

possession in the summer of 2009. The jury returned a 7-2 verdict in favor 

of Farmers.

¶6 Sloan promptly moved for a new trial under Rule 59, which 

the trial court denied. Sloan then appealed under case number

1 CA-CV 13-0475. The appeal was stayed in 2015 when Sloan moved the 

trial court for relief from judgment under Rule 60(c)(6) based upon a 2014 

newly generated Department of Public Safety (“DPS”) investigative report.

DPS concluded that two of the Phoenix Fire Department (“PFD”) 

investigators whose conclusions of arson led to the State filing criminal 

charges against Sloan, falsely reported the results of their investigation in

the Sloan house fire, and recommended the PFD investigators be charged

criminally.

¶7 The trial court granted Sloan’s Rule 60 motion, and Farmers 

timely appealed. The Rule 60 appeal was assigned case number 

1 CA-CV 16-0046. Following oral argument, this court reversed the trial 

court’s Rule 60 grant and remanded the matter back to the trial court with 

instruction for the trial court to “revisit[] the issues of (1) how the new 

information [contained in the DPS report] would change the presentation 

of evidence or other aspects of a retrial and (2) whether any such change 

establishes a colorable showing that Sloan is likely to succeed on retrial.” 

Sloan v. Farmers Ins. Co. of Ariz. (Sloan I), 1 CA-CV 16-0046, 2017 WL 4173614, 

at *3, ¶ 14 (Ariz. App. Sept. 21, 2017) (mem. decision).

¶8 On remand, and following oral argument, the trial court, 

albeit through a different judicial officer than had presided over the jury 

trial, ruled that: (1) while portions of the DPS report may be admissible, 

other parts of it, such as those portions of the report “recommending 

charges against [the PFD investigators],” would not be; (2) that even if 

partially admissible, the new information contained in the DPS report 

would not change the presentation of evidence or other aspects of a retrial; 

and (3) that Sloan had not established a colorable showing she was likely to 

succeed on retrial.
SLOAN v. FARMERS, et al.

Decision of the Court

4

¶9 The trial court denied Sloan’s Rule 60 motion on remand.

Sloan timely appealed. Both appeals have been consolidated under case 

number 1 CA-CV 19-0588. We have jurisdiction pursuant Article 6, Section 

9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1), (2), and (5)(a).

DISCUSSION 

I. Denial of Sloan’s Rule 59 Motion for a New Trial

¶10 Following the jury trial, Sloan moved for a new trial under 

Rule 59. She identified multiple perceived trial errors, including Farmer’s

“arson defense,” allowing an undisclosed expert witness to testify, the 

court’s refusal to rule on work-product privilege, the court’s refusal to 

admit documents, a challenge to one of Farmers’ witnesses under Rule 702 

of the Arizona Rules of Evidence, the court’s failure to properly instruct the 

jury, and the handling of a witness who invoked his Fifth Amendment right

while testifying.

¶11 Because Sloan’s opening brief addresses only two of the 

perceived errors raised in her Rule 59 motion, namely her claim that (1) the 

trial court erred by refusing to apply Rule 702 to the opinion of Farmers’ 

cause and origin fire investigator, James Hall, and (2) the court erred by 

refusing to admit certain documents prepared by the Maricopa County 

Attorney’s Office (the “MCAO”) in Sloan’s criminal case, she has waived 

the remaining arguments on appeal. See ARCAP 13(a)(7); Van Loan v. Van 

Loan, 116 Ariz. 272, 274 (1977) (“The failure to raise an issue . . . in briefs on 

appeal constitutes waiver of the issue.”); State Farm Mut. Auto. Ins. Co. v.

Novak, 167 Ariz. 363, 370 (App. 1990) (declining to address arguments on 

appeal where opening brief did not contain contentions of appellant with 

respect to issues presented); State v. Bolton, 182 Ariz. 290, 298 (1995) (finding 

claims waived for insufficient argument on appeal).

¶12 We review the denial of a motion for a new trial on the two 

remaining claims Sloan raises for an abuse of discretion, First Fin. Bank, N.A.

v. Claassen, 238 Ariz. 160, 162, ¶ 8 (App. 2015), and will affirm the trial

court’s rulings on the admission or exclusion of evidence absent an abuse 

of discretion and resultant prejudice, Brown v. U.S. Fid. & Guar. Co., 194 

Ariz. 85, 88, ¶ 7 (App. 1998).

a. Testimony of James Hall

¶13 Sloan moved several times, both before and during trial, to 

exclude the opinion of Farmers’ cause and origin fire investigator, James 
SLOAN v. FARMERS, et al.

Decision of the Court

5

Hall, under Rule 702.

2 The trial court denied each of Sloan’s motions, 

concluding that Hall’s testimony was not offered as expert testimony and 

that Rule 702 did not apply. Sloan contends Hall’s testimony was offered as 

expert testimony, that Hall was not qualified to testify as an expert, and by 

allowing Hall to testify, the court erred, the jury was misled, and Sloan was 

prejudiced.

¶14 It should be noted that Sloan limited her bad faith claim at 

trial to Farmers’ failure to disclose exculpatory evidence it had in the 

summer of 2009. Because Sloan had not withdrawn her claims for breach of 

contract or conversion at that time, Farmers was defending against all three 

causes of actions Sloan had raised, not just the bad faith claim. At least part 

of Farmers’ trial defense was that it had a reasonable basis for postponing 

payment to Sloan for claims related to the house fire, particularly while 

criminal charges for arson were pending. To bolster that defense, Farmers

called Hall as a witness. Farmers relied upon Hall’s conclusion of arson in 

processing Sloan’s claim.

¶15 In denying Sloan’s motions to exclude Hall’s testimony, the 

court found Rule 702 inapplicable because such testimony went to the issue 

of whether it was reasonable for Farmers to rely upon Hall’s opinions in 

processing Sloan’s claims. Because Hall’s testimony was not offered to 

prove arson—a fact which would require testimony by an expert—but was

instead offered in support of Farmers’ reasonableness defense, the court did 

not abuse its discretion in refusing to apply Rule 702. 

¶16 Assuming arguendo the trial court erred by refusing to apply 

Rule 702, that error was harmless. See Town of Paradise Valley v. Laughlin, 174 

Ariz. 484, 487 (App. 1992) (“[A]n error is harmless if there is no reasonable 

probability the verdict might have been different.”); Brown, 194 Ariz. at 88, 

¶ 7 (“The improper admission of evidence is not reversible error if the jury

would have reached the same verdict without the evidence.”).

¶17 Sloan made clear that her bad faith claim at trial was limited 

to Farmers conduct in failing to disclose exculpatory evidence in its 

possession in the summer of 2009. Sloan was indicted in September of 2009

and Farmers retained Hall the following week. Hall’s report, in which he 

concluded the fire was of incendiary origin (arson), was not issued to 

2 Sloan also moved to exclude the testimony of Farmers’ witness, Robert 

Laubacher. However, because Laubacher invoked the Fifth Amendment 

and refused to testify, Sloan limits her assignment of error to the court’s 

failure to apply Rule 702 to the opinions of Hall.
SLOAN v. FARMERS, et al.

Decision of the Court

6

Farmers until April 2010. Thus, Hall’s testimony could not have been 

relevant to the only claim that survived directed verdict and went to the 

jury because Hall’s investigation, conclusion, and testimony could not have 

revealed Farmers’ state of mind in the summer of 2009. 

b. Exclusion of the MCAO Documents

¶18 Sloan also assigns error to the trial court’s refusal to admit two 

documents created by the MCAO in Sloan’s criminal case -- a case 

disposition worksheet (the “Worksheet”) and a case log (the “Case Log”).

Both documents contained the prosecutors’ opinions, theories, and 

conclusions regarding the evidence against Sloan, including the reasons for 

dismissing the criminal case. Sloan sought to use the documents in the civil 

case against Farmers. Sloan argues the documents were essential to rebut

the improper-causation arguments advanced by Farmers, that the jury was 

misled by their exclusion, and that Sloan suffered prejudice as a result.

¶19 Sloan’s theory at trial was that, had the exculpatory evidence

been released to her, the prosecutors, and the fire department, she would 

not have been criminally prosecuted.3 Unsurprisingly, Farmers argued that 

even if the allegedly exculpatory information had been released, the 

prosecutors would still have brought criminal charges against Sloan. The 

prosecutors were unavailable as witnesses; thus, the court held that the 

issue of causation was to be decided by an “objective” standard—i.e.,

whether a reasonable prosecutor would have brought criminal charges

against Sloan had Farmers disclosed the exculpatory information.

¶20 At trial, Sloan requested permission to discuss and use the 

information contained in the Worksheet. The court denied Sloan’s request, 

finding that because it had adopted an “objective” standard on causation,

allowing the parties’ experts to recite MCAO’s subjective and “internal 

assessment of the evidence and decisions” offended the objective standard

and was “irrelevant . . . and that any possible relevance [was] outweighed 

by its misleading and prejudicial nature.”4

3 Sloan contends that Farmers improperly withheld exculpatory 

information including the report of its initial cause and origin expert, 

Robert Laubacher, and its internal claims log.

4 While Sloan did not specifically request permission to use the Case Log,

the court nevertheless precluded its admission.
SLOAN v. FARMERS, et al.

Decision of the Court

7

¶21 Sloan contends that despite the objective standard, Farmers

was nevertheless permitted to argue that the prosecutors in Sloan’s case did 

not consider the evidence to be clearly exculpatory, as evidenced by the fact 

that following its disclosure, they continued the prosecution and dismissed 

the case solely because of a mere technicality. According to Sloan, because 

the court allowed Farmers to make such subjective causation arguments,

the court should have allowed her to use the MCAO documents in rebuttal 

at a minimum. 

¶22 Based upon this record, we cannot say the trial court abused

its discretion in excluding the Worksheet and Case Log. Both parties 

advanced their theories of causation by relying on inferences from the 

criminal prosecution record and Sloan has not shown she was prejudiced 

by such inferences. Sloan too, advanced causation arguments based on 

inferences from the criminal prosecution record. In Sloan’s opening 

statement, counsel repeatedly told the jury that the criminal charges were 

dismissed after the information in Farmers’ files was disclosed—clearly 

insinuating that, had the exculpatory evidence been timely disclosed, she 

would not have been criminally prosecuted. Because the Worksheet and 

Case Log did, in fact, reveal the prosecutors’ subjective thoughts, their 

admission would be used to demonstrate more than simple inferences and 

would prejudice the jury’s determination of whether a reasonable prosecutor 

would have brought criminal charges against Sloan had Farmers disclosed 

the exculpatory information. The court did not err in determining, under 

Arizona Rule of Civil Procedure 403, that the potential relevance of the 

Worksheet and Case Log were substantially outweighed by the danger of 

unfair prejudice. 

II. Denial of Rule 60 Relief on Remand

¶23 Sloan urges us to apply a de novo standard of review of the 

Rule 60 denial on remand, contending the procedural posture of this case 

requires us to afford less deference to a judge who did not preside over the 

trial, and contends the second judge impermissibly reversed a factual 

finding made by the trial judge. Specifically, Sloan argues that by 

concluding Farmers relied on a causation defense, rather than a de facto 

arson defense, the second judge “effectively reversed a factual finding by 

[the trial judge].” Sloan relies on several cases from other jurisdictions for 

the proposition that rulings by a successor judge should be reviewed under 

a de novo standard where the successor judge reverses factual findings, 

weight of the evidence conclusions, or credibility determinations by the 

trial judge.
SLOAN v. FARMERS, et al.

Decision of the Court

8

¶24 The cases cited by Sloan are distinguishable from the instant 

case. Each case cited by Sloan is missing a critical step that is present 

here—the appeal of a ruling and the subsequent reversal of such ruling, 

prior to the determination by the successor judge. See State v. Ellis, 453 

S.W.3d 889, 896–97 (Tenn. 2015) (successor judge denied defendant’s 

motion for a new trial prior to defendant’s appeal); Pinecrest, LLC

& Mastercare, Inc. v. Harris ex rel. Estate of Callendar, 40 So.3d 557, 559–60

(Miss. 2010) (after recusal by trial judge, successor judge was appointed by 

the appellate court to preside over the remainder of the proceedings; 

appellate court did not reverse trial judge’s rulings prior to successor’s

appointment); Head v. CSX Transp., Inc., 271 Ga. 670, 670–71 (1999)

(appellate court did not become involved until after the successor judge 

reversed the ruling by the trial judge); Amiker v. Drugs For Less, Inc., 796 

So.2d 942, 945, ¶¶ 4–6 (Miss. 2000) (successor judge vacated trial judge’s 

order prior to appellate court’s involvement). In reversing the trial court’s 

initial Rule 60 grant, this court vacated the ruling in its entirety. Sloan I, 1 

CA-CV 16-0046, at *1, ¶ 1. And while this court remanded the matter to the 

trial court with instructions to revisit certain issues, id. at *3, ¶ 14, the court 

was not required to rely on the determinations made by the previous 

judicial officer. See Nielson v. Patterson, 204 Ariz. 530, 533, ¶ 12 (2003) (“A 

vacated judgment lacks force or effect and places parties in the position they 

occupied before entry of the judgment.”). Thus, we decline Sloan’s 

invitation for de novo review, and instead review the trial court’s decision 

for an abuse of discretion. See Johnson v. Elson, 192 Ariz. 486, 488, ¶ 9 (App. 

1998).

¶25 Rule 60(c) allows the trial court to relieve a party from a final 

judgment based on the following grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) 

newly discovered evidence which by due diligence could not 

have been discovered in time to move for a new trial under 

Rule 59(d); (3) fraud (whether heretofore denominated 

intrinsic or extrinsic), misrepresentation or other misconduct 

of an adverse party; (4) the judgment is void; (5) the judgment 

has been satisfied, released, or discharged, or a prior 

judgment on which it is based has been reversed or otherwise 

vacated, or it is no longer equitable that the judgment should 

have prospective application; or (6) any other reason 

justifying relief from the operation of the judgment.

Ariz. R. Civ. P. 60(c). “While the precise scope of Rule 60(c) relief defies neat 

encapsulation . . . [the rule] is primarily intended to allow relief from 
SLOAN v. FARMERS, et al.

Decision of the Court

9

judgments that, although perhaps legally faultless, are unjust because of 

extraordinary circumstances that cannot be remedied by legal review.”

Tippit v. Lahr, 132 Ariz. 406, 408–09 (App. 1982). A party requesting relief 

under Rule 60(c)(6) must show “extraordinary circumstances of hardship 

or injustice justifying relief.” Davis v. Davis, 143 Ariz. 54, 57 (1984). To 

prevail on a motion under this provision, a party must make at least a

colorable showing that the alleged information or evidence would change

the outcome of the action if the case were re-tried. See Gonzalez v. Nguyen,

243 Ariz. 531, 534, ¶ 12 (2018) (noting well-established rule that relief from

a default judgment under Rule 60(c)(6)requires a showing of “a meritorious

defense”); cf. Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 595, ¶ 17

(App. 2007) (noting that re-opening a case under Rule 60(c)(2) requires the

newly discovered evidence be more than merely cumulative).

a. Law of the Case

¶26 Sloan argues the “factual” finding supporting the trial court’s 

initial grant of Rule 60 relief—that Farmers relied on an arson 

defense—constituted the “law of the case” and that the second judge erred 

by failing to accept and apply that finding on remand. We disagree with the 

premise of Sloan’s contention that the trial judge’s framing of Farmers’ trial 

defense as an “arson defense” resulted in the trial court making that a 

finding of “fact.” Regardless, we address Sloan’s “law of the case” 

argument.

¶27 The “law of the case” doctrine refers to the principle that 

when an appellate court rules on a question of law and remands the matter 

for further proceedings in the trial court, the legal questions answered in 

the appellate court’s ruling will not be disturbed in that same case below or 

on a subsequent appeal. Emp’rs Mut. Liab. Ins. Co. of Wis. v. Indus. Comm’n, 

115 Ariz. 439, 441 (App. 1977). The trial court, however, is not precluded 

from reconsidering an earlier decision in a manner that is consistent with 

the decision on appeal. See Hall v. Smith, 214 Ariz. 309, 317, ¶¶ 28–29 (App.

2007); see also Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 

Ariz. 275, 278 (App. 1993) (“When . . . we apply the doctrine to decisions of 

the same court, we treat law of the case as a procedural doctrine rather than 

as a substantive limitation on the court’s power.”); Zimmerman v. Shakman, 

204 Ariz. 231, 236 (App. 2003) (noting the law of the case doctrine “does not 

prevent a judge from reconsidering nonfinal rulings, ‘[n]or does it prevent 

a different judge, sitting on the same case, from reconsidering the first 

judge’s prior, nonfinal rulings’” (quoting State v. King, 180 Ariz. 268, 279 

(1994))). 
SLOAN v. FARMERS, et al.

Decision of the Court

10

¶28 Sloan correctly noted the arson defense to a fire insurance 

claim requires the insurer to prove “by the preponderance of the evidence 

that: (1) the fire was of incendiary origin [meaning arson] and (2) the 

insured was responsible for it.” Godwin v. Farmers Ins. Co. of Am., 129 Ariz. 

416, 419 (App. 1981). 

¶29 Interestingly, however, the jury was not instructed on the 

“arson defense.” Instead, the court instructed the jury on bad faith, 

explaining that Sloan had to prove “Farmers intentionally withheld 

information about its investigation from Sloan, its insured, without a 

reasonable basis for such action,” and that “but for Farmers’ failure to 

disclose this exculpatory information[,] criminal charges would not have 

been pursued by a prosecutor.” And while the record does show that 

Farmers “sometimes described its strategy as ‘an arson defense,’” the 

second judge did not commit error in disagreeing with the trial judge and 

concluding that Farmers did not rely upon a de facto arson defense. 

¶30 Sloan, relying on Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 

325 (App. 2009), argues that because this court’s decision in Sloan I did not 

explicitly disturb the trial court’s conclusion that Farmers relied on an arson 

defense, this court implicitly affirmed that conclusion and, under Bogard, 

the second judge had no authority to revisit it. Bogard is distinguishable 

from the matter before us. In Bogard, this court held that because plaintiff 

appealed the trial judge’s rulings on her claims for discrimination and 

retaliation, but failed to appeal the damages ruling, the damages ruling was 

implicitly affirmed on appeal; consequently, the successor judge had no 

jurisdiction to review or change that ruling. Id. at 332, ¶¶ 23–24. Here, no 

such implicit affirmation occurred. This court vacated the trial court’s 

ruling because it “[did] not specify an adequate basis for Rule 60(c) relief.” 

Sloan I, 1 CA-CV 16-0046, at *3, ¶ 14. Accordingly, because the reasons 

supporting the ruling were deficient, this court reversed and remanded for 

the trial court to provide a proper basis for granting or denying relief. Id.

The trial court, through the second judge, was not limited in its review or 

conclusion related to the Rule 60 motion. 

b. DPS Report

¶31 Continuing with her contention that Farmers relied on an 

“arson defense,” Sloan argues she is entitled to relief from judgment 

because the DPS report would change the presentation of the evidence at 

trial and that the DPS report establishes a colorable showing that she is 

likely to succeed on retrial. As discussed, supra ¶ 29, the record does not

support Sloan’s contention that Farmers advanced an arson defense. But 
SLOAN v. FARMERS, et al.

Decision of the Court

11

even if arguendo Sloan’s contention was correct, Sloan has failed to show 

how the 2014 DPS investigation and resulting report has any bearing on 

what the State or Farmers believed in the summer of 2009 to have caused the 

fire. 

¶32 While the DPS investigation may call into question the 

integrity of the evidence Farmers had in the summer of 2009, it has no 

bearing on whether Farmers’ actions at the time, in light of the evidence 

available to it, were reasonable. The record is devoid of any evidence 

indicating that Farmers had knowledge that some of the information 

provided by PFD was false, and Sloan does not advance that argument on 

appeal. Despite its truth or falsity, the fire investigation evidence available 

at the time of the alleged bad faith actions of Farmers was the evidence 

upon which both Farmers and the prosecutors relied. The subsequent DPS 

investigation and report have no bearing on whether Farmers was acting in 

bad faith in 2009, five years before anyone became aware that the PFD 

investigators had falsified their report related to the Sloan house fire. Any 

new evidence produced since that time, including the DPS report, is 

irrelevant to the issues at trial. Vacating the judgment, therefore, would be 

an “empty exercise.” Teamsters Union, Local No. 59 v. Superline Transp. Co., 

953 F.2d 17, 20 (1st Cir. 1992) (“It is the invariable rule . . . that a litigant, as 

a precondition to relief under Rule 60[(c)], must give the trial court reason 

to believe that vacating the judgment will not be an empty exercise.”).

c. The Trial Court’s Refusal to Call Witnesses Under Rule 63 

¶33 After the case was remanded to the trial court, Sloan, citing 

Rule 63 of the Arizona Rules of Civil Procedure, requested that the second 

judge take testimony from the DPS officers involved in the investigation, 

two PFD investigators, Farmer’s initial cause and origin investigator, 

Robert Laubacher, and the trial judge. Sloan argues that the second judge’s

failure to call the above-mentioned witnesses was reversible error. 

¶34 Rule 63 provides: “[i]n a hearing or a nonjury trial, the 

successor judge must, at a party’s request, recall any witness whose 

testimony is material and disputed, and who is available to testify again

without undue burden.” Ariz. R. Civ. P. 63 (emphasis added). Because the 

DPS investigators, PFD investigators, Robert Laubacher,5 and the trial 

judge did not testify at trial, the second judge was not required to call them 

as witnesses. See Ariz. R. Civ. P. 63 (requiring a successor judge to recall a 

witness who testified at trial when that witness’s testimony is material and 

5 Laubacher invoked the Fifth Amendment and refused to testify.
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Decision of the Court

12

disputed). Rule 63 does not require a successor judge to call a witness who 

did not testify at trial. Id.

CONCLUSION

¶35 For the foregoing reasons, we affirm. As the prevailing party 

on appeal, Farmers is entitled to recover its costs upon compliance with 

ARCAP 21.