Tri City National Bank v. Barth

346 P.3d 27, 237 Ariz. 90, 2015 Ariz. App. LEXIS 39
CourtCourt of Appeals of Arizona
DecidedMarch 17, 2015
DocketNo. 1 CA-SA 14-0249
StatusPublished
Cited by2 cases

This text of 346 P.3d 27 (Tri City National Bank v. Barth) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tri City National Bank v. Barth, 346 P.3d 27, 237 Ariz. 90, 2015 Ariz. App. LEXIS 39 (Ark. Ct. App. 2015).

Opinion

OPINION

SWANN, Judge:

¶ 1 Tri City National Bank (“TCNB”) petitions for special action relief from the superi- or court’s order granting Real Parties in Interest’s (“the Gradys’ ”) motion for stay of execution of a Forcible Entry and Detainer (“FED”) judgment, pending appeal of the superior court’s order denying the Gradys’ Motion to Set Aside Judgment. We accept jurisdiction and grant relief. We hold that because the Gradys are appealing a judgment denying their Motion to Set Aside, the trial court abused its discretion when it granted a stay of execution of a judgment other than the judgment being appealed, in violation of ARCAP 7.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2008 the Gradys entered into a Note and Deed of Trust on their Paradise Valley home with TCNB’s predecessor, Bank of Elmwood (“BOE”). The Gradys defaulted on their obligations and were notified of the default and advised on how to cure it in early 2009. The Gradys failed to cure the default and instead sued BOE and sought an injunction to prevent a trustee’s sale of the property. Eventually the sale was allowed to go forward and TCNB became the owner of the property in October 2012 as the successful bidder at the sale. Shortly thereafter, TCNB demanded that the Gradys vacate the property, but they have yet to do so.

¶ 3 In November 2012, TCNB filed an action for FED pursuant to A.R.S. § 12-1173.01 to remove the Gradys from the prop[91]*91erty. The Gradys eventually filed an Answer to TCNB’s Complaint, alleging affirmative defenses relating to the propriety of the sale and title to the property. TCNB then filed a Motion for Judgment on the Pleadings, which the trial court granted. The Gradys appealed that final judgment to this court, and we affirmed. Tri City Natl. Bank v. Grady, No. 1 CA-CV 13-0077, 2014 WL 1117072 (Ariz. App. Mar.20, 2014) (mem. decision). The Supreme Court denied review in September 2014.

¶ 4 Meanwhile, the Gradys also filed a Petition for Special Action challenging the superior court’s order denying their request for a stay of execution of the FED judgment pending appeal. It was in the resulting opinion that this court held A.R.S. § 12-1182(B) “requires] the superior court to stay execution of an FED judgment pending appeal when the party in possession posts a bond conditioned on prosecuting the appeal ‘to effect’ and in an amount sufficient to cover rental value and all awarded damages, costs, and rent.” Grady v. Barth, 233 Ariz. 318, 322, ¶ 18, 312 P.3d 117 (App.2013).

¶ 5 Once the Supreme Court denied the Gradys’ petition for review, TCNB requested that the trial court issue a Writ of Restitution, terminate the stay of execution of the FED judgment, and release the proceeds of the supersedeas bond to TCNB as the prevailing party on appeal. In response, the Gradys filed a “Motion for Abeyance of Proceedings and for Continuation of Supersede-as Bond or, In the Alternative, Motion to Set Aside Judgment.” On October 16, 2014, the trial court denied the Gradys’ motion in an unsigned minute entry and issued a final signed order granting TCNB’s application for issuance of the Writ of Restitution, terminating the stay of execution of the FED judgment that was entered in May 2013, and releasing the bond proceeds.

¶ 6 Undeterred, the Gradys filed a Notice of Appeal from “the Order entered on October 16, 2014” in favor of TCNB. However, because the signed order entered on October 16, 2014, did not address the court’s denial of the Gradys’ Motion for Abeyance/Motion to Set Aside Judgment, the Gradys amended their notice of appeal and now appeal from “the Order executed and entered nunc pro tunc on November 17, 2014 with the intent it be deemed effective as of October 16, 2014.” The signed order entered on November 17, 2014, was the order denying the Gradys’ Motion for Abeyance/Motion to Set Aside Judgment. The Gradys also filed a motion for stay of execution of the original FED judgment pending appeal of the order denying their Motion for Abeyance/Motion to Set Aside, which the trial court granted. The court found that it had no discretion to deny the stay under this court’s decision in Grady v. Barth. TCNB then filed this Petition for Special Action arguing that the trial court did have discretion to deny the stay of execution of the FED judgment.

JURISDICTION AND STANDARD OF REVIEW

¶ 7 We accept special action jurisdiction because TCNB does not have an equally plain, speedy, and adequate remedy by appeal and this case presents an issue of statewide importance. Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 5, 88 P.3d 186 (App.2004); Montgomery v. Whitten, 228 Ariz. 17, 19, ¶ 6, 262 P.3d 238 (App.2011).

¶ 8 TCNB has no equally plain, speedy, and adequate remedy by appeal. The order granting TCNB an FED judgment has already been upheld on appeal. With clean title, the fair market rental value of the property is $6,000 per month. However, because of the cloud on title the Gradys themselves created, the trial court discounted the rental value to $3,500, which is all the Gradys are required to pay toward the required bond. Put simply, the Gradys are receiving a continuing unjust benefit through procedural gamesmanship.

¶ 9 The issue TCNB raises is a pure question of law. In Grady v. Barth, we extended the holding in Tovar v. Superior Court (Hill), 132 Ariz. 549, 647 P.2d 1147 (1982), and held that A.R.S. § 12-1182(B) requires the superior court to stay execution of an FED judgment pending appeal when a tenant at sufferance is in possession after a trustee’s sale. 233 Ariz. at 322, ¶ 18, 312 P.3d 117. At issue in this special action is [92]*92whether the superior court abused its discretion when, by applying this court’s decision in Grady, it ordered a stay of execution of a judgment not currently pending appeal.

¶ 10 Because the decision to stay the execution of a judgment pending appeal is discretionary, we review the court’s decision to grant a stay for abuse of discretion. See Tonnemacker v. Touche Ross & Co., 186 Ariz. 125, 130, 920 P.2d 5 (App.1996) (holding that although the trial court did not have discretion to dismiss the action, it did have discretion to stay the action); F.C.Y. Constr. & Equip. Co. v. Superior Court (Harrison, Inc.), 24 Ariz.App. 596, 597, 540 P.2d 722 (1975) (concluding that the trial court “in its discretion, may grant a stay”).

DISCUSSION

¶ 11 Both the Gradys and TCNB exclusively argue whether the stay granted by the superior court was discretionary under ARPEA 17(c), A.R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
346 P.3d 27, 237 Ariz. 90, 2015 Ariz. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-city-national-bank-v-barth-arizctapp-2015.