Tri City National Bank v. Barth – 3/17/2015

March 23, 2015

Arizona Court of Appeals Division One holds that appeal of one judgment does not give the superior court power to stay execution of a different judgment.

Former owners of a Paradise Valley home defaulted on a note and deed of trust.  They refused to leave the property even after substantial litigation, appeals, and adverse judgments.  This blog previously covered an earlier reported decision in this litigation here.

Eventually, the superior court entered a final judgment in favor of the bank for forcible entry and detainer.  The former owners exhausted all appeals, including an unsuccessful petition for review to the Arizona Supreme Court.  Back in superior court, the bank requested several things, including release of the supersedeas bond that had been posted.  In response, the former homeowners filed a motion for abeyance and to set aside the judgment, among other things.  The superior court granted the bank’s requests and denied the former homeowners’ requests.  The former homeowners filed a notice of appeal.

The superior court also granted, at the request of the former homeowners, a stay of execution of the original judgment for forcible entry and detainer.  The bank sought special action review, which the court of appeals granted. 

The court of appeals held that the superior court had no power to stay the judgment for forcible entry and detainer because that judgment was not on appeal (and could not be further appealed).  The ancillary appeal related to the denial of the motion for abeyance and to set aside the judgment did not give the court power to stay a separate judgment. 

ARCAP 7(b) gives a court power to stay the judgment from which a party appealed, but that does not extend to a separate judgment.  The superior court could stay the judgment related to the motion for abeyance and to set aside the judgment, but that would have the effect of leaving the motion pending; it would not stay execution of the judgment for forcible entry and detainer.

Judge Swann authored the opinion.  Judges Cattani and Winthrop joined.