Grady v. Barth
312 P.3d 117
Ariz. Ct. App.2013Background
- Michael and Jennifer Grady (defendants) remained in possession of residential property after Tri-City National Bank purchased it at a non-judicial trustee’s sale.
- Tri-City sued in forcible entry and detainer (FED) in superior court; the superior court entered judgment for Tri-City and issued a writ of restitution.
- The Gradys appealed and requested a stay of execution pending appeal by posting a bond under A.R.S. § 12-1182(B); Tri-City opposed, arguing no automatic stay applied because there was no landlord-tenant relationship.
- The superior court denied the stay, applying the preliminary-injunction style Smith factors (likelihood of success, balance of harms, public policy) and concluding the Gradys were unlikely to succeed on appeal.
- The court of appeals accepted special-action jurisdiction, stayed the writ temporarily, and required the Gradys to post a bond complying with § 12-1182(B) while the special action was resolved.
Issues
| Issue | Plaintiff's Argument (Tri-City) | Defendant's Argument (Gradys) | Held |
|---|---|---|---|
| Whether a superior court has discretion to deny a stay of an FED judgment pending appeal under A.R.S. § 12-1182(B) when the plaintiff acquired title at a trustee’s sale | § 12-1182(B) allows the court discretion to deny stays; Eviction Rule 17(c) supports discretion | Tovar and the FED statutory scheme entitle a party in possession to a stay if they post the statutory bond | Court held the superior court does not have discretion to deny a stay: posting a bond meeting § 12-1182(B) entitles the possessor to a stay pending appeal |
| Whether Tovar (automatic stay for tenant upon bond) applies only to landlord-tenant cases or also to tenants at sufferance after trustee’s sale | Tovar should be limited to classic landlord-tenant disputes tied to A.R.S. § 33-361 | Tovar’s rule should extend to possessors after trustee’s sale given statutory expansion of FEDs | Court held Tovar’s rule extends: possessors after trustee’s sale (tenants at sufferance) may obtain stay by posting statutory bond |
| Whether Eviction Rule 17(c) can override statute and permit discretionary denial of stays | Rule 17(c) allows discretion and may be read to permit court to apply Smith factors | Statute controls; rule cannot abridge substantive statutory right to stay upon bond | Court held the rule cannot supersede the substantive statute; rule may only govern court’s evaluation of bond sufficiency |
| Whether the superior court may assess the sufficiency of the bond | N/A | While bond grants stay right, trial court must fix/approve bond amount and conditions | Court held superior court retains discretion to determine whether a posted bond meets statutory requirements |
Key Cases Cited
- Tovar v. Superior Court, 132 Ariz. 549, 647 P.2d 1147 (Ariz. 1982) (holding a tenant in possession is entitled to a stay pending appeal upon posting a statutory bond)
- Andreola v. Arizona Bank, 26 Ariz. App. 556, 550 P.2d 110 (Ariz. App. 1976) (permitting FED actions against holders after trustee’s deed; recognizing tenants at sufferance)
- Smith v. Arizona Citizens Clean Elections Commission, 212 Ariz. 407, 132 P.3d 1187 (Ariz. 2006) (articulating appellate-context stay factors analogous to preliminary injunction analysis)
- Phoenix-Sunflower Indus., Inc. v. Hughes, 105 Ariz. 334, 464 P.2d 617 (Ariz. 1970) (stating FED historically depended on landlord-tenant relationship)
- Hinton v. Hotchkiss, 65 Ariz. 110, 174 P.2d 749 (Ariz. 1946) (procedural FED provisions are integral to the remedy and cannot be displaced by procedural rules)
- Williams v. Miles, 212 Ariz. 155, 128 P.3d 778 (Ariz. App. 2006) (trial court must set/approve bond amount consistent with statutory requirements)