How to Appeal an Eviction in Arizona
Arizona law provides tenants the opportunity to appeal an eviction judgment. Appealing an eviction in Arizona is so expensive, time consuming, and cumbersome that I’ve never seen a tenant successfully overturn an eviction.
Appeals on Justice Court decisions go to the Superior Court. A Superior Court judge will look at the facts as they were originally presented and determine if the first judge did not properly follow the law. On appeal neither party presents witnesses, and no new evidence is introduced.
Below are the steps to appealing an eviction in Arizona.
There are two stages to appealing an eviction judgment. The first stage of the process begins in the Justice Court; the second stage takes place in the Arizona Superior Court. All of the steps must be followed with exactness or the appeal will be dismissed.
STAGE ONE – Notice of Appeal
Notice of Appeal: 5-day Deadline: A Notice of Appeal MUST be filed with the Justice Court within 5 calendar days of the judgment. There is no flexibility with this deadline! If the deadline is missed then the eviction cannot be appealed.
Fee to File the Notice of Appeal: A $75 appeal fee is paid to the Justice Court at the time the Notice of Appeal is filed. This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.
Cost Bond: On or before the deadline to appeal, a cost bond of $250 must be paid. The purpose of this bond is to cover court costs incurred by the landlord in defending the appeal.
Rent Pending Appeal: The tenants must pay rent to the court clerk during the appeal process. Failure of the appellant to pay any rent due as it accrues is cause for the appellee to seek an order allowing it to enforce a writ of restitution, but shall not be cause for the dismissal of the appeal. In this event, the appeal will proceed despite the appellant’s loss of possession of the premises while it is pending.
supersedeas bonds
There are two bonds that must be paid to the court by the Tenant.
First Supersedeas Bond: The purpose of the first supersedeas bond is to prevent the landlord from enforcing the financial portion of the judgment. The purpose of this bond is to stay collection proceedings on the money judgment awarded.
Amount of the First Supersedeas Bond. The amount of the first bond is the total amount of the judgment ordered by the justice court, including court costs, attorney’s fees, damages, etc. The stay becomes effective when the bond is posted. Meaning the judgment creditor will not be able to try and collect on the judgment. For example, a landlord is prevented from garnishing the tenant’s wages.
Second Supersedeas Bond: Payment of the second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment. The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution.
Amount of the Second Supersedeas Bond. The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the Writ of Restitution is enforced. The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.
It is not necessary for an appealing tenant to post either of the two supersedeas bonds, however, they must be paid to prevent enforcement of the eviction judgment.
Rent Payment: In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process. All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process. Pursuant to ARS 12-1179(E), if the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.
Appellant’s Memorandum: Within 60 days of filing an appeal the tenant must file a written memorandum with the court. The memorandum must explain why the justice court’s ruling was legally flawed. It should cite specific Arizona law and how it was inappropriately applied to the facts of the relevant case. The tenant’s memorandum must be filed within 60 calendar days of the deadline to file the Notice of Appeal.
Landlord’s Memorandum: The landlord as 30 days to file a response to the tenant’s memorandum. Once both parties have filed their respective memorandum they must wait for further instruction from the Superior Court.
Once all of the steps listed above have been completed the case will be transferred to the Superior Court.
STAGE TWO – The Superior Court
About 60 days after the tenant files the memorandum, he or she will receive notice from the Superior Court instructing that a filing fee must be paid to the Superior Court.
Court’s Ruling: Under Superior Court Rules of Appellate Procedure-Civil, after all of these steps have been completed, the parties will receive a written ruling from the Superior Court. The Superior Court can affirm the trial court, overrule the trial court, modify some of the trial court’s decision, or, if the record is not clear order a new trial in the Superior Court.
If the final outcome of the case is that the original ruling stands, or if the tenant’s appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.
***APPEALING AN EVICTION CASE THAT BEGAN IN SUPERIOR COURT***
The following red text explains the appeal process for eviction cases that began in the Superior Court. Note that 99% of all residential evictions begin in the Justice Court system.
An appeal from a Superior Court residential eviction is governed by Rule 17 of the Rules Procedure for Eviction Actions.
Notice of Appeal– A tenant / Defendant must file a Notice of Appeal within five (5) calendar days of the judgment entry. If the Notice of Appeal is not filed within the five days then the defendant is prohibited from moving forward with the appeal!
Fee– There is a fee for appealing a residential eviction from the Superior Court.
Bond– The tenant shall pay a bond in an amount approved by the court. A.R.S. Rule 17(c) of the Rules of Procedure for Eviction Actions states that “The [tenant] shall file a bond in an amount fixed and approved by the court…The bond shall be filed in an amount that provides security for the rental value of the premises pending the appeal and all damages, costs and rent that has been or may be ordered by the superior court”.
Rule 17(c) goes on to say that, “In the event that a defendant remaining in possession pending appeal subsequently breaches an appeal condition imposed by the court, the plaintiff may file an emergency motion to lift a stay, and the court shall conduct a hearing within three days. If the third day is a Saturday, Sunday or other legal holiday the hearing shall be held on the next court day.
The court’s decision denying a stay, conditioning the stay, or subsequently lifting the stay after a breach of an imposed condition may be reviewed by filing a petition for a special action with an appropriate appellate court pursuant to the Rules of Procedure for Special Actions.”
Appellate Court. An eviction appeal from a case that started in the Superior Court will be ultimately transferred into the Court of Appeals. The Defendant must file a memorandum explaining to the Court of Appeals Judge why the Superior Court Judge was wrong for entering judgment in favor of the landlord. The Plaintiff / landlord must then file its own memorandum in response in which it is argued that the Superior Court judge was correct in its ruling.
If you are a landlord and need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.
* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the states of Arizona and New York.