In recent months, our firm has seen an influx of tenants filing appeals of eviction cases. It appears that tenants are grasping at straws in attempts to stay in properties, whether in a post-trustee sale eviction or a simple non-payment of rent eviction. As the processing of appeals have been taking longer than before, tenants are able to stay in properties longer – assuming they “pay to stay” and follow all of the procedural requirements.
In any civil or criminal case, a party always has the right to appeal the trial court’s decision. Contrary to what many people believe, an appeal normally does not allow a person to have a new trial and present all of their evidence to a new court. Appeals are handled primarily upon legal briefs written by the parties. The party appealing (the appellant) bears the burden of convincing the higher court that the trial court made a factual or legal error based upon something that happened before or during trial. The appellant is generally not permitted to introduce new evidence or new legal arguments on appeal. The responding party (the appellee) submits their arguments in brief form as well, responding to the arguments raised by the appellant, and explaining how the trial court made the proper decision. In cases being appealed from Superior Court to the Court of Appeals, the appellant is able to submit a final brief supporting their position.
In an eviction, the appeal procedures are set forth in A.R.S. § 12-1179 (for appeals from justice court to Superior Court) and in A.R.S. § 12-1182 (for appeals from Superior Court to the Court of Appeals). As most non-payment of rent evictions are handled in justice court, that process will be the focus of this article.
Under A.R.S. § 12-1179(A), after rendition of judgment, a tenant has 5 days to file his Notice of Appeal. This is a document informing the court and the landlord that the tenant is appealing. The Notice does not contain any legal argument. At the time the Notice is filed, the tenant is to pay a $250 cost bond to potentially cover some of the costs the landlord will incur on appeal. Additionally, if the tenant wishes to stay in the property during the appeal, they have to pay a supersedeas bond, in an amount to be determined by the trial court. This can often be hundreds or thousands of dollars, depending on how the bond is calculated by the court. Both of these bonds are held by the court and are released to the prevailing party once the appeal is concluded.
If the supersedeas bond is paid, the tenant is then allowed to stay until the next rental period or until the first of the next month if no lease exists. The tenant has to begin paying into the court the monthly rental value. If the rent is timely paid, then the tenant is permitted to stay for that month. Unlike the bonds, the monthly rent is usually disbursed, upon request, to the landlord during the appeal.
After the Notice has been filed, the tenant has 60 days to file his initial appellant memorandum outlining all of the factual and legal errors the trial court made. This generally requires appellants to point out where during the proceeding an error was made, and include legal arguments regarding the alleged error. From the date it is filed, the landlord has 30 days to file its response brief including factual and legal arguments. After both briefs have been filed, the case is then transferred to the Superior Court, which will require both parties to pay the appeal fee. After the fees have been paid, the case is assigned to a judge on appeal, who has sixty days to make a ruling.
While this process should be relatively fast, due the high volume of appeals, the process of transferring the case, sending out the demand for appeal fees, and then assigning the case now takes several months. Where we used to tell clients that appeals would run six months before a decision was made, we now estimate 10-12 months. This time period assumes that the tenant pursues the appeal through completion, follows all the proper steps and pays the required fees. If any of the steps are done improperly, a landlord acting quickly can seek to get the appeal dismissed or to get the tenant out of the property.
Make sure you know the process, so that you can avoid it by negotiating judgments with tenants where they waive their appeal rights, and knowing when and how to petition the court to remove tenants who fail to follow the rules. A little understanding of the process can put you in the driver’s seat, and help you protect your interests.
