By: Nicholas Kunz
Can a court stay the execution of a Forcible Entry and Detainer (“FED”) action when the FED judgment itself is not appealed? The Arizona Court of Appeals recently addressed this question, holding that the court did not have the authority to stay the execution of the FED judgment, because only the denial of an Abeyance/Motion to Set Aside Judgment—and not the original FED judgment—was being appealed.
Tri City National Bank (“TCNB”) became the owner of a property occupied by the Gradys through a trustee sale. Shortly after the trustee sale, TCNB filed an action for FED to remove the Gradys from the property. After the Gradys filed their answer, the trial court granted TCNB’s Motion for Judgment on the Pleadings. The Arizona Court of Appeals subsequently affirmed the trial court’s decision and the Arizona Supreme Court denied review.
But, while the judgment on the pleadings was being appealed, the Gradys also filed a Petition for Special Action, challenging the superior court’s order denying their request for a stay of execution. The Arizona Court of Appeals reversed the superior court’s denial for stay of execution and held that A.R.S. § 12-1182(B) required that the superior court stay execution of a FED judgment while the FED judgment was pending appeal when the party in possession of the property posts a bond sufficient to cover all awarded damages, costs, and rents. Grady v. Barth, 233 Ariz. 318, 322 ¶18 (App. 2013).
After the Supreme Court denied the Gradys’ petition for review of the original FED judgment, TCNB requested a Writ of Restitution to terminate the say of the execution of the FED judgment. In response, the Gradys subsequently filed a Motion for Abeyance/Motion to set Aside Judgment, which the trial court denied. The Gradys then filed a motion for stay of execution of the original FED judgment pending their new appeal of the order denying their Motion for Abeyance/Motion to Set Aside Judgment. The superior court granted the stay because it found that it lacked discretion to deny the stay in light of Grady v. Barth. TCNB subsequently appealed.
The Arizona Court of Appeals reversed the superior court’s granting of the stay because the Gradys were not appealing the FED judgment—which had already been affirmed—but were appealing the denial of their Motion for Abeyance/Motion to Set Aside Judgment. Because the trial court only had the authority to stay execution of the judgment that was on appeal, and the judgment on appeal was the court’s denial of the Gradys’ Motion for Abeyance/Motion to Set Aside Judgment, any stay would merely leave the Gradys’ motion pending. Thus, the Gradys would not be allowed to remain in possession of the property, because any stay of the denial of the Gradys’ Motion for Abeyance/Motion to Set Aside would not affect the original FED judgment.
Accordingly, when seeking to enforce or stay the execution of a FED judgment, litigants should pay close attention to the specific issues on appeal. If the issues on appeal do not include the FED judgment itself, the court may lack the power to stay the execution of a FED judgment.