BMO Harris Bank National Association v. Hon. Bluff ex rel. Myers (5/3/2012)
Arizona Court of Appeals Division One Holds A Party Cannot Be Held In Civil Contempt For Expressing Intent To Violate A Court Order in the Future
Brian Myers filed suit to prevent BMO Harris Bank National Association (“BMO”) from proceeding with trustee’s sales of four parcels of real property, based on alleged deficiencies in the foreclosure documents. BMO prevailed in the trial court, but the court stayed the trustee’s sales pending Myers’ appeal.
While the appeal was pending, BMO canceled the original trustee sale notices and issued new notices that purportedly cured the alleged defects in the original notices. Myers applied for a contempt order and sanctions, which the court granted, holding that the reissued notices were “in direct and willful violation” of the stay order. Meanwhile, the Court of Appeals dismissed Myers’ appeal as moot in light of the reissued notices. BMO filed a special action seeking relief from the contempt order.
The Court of Appeals accepted jurisdiction and granted relief. The reissued notices did not violate the trial court’s order staying the trustee’s sales because no such sales were ever conducted. Arizona does not recognize the doctrine of “anticipatory contempt” because intentions can change before an actual violation of a court order and the ends of a contempt judgment are satisfied by contempt proceedings after an actual violation. In order to hold a party in contempt, the party must have actually violated a specific and definite order of the court.
Judge Timmer authored the opinion; Judges Portley and Gould concurred.