Pima County v. McCarville – 4/20/2010

April 27, 2010

Arizona Court of Appeals Division Two Holds That Money Judgments in Inverse-Condemnation Actions Against the State or an Agency or Political Subdivision Thereof Are Stayed on Appeal Under Arizona Rule of Civil Procedure 62(g).

The real parties in interest, Dos Picos Land Limited Partnership, and Harry and Patricia Shepard (collectively, “Dos Picos”), brought an inverse condemnation action against Pima County based on a County ordinance restricting access to and development of Dos Picos’s property.  The trial court ruled as a matter of law that the County’s actions constituted a taking of a portion of the property.  A jury determined the property’s fair market value, and the trial court entered judgment for that amount, plus sums for appraisal and engineering fees, nontaxable costs, and attorneys’ fees pursuant to A.R.S. § 11-972(B); $6,162.70 for taxable costs under A.R.S. § 12-341; and interest at a rate of ten percent per annum on all amounts.  The County filed a notice of appeal challenging only the awards under A.R.S. § 11-972(B) and the award of interest on all amounts included in the judgment.  The County paid all other amounts of the judgment.  Dos Picos file a “motion to enforce payment of judgment” on the unpaid amounts, which the Superior Court granted.  The County timely filed a special action.         

The ArizonaAppeals Court accepted jurisdiction of the special action and granted relief because the issue presented was a purely legal and potentially recurring question and because the County had no comparable remedy by appeal.  The Court held that the County was not required to pay the amounts in the judgment it was appealing because under Arizona Rule of Civil Procedure 62(g), “[m]oney judgments against the state or agency or political subdivision thereof, are automatically stayed when an appeal is filed.”  The Court rejected Dos Picos’s argument that it was entitled to immediate payment under City of Phoenix v. Johnson, 220 Ariz. 189, 204 P.3d 447 (App. 2009) and A.R.S. § 12-1127.  Johnson held that A.R.S. § 12-1127 provided a condemnee the substantive right to immediately receive money from a public entity in a direct-condemnation action and that Rule 62(g) was not enforceable because it impinged on that substantive right.  In this case, the Court explained that Johnson was distinguishable because it was a direct-condemnation action rather than an inverse-condemnation action, and thus no statute conflicting with Rule 62(g) applied to this case.  Furthermore, the Court declined to apply A.R.S. § 12-1127 to inverse-condemnation actions because doing so was not necessary to effectuate the spirit and purpose of the law of eminent domain, and because another statute governing inverse-condemnation actions – A.R.S. § 11-972(B) – did not require payment before an appeal.

Judge Kelly authored the opinion; Chief Judge Howard and Presiding Judge Espinosa concurred.