Starr Pass Resort Devs., LLC v. Harrington – 10/10/2018

November 5, 2018

Arizona Court of Appeals Division Two holds that a party can use property to post a supersedeas bond.

After the superior court entered judgment against them, petitioners requested leave to use property (rather than cash) to meet their supersedeas bond requirement.  The superior court denied that request, holding that the enactment of A.R.S. § 12-2108 and associated changes to ARCAP 7 prohibited property bonds.  Petitioners filed this special action. 

The Court of Appeals held that the superior court erred as a matter of law.  ARCAP 7 allows a trial court to “enter any further order, in lieu of or in addition to the bond, which may be appropriate to preserve the status quo or the effectiveness of the judgment,” and to “consider whether there is other security for the judgment, or whether there is property in controversy which is in the custody of the sheriff or the court.”  ARCAP 7(a)(2), 7(a)(5)(C).  The Court held that these provisions allow for property bonds. 

(The Court construed the version of ARCAP 7 currently in effect.  The latest version of ARCAP 7, which will go into effect on January 1, 2019, expressly permits a trial court to allow “other types of security” in lieu of a cash bond.)

The Court also held that A.R.S. § 12-2108 does not prohibit property bonds.  That section establishes the method for calculating the amount of a supersedeas bond but does not specify whether that amount need be provided in cash.  In fact, allowing property bonds is consistent with the purpose of § 12-2108, which (as stated in its findings) was to prevent “overly large” bonds from “infring[ing] on the due process rights of appellants.”     

The Court therefore accepted jurisdiction, granted relief, and held that ARCAP 7 allows for property bonds.

Judge Eppich authored the opinion of the Court, in which Judges Vásquez and Espinosa joined.