While only a small percentage of forcible detainer cases are appealed, it is important to know the appellate procedure and your rights as a landlord. Either party to an eviction action may appeal the court’s decision. Usually, appeals are only filed by tenants. My job as it relates to appeals is usually to defend the judgment of the trial court and obtain possession for the landlord at the earliest possible time. For this article I will assume that it is the tenant appealing, but that is not always the case.
The importance of knowing about your rights during an appeal, is because a tenant appealing a forcible detainer judgment can potentially stay in the property during the pendency of the appeal. Assuming the tenant follows all of the correct steps, the entire appellate process takes between 4-8 months. Subject to some conditions, if the tenant pays bonds into the court and pays their monthly rent, then they are allowed to stay in your property – even if the trial court just granted judgment in your favor. Of course, there are numerous hoops that a tenant must jump through before they can stay in the property. If they fail to properly follow the applicable statutes, a landlord can seek to have the trial court execute the writ of restitution and get possession of the property. (The Supreme Court is currently reviewing a set of proposed rules which would affect tenant’s rights to possession on appeal from a judgment for immediate and irreparable breaches. For more information on this, contact my office.)
A common misconception is that an appeal is a means for the parties to have a new trial or a second opportunity to present new evidence. This is not the case. It simply allows the tenant to submit a written explanation to an appellate court containing legal and factual arguments as to why the trial court made a mistake. Unfortunately, tenants will often file appeals thinking that it will get them a new trial or that it will delay the eviction process. To combat these issues, its necessary to be fully educated regarding the relevant law to ensure that you are fully protected.
Under A.R.S. § 12-1179, within five days of judgment, the tenant must file a Notice of Appeal and pay a cost bond to the court or get a waiver of the bond. If the tenant fails to do so, they waive their right to appeal the underlying judgment. The Notice of Appeal does not contain any legal arguments; it only notifies the court that they are appealing the judgment. Pursuant to A.R.S. § 12-1179(D), if a tenant wants to stay in the property during the appeal and prevent execution of the writ, they can pay a supersedeas bond, which is set by the court. Additionally, each month during the appeal the tenant has to pay their rental amount into the court to stay in the property. By motion, this monthly amount can then be released by the court to the landlord. If a payment is not made, the landlord can seek the writ of restitution.
It is important to recognize that even if the tenant fails to pay the rent and loses possession, it does not affect the appeal of the judgment. Even if they lose possession, they can still present their arguments to the appellate court that the judge erred in entering judgment. If a tenant is removed via a writ, but is then successful on their appeal, they may have a claim for wrongful eviction. While I personally have never seen this happen, it is an important to analyze this possibility when deciding how to handle an appeal.
Assuming all of the proper steps are followed, the tenant has 60 days to file a memorandum explaining why the judge’s decision was incorrect. This is usually something that causes problems for unrepresented tenants. They often write for pages about every problem imaginable, but fail to raise a specific legal argument or they raise a legal issue but include it among other irrelevant issues. A landlord has 30 days to respond with their own memorandum. This is often difficult because the landlord has to respond to all of the issues raised, while remembering to focus on the relevant legal arguments. A tenant may be given the opportunity to respond to the landlord’s memorandum.
Once all of the steps have been followed and all the memorandums have been filed, the appellate court will review the case. If they find that there is no error, they will return the case to the trial court to execute the judgment. If they find an error, they will often send it back for another trial or allow the tenant to stay.
As I stated above, tenants often file appeals because they believe it will buy them additional time in the property. However, there are numerous procedural steps they must follow before the appellate court will review the case. As a landlord, on the other hand, you must carefully follow the status of the appeal to ensure that you file all memorandums and motions on time. The failure of a tenant or a landlord to complete one of the appellate procedures can result in a judgment against that party or can otherwise delay the time you get possession of your property back.