ARS 12-1182(B) Interpretation
In Tovar v. Superior Court, 132 Ariz. 549, 647 P.2d 1147 (1982), the supreme court held a superior court did not have discretion under A.R.S. 12-1182(B) to deny a stay of an FED judgment pending appeal when the party in possession -- there, a commercial tenant -- could post a bond meeting the requirements of the statute. 132 Ariz. at 552, 647 P.2d at 1150.
In so holding, the supreme court recognized the wording of A.R.S. 12-1182(B) "would justify an interpretation that the trial court has discretion to grant or deny a stay." Id. at 551, 647 P.2d at 1149; see A.R.S. 12-1182(B) ("appeal, if taken by the party in possession of the premises, shall not stay execution of the judgment unless the superior court so orders . . .").
Nevertheless, the court concluded otherwise, explaining A.R.S. 12-1182(B) must be read in conjunction with A.R.S. 33-361, a statute that first, contrary to the common law, allows a landlord to file an action to evict a tenant who fails to pay rent when due or violates a lease provision, and second, authorizes the landlord to commence and conduct the action under the FED statutes. 132 Ariz. at 551, 647 P.2d at 1149.
Because an appealing tenant must file a bond meeting certain requirements to "perfect an appeal" from a judgment entered for the landlord in an action filed under A.R.S. 33-361, the Tovar court concluded the two statutes, read together, led "to the conclusion that the legislative intent is that the tenant is entitled to possession pending appeal, subject to compliance with the statutes by filing a bond in an amount set by the court" sufficient to cover rental value and all damages, costs, and rent. Id. at 551-52, 647 P.2d at 1149-50. Accordingly, the court held the superior court had acted in excess of its jurisdiction in refusing to grant a stay and in failing to set a bond pursuant to the statutory requirements. Id. at 552, 647 P.2d at 1150.