This problem with supersedeas bond law has been fixed but the fix isn’t effective until January 1, 2019. So the court accepted this special action to address the issue.

Defendant lost below (we simplify a bit; there were many parties to this lengthy and complex case). They sought to file a property bond (i.e., a supersedeas bond secured by property rather than a cash bond). Salt River (App. 2009) concluded that this was permissible under prior ARCAP 7, which allowed the court to alter the amount and conditions of the security. But then, in 2011, the legislature passed 12-2108 specifying the amount of supersedeas bonds and in response Rule 7 was amended effective 2012, leaving out the language that Salt River relied on. So Plaintiff argued that the trial court could not allow a property bond. The trial court agreed. Defendant filed special action.

The Court of Appeals accepts it and grants relief. The present rule permits the 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 . . .” (The court for some reason also cites similar language from the 2012 version of the rule, which was replaced almost three years ago. In fact, it cites the old language first and seems to treat the new as more important that the old.)

The court also concludes that Rule 7 is consistent with the statute. The statute “provides the method necessary for calculating the amount of the bond” but does not require that it be in cash. And the statute was arguably intended to make supersedeas bonds easier, not harder. (The rule may actually go beyond the statute a bit but its effect is to add some old-fashioned flexibility around the edges, for cases that the statute’s Procrustean formula doesn’t quite handle.)

Effective next year the rule will expressly permit “other types of security.”

(Opinion: Starr Pass Resort Developments, L.L.C. v. Harrington)