US Bank v. Kurtz ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
US BANK NATIONAL ASSOCIATION,
Plaintiff/Appellee,
v.
EVAN A. KURTZ, et al.,
Defendants/Appellants.
No. 1 CA-CV 21-0379
FILED 2-8-2022
Appeal from the Superior Court in Maricopa County
No. CV2018-004772
The Honorable Susan G. White, Judge Pro Tempore, Retired
AFFIRMED
COUNSEL
Evan A. Kurtz, Phoenix
Defendant/Appellant
McCarthy & Holthus, LLP, San Diego, California
By Melissa Robbins Coutts
Counsel for Plaintiff/Appellee
US BANK v. KURTZ, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 Defendant Evan Kurtz1 appeals from the superior court’s
order releasing his supersedeas bond to plaintiff U.S. Bank National
Association (the Bank). Because Kurtz has shown no error, the order is
affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 After purchasing real property at a trustee’s sale in 2018, the
Bank filed this forcible entry and detainer (FED) action against Evan and
Gail Kurtz. The court found them guilty of FED and issued a writ requiring
immediate delivery of possession of the property to the Bank.
¶3 Kurtz moved to stay execution of the writ pending appeal.
After a hearing, the court set a supersedeas bond, including monthly rental
value payments to be made in the future, and granted the stay contingent
upon Kurtz complying with the bond requirements. See Ariz. Rev. Stat.
(A.R.S.) § 12-1182(B) (2022);2 see also A.R.S. § 12-1179(D). Kurtz apparently
deposited the bond amounts, including the monthly rental value payments,
with the clerk of the superior court. After affirming the FED judgment, and
other procedural undertakings, in August 2020, this court issued the
mandate transferring jurisdiction back to the superior court.
1 Though Gail Kurtz is listed as a party, she has not made any filings with
this court. Evan, who is not an attorney, is proceeding as a self-represented
party and cannot represent Gail. See Encinas v. Mangum, 203 Ariz. 357, 359
¶ 8 (App. 2002) (citing cases).
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise cited.
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US BANK v. KURTZ, et al.
Decision of the Court
¶4 In March 2021, the Bank sold most of its interest in the
property to Catamount Properties 2018, L.L.C., but retained its right to the
supersedeas bond proceeds. Kurtz apparently remained in possession of
the property, with Catamount later filing another FED action.
¶5 In April 2021, Kurtz asked the superior court to distribute to
him the supersedeas bond proceeds (including the monthly rental value
payments), claiming the money “lawfully belongs to him” because the Bank
was “no longer prosecuting the action and ha[s] sold the subject property.”
The Bank countered by asking that the proceeds be released to it, noting it
sold the property to Catamount but that “it did not assign . . . the right to
receive the bond payments made by Defendants Kurtz.” After considering
the filings, the court denied Kurtz’ motion and granted the Bank’s request,
releasing the bond proceeds to the Bank.
¶6 This court has jurisdiction over Kurtz’ timely appeal of that
ruling pursuant to A.R.S. § 12-2101(A)(2) and Brumett v. MGA Healthcare,
L.L.C., 240 Ariz. 420, 428-29 ¶¶ 14-15 (App. 2016) (“[C]ompliance with Rule
54(b) or 54(c) is not required for ‘any special order made after final
judgment’ to be appealable under A.R.S. § 12-2101(A)(2).”).
DISCUSSION
¶7 Kurtz argues that “either U.S. Bank no longer had a legal
relationship to the property and thus cannot sustain the lawsuit and is not
entitled to the Bond money or Catamount by virtue of its special warranty
deed did not have a legal relationship and could not bring its forcible
detainer action.” This argument, however, does not account for the fact that
the Bank sold the property to Catamount while retaining the right to the
supersedeas bond proceeds.
¶8 Posting a supersedeas bond permits a party to stay
enforcement of an adverse judgment until the appeals process is complete.
See A.R.S. § 12-1182(B). Doing so here allowed Kurtz to retain possession of
the property during the appeal. See A.R.S. §§ 12-1182; 12-1179(D).
Recognizing a purpose of a supersedeas bond is to secure the payment of a
judgment following its affirmance on appeal, the prevailing party
presumptively is entitled to the bond proceeds after the conclusion of the
appeal. Cf. Bobrow v. Herrod, 239 Ariz. 84, 87 ¶ 13 (App. 2015) (“The purpose
of a supersedeas bond is to preserve the status quo pending appeal.”).
¶9 Here, the appeal process ended in August 2020, when the
mandate issued transferring jurisdiction back to the superior court. That
court then properly could disburse the bond proceeds, which it did in the
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US BANK v. KURTZ, et al.
Decision of the Court
order Kurtz challenges in this appeal. Thus, Kurtz has not proven that these
issues were “never settled or disposed of” or that the purpose of the stay
implemented by the supersedeas bond remains. See Tri City Nat’l Bank v.
Barth, 237 Ariz. 90 (App. 2015) (finding superior court lacked authority to
stay execution of a judgment not currently pending appeal).
¶10 Moreover, although the Bank sold its interests in the property,
it represented that it retained the right to the bond proceeds and the record
contains no genuine dispute of that representation. Thus, although the Bank
has a claim to the bond proceeds, Catamount would not. Conversely, the
Bank has no possessory interest in the property, although Catamount may.
On this record, the Bank is entitled to the proceeds of the supersedeas bond
paid to the superior court. See also ARCAP 7(b)(1) (noting stay imposed by
supersedeas bond expires upon the issuance of the appellate court
mandate); Ariz. R.P. Evict. Act. 17. Thus, Kurtz has shown no error in the
superior court’s ruling disbursing the supersedeas bond proceeds to the
Bank.
CONCLUSION
¶11 The ruling releasing the supersedeas bond proceeds to the
Bank is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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