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Last Post 02 Mar 2018 03:37 PM by  EileenGilBride
R-18-0017 Petition to Amend Rule 7, ARCAP, and Rules 62 and 69, Ariz. R. Civ. P.
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Author Messages
State Bar of Arizona
New Member
Posts:47 New Member

10 Jan 2018 03:43 PM
    Lisa M. Panahi, Bar No. 023421
    General Counsel, State Bar of Arizona
    4201 N. 24th St., Suite 100
    Phoenix, AZ 85016

    Would clarify the appeal bond scheme and computation of bond amounts, adopt aspects of Fed. R. Civ. P. 62, and create an automatic discovery stay.

    Filed January 10, 2018

    Comments must be submitted on or before May 21, 2018.
    New Member
    Posts:1 New Member

    02 Mar 2018 03:37 PM
    Eileen Dennis GilBride
    40 North Central Ave., Ste. 2700
    Phoenix, AZ 85004
    (602) 263-1787
    Bar #009220

    This amendment has been sorely needed ever since the statute was enacted and the corresponding rule change was adopted. The unfortunate result of the current language has been that defendants who successfully defeat a claim and are awarded attorneys' fees or any kind of sanctions (including Rule 68 sanctions) are unable to require the plaintiff to post a bond during the pendency of an appeal, to protect the defendant's ability to collect such award when the appeal is over. This is so, even if the defendant has been awarded fees because the trial court has found plaintiff's claim to be frivolous. In other words, a plaintiff who has brought a frivolous claim and been sanctioned for it can cause further 'damages' to the defendant by prosecuting a frivolous appeal with no skin in the game. This undermines the purpose of supersedeas bonds to protect the successful party's ability to collect a judgment during the pendency of an appeal. I have two suggestions, however. First, add the word "sanctions" to section 7(a)(4)(A) to ensure that the successful party's right to collect those is as protected during the pendency of the appeal as fees costs, and pre-judgment interest. Second, add to that section "plus anticipated post-judgment interest accruing during the pendency of the appeal." Because the judgment will be accruing post-judgment interest during the pendency of the appeal, there is no reason to omit that amount from the bond. The successful party's ability to collect accruing interest is an important right that should be protected.