Forcible Detainer Appeals: Representing Yourself
Prepared by Community Legal Services Housing Unit
1. Determine Whether You have an Appealable Issue
This web article will tell you how to appeal a Forcible or Special Detainer case from a Justice Court if you are a residential tenant who has been evicted. You do not need an attorney to represent you in Justice Court or on your appeal to Superior Court. However, persons who represent themselves (especially in Superior Court) are held to the same standard as attorneys. The clerks at both the Justice Courts and Superior Courts are not attorneys and are prohibited from giving legal advice. They will not be able to assist you in the preparation of your case, nor give you advice on how to proceed.This web article tells you how to file an appeal of a Forcible or Special Detainer case in nine steps. Read through all nine steps before you decide to appeal your case. Start with step one and proceed through the nine steps in the order they are set out in this pamphlet. There are deadlines for completing some of the steps outlined below. Be sure to calculate your deadlines. If you miss a deadline, you will probably lose your appeal.
Steps in the Process
1. Determine Whether You Have an Appealable Issue
Before you file an appeal of the court's decision, you should determine whether you have a good reason to appeal your case. If the court determines that you have filed a "frivolous" appeal, you could be ordered to pay a fine and additional court costs and attorney's fees. You can obtain a free copy of the Arizona Residential Landlord and Tenant Act by calling the Secretary of State's Office at (602) 542-4086 or click here to go to the web site. You should review the Act to determine whether you have an appealable issue.
Many appealable issues concern proper notice and counterclaims. A.R.S. § 33-1368 tells what notice a landlord is required to give you before you can be evicted for not paying rent or for a breach of a lease agreement. If you have not received proper notice, you may have an appealable issue. Also, if the Justice Court does not listen to a counterclaim which you have filed against your landlord, you may have an appealable issue. A.R.S. § 33-1361 through § 33-1367 describe the counterclaims available to tenants.
2. File Your Notice of Appeal at the Justice Court
You must file your notice of appeal within five (5) calendar days of the Justice Court's decision in the eviction case. The five (5) days includes weekends and holidays. In the center of this brochure is a form called "Forcible/Special Detainer Appeal," which you may use to file your notice of appeal. If your judgment states that the Writ of Restitution will be issued before those five calendar days are up, you must file your notice of appeal and post your supersedeas bond (see pp. 2-3) before the date the Writ is to be issued to make sure you don't get evicted.
3. Pay a Cost Bond to the Justice Court
You must file a bond to cover any costs on appeal. Call the clerk of the Justice Court to determine how much the cost bond will be.
If you are too poor to pay a cost bond, you can ask the court to waive the cost bond. The Justice Court has a form you can file requesting that the cost bond be waived. You should be able to get your fees waived if you receive food stamps, AFDC, general assistance, or SSI benefits, or if your income is insufficient or barely sufficient to meet the daily essentials of life. If the landlord objects to waiving the cost bond, a hearing will be scheduled at Justice Court. You will need to attend the hearing and prove to the court that you receive the benefits listed above or that you are too poor to pay.
4. Pay a Supersedeas Bond to the Justice Court to Stop Your Landlord From Evicting You or Collecting Money
If you want to stop the eviction or stop your landlord from collecting any money from you that was ordered in the judgment, you must pay a "supersedeas bond". The purpose of this bond is basically to protect the landlord's interest during the appeal. At the conclusion of your appeal, the Judge will determine who is entitled to receive this money. You can still appeal a case without paying a supersedeas bond but you will have to move out of your home and your landlord could begin to take the steps necessary to collect any money ordered in the judgment. The appeal would then only concern whether the rent, court costs or attorney fees ordered by the Justice Court were proper. Following is an explanation of how much your supersedeas bond should be depending on whether you want to stop the eviction, stop a garnishment, or both stop the eviction and stop a garnishment.
a. To stop the eviction:
If you want to stop the eviction, you will have to pay the amount of rent which comes due from the date of the judgment until the next periodic rental date, plus any costs and attorney's fees ordered in the judgment. (Review your judgment to determine if the court ordered you to pay costs and attorney's fees.) For example: Suppose you pay your rent on the first of every month in the amount of $300 and the Judge found that you owe $500 for rent and $100 for attorney's fees and $65 for court costs. Suppose, also, that the judgment in your case was signed on July 15th. You would have to pay the following amount for your supersedeas bond:
$150 (Rent Owed From July 15 to August 1)
(You do not have to pay the $500 that the Judge ordered you to pay for rent owed unless you also want to stop your landlord from garnishing your wages or certain other assets.)
b. To stop a garnishment:
If you were ordered to pay your landlord past rent or other money damages and you want to stop your landlord from garnishing your wages or certain other property while the appeal is pending, you will have to pay a supersedeas bond in the amount of the judgment, plus any costs and attorney's fees ordered in the judgment. (A.R.S. §§ 33-1121 to 33-1133 describe what income and property is exempt from garnishment.) If you have questions or concerns about garnishment, you may wish to consult an attorney. Review your judgment to see what the Justice Court ordered you to pay your landlord. For example: Suppose the Judge ordered you to pay $500 for rent that you owe and $100 attorney's fees and $65 court costs. You would have to pay the following amount for your supersedeas bond:
$500 (Amount of the Judgment)
c. To stop the eviction and stop a garnishment:
If you want to both stop the eviction and stop your landlord from garnishing your wages or assets, you will have to pay a supersedeas bond in the amount of the judgment, rent that you owe from the date of the judgment until the next periodic rental date, attorney's fees and court costs. Using the above example, you would have to pay the following amount for your supersedeas bond:
$500 (Amount of the Judgment)
If your landlord or the landlord's attorney disagrees with the amount you have calculated for your supersedeas bond, you can ask the Justice Court to have a hearing to decide how much you need to pay.
You should pay your supersedeas bond when you file your notice of appeal and within five (5) calendar days of the Justice Court's decision in your case. The five (5) days includes weekends and holidays. The court will not waive the payment of supersedeas bond even if you are too poor to pay. The eviction will not be stopped until your supersedeas bond is paid. Your judgment tells you the date the Writ of Restitution can be issued, which is the earliest date that you can be forcibly removed by the constable. If this date is less than 5 days from the date of the judgment, you should post the bond sooner than the 5-day limit in order to make sure you don't get evicted.
5. Transmission of the Record to Superior Court
The Justice Court should forward the record (i.e., the papers, exhibits, and other objects filed with the Justice Court) to the Superior Court within ten (10) days after you file your notice of appeal. You might want to check with the Clerk's Office of the Superior Court to make sure the record was received on time.
Most Justice Courts tape record their trials. A transcript of this tape recording must be prepared in all cases appealed to the Superior Court. Arizona law states that the cost of the transcript is a cost that may be waived if you obtain a fee waiver. You should check with the Superior Court to make sure that the transcript is prepared. If the transcript is not prepared, you should file a motion with the Superior Court to compel the Superior Court to prepare the transcript. If this doesn't work, you should probably consult an attorney for advice on how to proceed.
6. Pay Any Filing Fees and Fees for the Transcript Owing to Superior Court
After the notice of appeal is filed and bonds are paid, the Justice Court will send your case to the Superior Court to be heard on appeal. The Superior Court will notify you of any fees that you owe. You will need to pay those fees to Superior Court. If you are too poor to pay the fees, you can request that the fees be waived. The Superior Court has a form you can fill out to request that the fees be waived. Make sure that you request that both your filing fee and your fees for the transcript of the hearing are waived.
If you do not pay your fees to Superior Court or have them waived, your case may be dismissed.
7. Pay Your Rent to Superior Court
If you plan to remain in your home pending your appeal and you have filed a supersedeas bond to stay the eviction, you must pay your rent when it becomes due to the Superior Court. The Superior Court may release this money to your landlord each month, or it might wait and decide who gets this money at the end of the appeal process. You must pay your rent on or before the due date. If you don't pay your rent when it is due, the court may lift the stay of execution and you can be evicted.
8. File an Appellate Memorandum with Superior Court
You must file an Appellate Memorandum with Superior Court within thirty (30) days after you filed your notice of appeal. (When counting the thirty (30) days, you must include weekends and holidays.) In the Forms and Letters section is a form you can use to file your memorandum. Following is a brief description of how to fill out the Forcible Detainer Appeal Memorandum form.
Put your name as the appellant. Put the name your landlord used on the forcible detainer Summons and Complaint as the appellee. If you do not know your case number, call the Superior Court to find out. (This number will be different from the number used in Justice Court.)
You can request to have a hearing in your appeal before the Judge makes a decision. If you want a hearing, check the box "Oral Argument Requested" under the case number and Appellant's Memorandum on the first page. Otherwise, check the box "Oral Argument Not Requested." If neither you nor your landlord request a hearing, the Judge can decide your case based on all the papers and evidence in the file. You will receive the Judge's decision in the mail. If you have requested an oral argument, the Court will send you notice of the date scheduled for your hearing. You will not be allowed to bring witnesses to testify at this type of hearing. You have to rely on the testimony of the witnesses in your original hearing at Justice Court. The Judge should have a transcript of your hearing.
In the Statement of the Case section, write down when your hearing was held in Justice Court and what the Judge ruled. Also tell about any motions you filed and how the Judge ruled on your motions.
In the Statement of Facts section, write down all the facts that you think are important for the Judge to make a decision in your case. Write this in a concise, logical way. It is usually a good idea to start at the beginning and explain everything in the order it happened.
In the Statement of Issues Presented for Appeal section, write down all the questions you have concerning how the Justice Court ruled in your case.
In the section titled Reasons Why the Justice Court Ruled Incorrectly, state why you think the Justice Court was wrong. It is a good idea to write down any statutes you have that show why the Justice Court was wrong. For example, if you believe that the Justice Court failed to follow any of the provisions in the Arizona Residential Landlord and Tenant Act, you should refer to the provisions by number and state why you think they are important to your case.
In the Conclusion, write down how you want the Judge to decide your case.
If you need more space for any of the above sections, you can add in pages. However, your memorandum must not be longer than 15 pages.
Be sure to sign your Memorandum, and sign and fill out the Certificate of Mailing page. Make three additional copies of your memorandum. File the original memorandum at Superior Court. Find out from the clerk which Judge is assigned to your case. Deliver a copy of the Memorandum to the Judge who will hear your case. Send a copy of the Memorandum to your landlord or the attorney if your landlord has one. Keep one copy for your records.
9. If Necessary, File a Reply Memorandum with the Superior Court
If the landlord files a Response to your memorandum, you may file a Reply Memorandum with the Superior Court, responding to any issues raised in the landlord's memorandum. The Reply cannot exceed five (5) pages in length, and must be filed within five (5) days of the date the landlord's memorandum was filed (not counting weekends and holidays), plus five (5) days (counting weekends and holidays) if you received the landlord's memorandum by mail.
Remember to sign, copy, and distribute the Reply Memorandum following the same instructions as those provided for the Appellate Memorandum.
If you have any questions concerning specific issues in your case, you may wish to consult an attorney.
All information contained in this article is derived from The Arizona Residential Landlord and Tenant Act and Forcible Entry and Detainer Statutes (revised January, 2003), and the Arizona Rules of Civil Procedure. You can obtain a copy of the Landlord-Tenant Act from the Arizona Secretary of State's Office in Phoenix 602-542-4086, or you can look up the Act in the Arizona Revised Statutes (A.R.S. §§ 33-1301 to 33-1381 and §§ 12-1171 to 12-1183), copies of which are available in the reference sections of most public or law libraries in the State. The information in this article was accurate as of the date printed, January, 2003.
Revised January, 2003