Section 11.15 Appeal

• Jurisdiction: Arizona

The right to appeal and the procedures for prosecuting and defending a condemnation appeal are generally the same as for other civil actions. A.R.S. § 12-2101 etseq. and the Rules of Civil Appellate Procedure apply to condemnation cases.

In addition, A.R.S. § 12-1127 provides certain specific conditions and procedures for the possession of the subject property and the payment of a judgment. Subparagraph A provides for the plaintiff to take possession or continue in possession after payment to the court of the judgment. Subparagraph B permits the defendants to receive the judgment proceeds and provides that such receipt constitutes an “abandonment of all defenses to the action or proceeding except as to the amount of damages to which he may be entitled if a new trial is granted.”

It is constitutional to condition the right to receive payment of the judgment pending appeal on such an abandonment of certain defenses.

Flood Control Dist. of Maricopa County v. Hing, 147 Ariz. 292, 709 P.2d 1351 (App. 1985)

Only a final judgment is appealable in a condemnation action.

Rogers v. Salt River Project Agric. Improvement & Power Dist., 110 Ariz. 279, 517 P.2d 1275 (1974) (an order of immediate possession is not appealable)

De Hansen v. District Court, 11 Ariz. 379, 94 P. 1125 (1908) (an order for immediate possession is not appealable)

Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass’n., 229 Ariz. 525, 278 P.3d 303 (App. 2012) (immediate possession order is not appealable)

Cordova v. City of Tucson, 15 Ariz. App. 469, 489 P.2d 727 (1971) (a partial summary judgment as to the right of plaintiff to condemn which left compensation issues to be resolved by trial was not appealable; such an order can be the subject of a special action)

Payment by the condemning entity of the judgment according to A.R.S. § 12-1127 does not prohibit the condemnor from appealing on the issue of damages. The property owner is entitled to the funds pending appeal, subject to the waiver of certain defenses as noted above.

State ex rel. Morrison v. Jay Six Cattle Co., 85 Ariz. 220, 335 P.2d 799 (1959)

Fisher v. District Court, 4 Ariz. 254, 36 P. 176 (1894)

City of Phoenix v. Johnson, 220 Ariz. 189, 204 P.3d 447 (App. 2009) (condemnee’s right to payment is not subject to the automatic stay provision of Arizona Rule of Civil Procedure 62(g))

State ex rel. Herman v. Jacobs, 7 Ariz. App. 396, 440 P.2d 32 (1968)

However, a property owner in an inverse condemnation case may not be entitled to payment of judgment or fees pending appeal by the government, since the automatic stay provisions of Rule 62(g) apply in such a case.

Pima County v. McCarville, 224 Ariz. 366, 231 P.3d 370 (App. 2010)

Generally, a party may not raise on appeal issues which were not objected to or adequately raised at the trial court.

State ex rel. Herman v. Wilson, 103 Ariz. 194, 438 P.2d 760 (1968) (objections to certain jury instructions obviated by the form of verdicts which were not objected to)

County of Maricopa v. Paysnoe, 83 Ariz. 236, 319 P.2d 995 (1957) (appellate court will not consider whether trial court, as trier-of-fact...