AOR DIRECT L.L.C., an Arizona limited liability company, Petitioner,
THE HONORABLE LORI HORN BUSTAMANTE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, BUTEO L.L.C., an Arizona limited liability company; SCOTT G. MILLER and JENNIFER MILLER, husband and wife, Real Parties in Interest.
for Special Action from the Superior Court in Maricopa County
No. CV 2013-008508 The Honorable Lori Horn Bustamante, Judge
Quarles & Brady LLP, Phoenix By Isaac M. Gabriel Counsel
Fennemore Craig, P.C., Phoenix By Gerald L. Shelley,
Alexander R. Arpad, Todd Kartchner, Courtney R. Beller
Counsel for Real Parties in Interest
Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Kent E. Cattani
AOR Direct, LLC seeks special action relief from the trial
court's setting the amount of the supersedeas bond that
Buteo, LLC and Scott and Jennifer Miller (collectively,
"Buteo") must post at less than half of the total
damages awarded to AOR. AOR argues that A.R.S. § 12-2108
and Arizona Rule of Civil Appellate Procedure 7 mandate that
the supersedeas bond amount be set as $614, 687.07, the total
amount of damages awarded to AOR, the prevailing party.
We accept special action jurisdiction because AOR challenges
the setting of a supersedeas bond, see City Ctr. Exec.
Plaza, LLC v. Jantzen, 237 Ariz. 37, 39 ¶ 2, 344
P.3d 339, 341 (App. 2015), and has "no equally plain,
speedy and adequate remedy by appeal, " Ariz. R. P.
Spec. Act. 1(a). Because the trial court erroneously set the
supersedeas bond at the total amount of damages awarded, less
the amount of a prejudgment provisional remedy bond
previously released to AOR and an attorneys' fees award
from a separate action, we grant relief to AOR and vacate the
court's order. We remand the matter for the trial court
to set the supersedeas bond at $614, 687.07, the total amount
of damages awarded to AOR.
AND PROCEDURAL HISTORY
In January 2012, AOR lent Buteo $400, 000. Buteo signed a
promissory note for the loan and Scott Miller signed the
guaranty, both promising to repay AOR the money at 8%
interest per year, but if Buteo were to default, the interest
would rise to 17% per year. The note matured on December 15,
2012, and stated that the "amount of each payment
received shall be applied by [AOR] first to any costs and
expenses of [AOR] for which [Buteo] is responsible hereunder,
and thereafter to pay interest hereunder, in arrears, and
thereafter to unpaid principal hereunder." The note
further stated that "[Buteo] shall pay all costs and
expenses, including attorneys' fees and court costs
incurred in the collection or enforcement of all or part of
this Convertible Note."
In 2013, AOR sued Buteo for breach of the note and breach of
the guaranty and applied for a prejudgment provisional remedy
in the form of a writ of attachment for Buteo's personal
property ("2013 case"). AOR alleged that Buteo
defaulted on its obligations under the note by failing to
make timely payments and to pay all amounts due upon
maturity. As relief, AOR requested judgment in the principal
sum of $400, 000, accrued and accruing interest and late
fees, any other costs, and attorneys' fees pursuant to
the loan documents and A.R.S. § 12-341.01.
After an evidentiary hearing, the trial court granted
AOR's application for a prejudgment provisional remedy.
The court ordered that a writ would attach to all of
Buteo's personal property and all amounts due to or
payable to Buteo on account of his ownership interest in any
entity, unless Buteo agreed to post a $200, 000 bond as
security for "any judgment" that AOR obtained.
Buteo agreed to post the $200, 000 bond, and the court
ordered that the provisional remedy bond "remain in
place through . . . judgment of this matter or upon further
order of the Court."
Buteo filed a counterclaim, and in July, AOR moved for
summary judgment on its two breach of contract claims. The
trial court granted summary judgment in October, but declined
to certify the judgment under Arizona Rule of Civil Procedure
54(c) because of the pending counterclaim. See Ariz.
R. Civ. P. 54(c) ("A judgment shall not be final unless
the court states that no further matters remain pending and
that the judgment is entered pursuant to Rule 54(c).").
After intervening litigation and almost two years later in
December 2014, AOR brought another action against Buteo,
requesting that the trial court appoint a receiver to manage
the company and dissolve Buteo's
limited-liability-company status ("2014 case"). In
September 2015, the trial court dismissed Buteo's
counterclaim and entered a final judgment in AOR's favor
in the 2013 case. The court awarded AOR $614, 687.07 in
damages, consisting of $400, 000 in principal and $214,
687.07 in accrued interest; $224, 840 in attorneys' fees;
and $5, 890.91 in taxable costs. It also awarded AOR
post-judgment interest. The court ordered that the $200, 000
provisional remedy bond "be released immediately to
AOR" "to be applied against the Judgment amounts
stated herein." In the same judgment, the court also
dismissed the 2014 case with prejudice.
The court subsequently amended its previous final judgment
removing its order dismissing the 2014 case and issued
another final judgment in the 2014 case in Buteo's favor.
The court awarded Buteo $116, 627.21 in attorneys' fees,
$394.08 in ...