IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SANDY G. KELLIN, Petitioner, 

v.

THE HONORABLE STEVEN LYNCH, Judge Pro Tempore of the 

SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County 

of MARICOPA, Respondent Judge, 

AMERICANWEST BANK, f/k/a BANNER BANK, successor by merger 

to AMERICANWEST BANK, Real Party in Interest. 

No. 1 CA-SA 19-0143 

Petition for Special Action from the Superior Court in Maricopa County

No. CV2014-095947 

The Honorable Steven P. Lynch, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Clark Hill PLC, Scottsdale

By Ryan J. Lorenz

Counsel for Petitioner

Snell & Wilmer L.L.P., Phoenix

By Steven D. Jerome, Benjamin W. Reeves, and James G. Florentine

Counsel for Real Party in Interest

FILED 9-10-2019
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

2 

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in 

which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann joined.

M c M U R D I E, Judge: 

¶1 Sandy Kellin requests special action relief from two superior 

court orders. Kellin challenges a superior court order setting supersedeas 

bonds of $50,000 each on Kellin’s appeals from two judgments of 

garnishment against two financial institutions, BMO Harris Bank, N.A. 

(“BMO”) and Betterment LLC (“Betterment”). Kellin and his wife, Robyn 

Kellin (collectively, the “Kellins”), held accounts with these institutions. 

This court issued an order accepting jurisdiction but denying relief with a 

decision to follow. This is that decision. We hold: (1) Arizona Rule of Civil 

Appellate Procedure (“Rule”) 7(a)(6) affords the superior court discretion 

to set a supersedeas bond to cover an estimate of attorney’s fees and costs

that may be incurred in an appeal, provided a basis to award such fees and 

costs is authorized; and (2) in an appeal from a judgment of garnishment, 

Arizona Revised Statutes (“A.R.S.”) section 12-1580(E) authorizes an 

appellate award of attorney’s fees.1

FACTS AND PROCEDURAL BACKGROUND

¶2 In September 2014, Banner Bank (“Banner”)2 domesticated a 

Utah deficiency judgment against Kellin for $1,285,777.89, plus 

post-judgment interest. The outstanding balance on the judgment as of 

April 2019 was calculated to be $2,415,615.15. Banner’s efforts to collect the 

 

1 Kellin also challenges the superior court’s refusal to sign its order 

denying a motion for a new trial. We decline to determine if the court 

abused its discretion by refusing to sign its order denying Kellin’s motion 

for new trial concerning a series of charging orders issued by the court. The 

court explicitly authorized Kellin to file a motion to reconsider providing

legal authority requiring the court to sign such an order. Kellin did not file

a reconsideration motion.

2 Banner is the successor-by-merger to the original party to this action, 

AmericanWest Bank. 
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

3 

judgment have been strenuously contested, and the litigation has generated 

three separate appellate decisions and petitions for review that deserve a 

brief discussion.

¶3 In American West Bank v. Kellin (“Kellin I”), No. 1 CA-CV 

18-0060, 2018 WL 6787394 (Ariz. App. Nov. 27, 2018) (mem. decision), the 

Kellins argued Banner was barred from enforcing its judgment against any 

of their community property by Arizona Revised Statutes (“A.R.S.”) section 

§ 25-214(C)(1), which requires joinder of both spouses to bind the 

community to “[a]ny transaction for the acquisition, disposition or 

encumbrance of an interest in real property other than an unpatented 

mining claim or a lease of less than one year.” This court held that because 

the underlying transaction that gave rise to Banner’s deficiency judgment 

“did not constitute a transaction for the acquisition, disposition or 

encumbrance of an interest in real property . . . the protections of A.R.S. 

§ 25-214(C)” did not apply, and the deficiency judgment could be enforced 

against the Kellins’ community. Kellin I, 2018 WL 6787394, at *2, ¶ 12.

¶4 In American West Bank v. Kellin (“Kellin II”), No. 1 CA-CV 

18-0481, 2019 WL 1341803 (Ariz. App. Mar. 26, 2019) (mem. decision), Kellin 

raised the same argument from Kellin I to challenge an order denying a 

motion to quash a writ of special execution against real property and a 

charging order against the Kellins’ membership interests in a limited 

liability company under A.R.S. § 29-655. This court held that the “law of the 

case” doctrine barred the parties from relitigating the enforceability of the 

judgment against the Kellins’ community property and affirmed the 

superior court’s orders. Kellin II, 2019 WL 1341803 at *3–4, ¶¶ 13–16. 

¶5 Finally, in Kellin v. Banner Bank (“Kellin III”), No. 1 CA-CV 

18-0356, 2019 WL 1341800 at *5, ¶ 21 (Ariz. App. Mar. 26, 2019) (mem. 

decision), this court held that a declaratory judgment action filed while the 

enforcement proceedings were ongoing was an impermissible attempt to 

horizontally appeal the superior court’s rulings in the enforcement 

proceedings.

¶6 The Kellins filed petitions for review from Kellin I, Kellin II, 

and Kellin III. On July 8, 2019, the Arizona Supreme Court denied Kellin’s 

petition for review from Kellin I. Whether this court correctly resolved the 

issue in Kellin I is not subject to further review. Therefore, the holding that 

the Kellins’ community property can be used to satisfy Banner’s deficiency 

judgment is final. 
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

4 

¶7 The proceedings at issue in this special action occurred during 

and shortly after the appeals in Kellin II and Kellin III. Banner filed 

applications for writs of garnishment against BMO and Betterment, 

alleging that each financial institution was “holding nonexempt monies on 

behalf of [Kellin].” A.R.S. § 12-1572(2)(b). After litigation over Kellin’s 

objections and motions to quash the writs of garnishment, the court entered 

judgment against garnishee BMO for $72,744.31 and garnishee Betterment 

for $409,385.83. Kellin filed notices of appeal from both judgments and 

moved to set or waive a supersedeas bond to stay enforcement of the 

judgments under Rule 7. Kellin argued that under Rule 7(a)(6), the court 

was not required to set supersedeas bonds for each judgment because the 

garnished funds themselves, which would remain frozen in BMO and 

Betterment’s possession, were an adequate bond. In response, Banner 

argued that the court was required to set the supersedeas bond for each 

judgment at the respective amounts awarded under Rule 7(a)(4). In the 

alternative, Banner argued that under Rule 7(a)(9) the court should set the 

bond for each judgment at the respective amounts awarded because of 

overwhelming evidence that “the Kellins have attempted to intentionally 

dissipate and conceal assets to avoid paying [the Utah] Judgment.”

¶8 After considering the argument regarding the motions for a 

stay, the court issued the following order:

Based upon the matters presented today, the review of all 

pleadings, and pursuant to A.R.S. Civ. P. Rule 7.[3]

IT IS ORDERED that the Kellins[] post bond in the amount of 

$50,000.00 on each of the current garnishments, totaling 

$100,000.00. Bond must be posted no later than Friday, June 

21, 2019. 

The Kellins then filed the petition for special action and requested that this 

court vacate the order setting the $50,000 supersedeas bonds. Kellin also 

requested this court order the superior court to waive posting of the 

supersedeas bonds and instruct BMO and Betterment to retain the 

garnished monies pending the outcome of Kellin’s appeals.

 

3 It appears that the court’s citation to “Civ. P. Rule 7” was in error. It 

is apparent from the context it was citing Arizona Rule of Civil Appellate 

Procedure 7.
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

5 

DISCUSSION

A. A Challenge to the Setting of a Supersedeas Bond is Appropriate for 

Special Action Jurisdiction.

¶9 “Special action jurisdiction is proper when a party has no 

‘equally plain, speedy, and adequate remedy by appeal . . . .’” Phillips v. 

Garcia, 237 Ariz. 407, 410, ¶ 6 (App. 2016) (quoting Ariz. R.P. Spec. Act. 1(a)). 

A challenge to a supersedeas bond is a matter appropriate for special action 

jurisdiction. Chula Vista Homeowners Ass’n v. Irwin, 245 Ariz. 249, 250, ¶ 1 

(App. 2018); City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 40, ¶ 2 (App. 

2015). Special action jurisdiction is also proper here because this case 

requires interpretation of recent substantive amendments to Rule 7, a 

matter of statewide importance and first impression. See Alsarraf v. Bernini, 

244 Ariz. 447, 448, ¶ 1 (App. 2018). 

B. The Court of Appeals’ Authority to Award Attorney’s Fees in Appeals 

from Garnishment Proceedings Justified the Setting of the $50,000 

Supersedeas Bonds.

¶10 Kellin argues the superior court abused its discretion by 

imposing the $50,000 supersedeas bonds because the purpose of setting a 

supersedeas bond has already been accomplished by the garnishment 

judgments against BMO and Betterment. Kellin contends that because the 

judgments themselves “are the bond,” the court lacked the authority under 

Rule 7 to require Kellin to post additional $50,000 bonds to stay 

enforcement of those judgments. Thus, Kellin concludes, the court acted 

arbitrarily and capriciously by imposing the $50,000 supersedeas bonds. 

¶11 We review the interpretation of statutes and court rules de 

novo. Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 194, ¶ 6 (2016) 

(statutes); State v. Fitzgerald, 232 Ariz. 208, 210, ¶ 10 (2013) (court rules). “We 

interpret statutes and rules in accordance with the intent of the drafters, and 

we look to the plain language of the statute or rule as the best indicator of 

that intent.” Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7 (App. 2005). “If the 

language of a statute or rule is unambiguous, ‘we apply it as written.’”

Gutierrez v. Fox, 242 Ariz. 259, 267, ¶ 28 (App. 2017) (quoting Roberto F. v. 

DCS, 237 Ariz. 440, 441, ¶ 6 (2015)). 

¶12 At the outset, we note Kellin failed to provide a transcript of 

the May 2019 hearing. As a result, we “presume the items not included in 

the appellate record support [the] trial court’s ruling,” Myrick v. Maloney, 

235 Ariz. 491, 495, ¶ 11 (App. 2014), and will “affirm the trial court’s 

decision if it is correct for any reason, even if that reason was not considered 
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

6 

by the trial court,” Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986). Therefore,

the court did not act arbitrarily here if the law governing supersedeas bonds 

authorized any interpretation of the superior court's ruling. 

¶13 “[A] party may file a supersedeas bond to stay enforcement 

of or execution on a judgment while an appeal is pending.” Irwin, 245 Ariz. 

at 252, ¶ 8. “Arizona . . . courts recognize that the purpose of posting a 

supersedeas bond is to preserve the status quo pending appeal.” Bruce 

Church, Inc. v. Superior Court, 160 Ariz. 514, 517 (App. 1989), superseded by 

rule on other grounds as stated in City Ctr., 237 Ariz. at 40, ¶ 9. Absent statutes 

or rules to the contrary, “a court has the inherent discretion and power to 

allow for flexibility in the determination of the ‘nature and extent of the 

security required to stay the execution of the judgment pending appeal.’” 

Salt River Sand & Rock Co. v. Dunevant, 222 Ariz. 102, 106, ¶ 9 (App. 2009)

(quoting Bruce Church, 160 Ariz. at 517), superseded by rule on other grounds 

as stated in City Ctr., 237 Ariz. at 40, ¶ 9. 

¶14 In Arizona, the judiciary’s authority in this sphere has been 

narrowed by A.R.S. § 12-2108 and Rule 7. Under Rule 7, the extent of the 

court’s discretion in setting the amount of the bond turns upon the relief 

granted by the judgment upon which the appeal is based. For example, Rule 

7(a)(4)—which closely follows the language of A.R.S. § 12-2108—provides:

[S]ubject to rule 7(a)(9), if the judgment includes a monetary 

award, the amount of the bond relating to the monetary 

award must be the lowest of the following:

(A) the total amount of damages, costs, attorney’s fees, 

and prejudgment interest included in the judgment 

when entered, excluding punitive damages;

(B) fifty percent of the net worth of the party seeking 

the stay; or

(C) twenty-five million dollars.

When a court applies Rule 7(a)(4), it may only adjust the supersedeas bond 

amount in three situations. Starr Pass Resort Developments, LLC v. Harrington, 

245 Ariz. 495, 499, ¶ 13 (App. 2018). First, the court may increase the bond 

amount “up to the full amount of the judgment” if the party requesting the

bond proves by clear and convincing evidence that the party seeking the 

stay has been dissipating assets to avoid paying the judgment. A.R.S. 

§ 12-2108(B); ARCAP 7(a)(9)(A). Second, the court may lower the bond 

amount if the party seeking the stay “proves by clear and convincing 
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

7 

evidence that [it] is likely to suffer substantial economic harm” if it were 

required to post the amount contemplated by Rule 7(a)(4). A.R.S. 

§ 12-2108(C); ARCAP 7(a)(9)(B). Third, “[i]n determining the amount of the 

bond, the superior court may consider whether there is other security for 

the judgment, or whether the sheriff or the court has custody of any of the

property in controversy.” ARCAP 7(a)(9)(C).

¶15 Before January 2019, a similar version of Rule 7(a)(4)4

exclusively controlled the court’s determination of the amount of the bond 

required to stay the enforcement of any judgment. See Harrington, 245 Ariz. 

at 499, ¶ 13. However, effective January 2019, amended Rule 7 alters how 

the court calculates the amount of supersedeas bond necessary to stay 

non-monetary judgments. See Ariz. Sup. Ct. Order R-18-0017 (August 28, 

2018). Under the newly adopted Rule 7(a)(6):

If the judgment includes . . . relief other than an award of 

money or recovery of an interest in property, the superior 

court must determine the amount of the bond, if any, that the 

requesting party must post. . . . Subject to Rule 7(a)(9), the 

superior court should consider the bond or other orders 

needed to adequately:

(A) protect the adverse party against loss or damage 

that such party is likely to suffer from a stay if the 

judgment is affirmed; and

(B) preserve the status quo or the effectiveness of the 

judgment.

Unlike Rule 7(a)(4) for money judgments, Rule 7(a)(6)’s language is 

permissive. Compare ARCAP 7(a)(4) (“Subject to Rule 7(a)(9), the amount of 

 

4 The prior version of the rule stated, “[t]he amount of the bond must 

be the lowest of the following: (A) The total amount of damages awarded, 

excluding punitive damages; (B) Fifty per cent of the appellant’s net worth; 

or (C) Twenty-five million dollars. The appellant must prove net worth by 

a preponderance of the evidence.” ARCAP 7(a)(4) (2018). The primary 

differences between the amended and prior version of the rule are: (1) the 

amended rule is now specifically limited to monetary judgments; and 

(2) the amended rule includes “costs, attorney’s fees, and pre-judgment 

interest included in the judgment when entered” in the amount specified 

by Rule 7(a)(4)(A).
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

8 

the bond . . . must be the lowest of the following . . . .”) (emphasis added), 

with ARCAP 7(a)(6) (superior court “should consider the bond . . . needed” to 

address Rule 7(a)(6)(A) and (B)) (emphasis added). Because Rule 7(a)(6) 

merely states that the superior court “should consider” the factors 

described in Rule 7(a)(6)(A), (B), and 7(a)(9), it leaves both the decision to 

set a bond and calculation of the amount of bond to the discretion of the 

court.

¶16 Here, the judgments fall under Rule 7(a)(6), as the judgments 

do not grant Banner a monetary award—they merely order BMO and 

Betterment to transfer the funds they are holding on behalf of the Kellins to 

Banner. Consequently, the court had the discretion to set the supersedeas 

bonds it deemed necessary to fulfill the purpose of a supersedeas bond—

preserving the status quo or the effectiveness of the judgment. But Kellin is 

correct that the status quo or the effectiveness of the judgment is already 

being maintained in part because he has no access to the monies subject to 

the BMO and Betterment Judgments. BMO and Betterment are prohibited 

from paying “to the judgment debtor any monies . . . which [are] not 

exempt . . . if it is within the legal power of the garnishee to do so.” A.R.S. 

§ 12-1578(A). Although this fact means the court could not have set a 

supersedeas bond to secure payment of the garnishment judgments, the 

court’s decision is supportable if any other reasonable basis for setting the 

$50,000 bonds exists. 

¶17 Banner argues the supersedeas bonds preserve the status quo

and protect Banner’s interests by securing payment of any attorney’s fees

and costs that might be awarded to Banner in each of Kellin’s appeals. We 

agree that given the broad discretion afforded to a court under Rule 7(a)(6), 

and the circumstances of this case, the court could have set the $50,000 

supersedeas bonds to secure recovery of potential appellate attorney’s fees 

and costs, provided an appellate court may award attorney’s fees and costs

on an appeal from a judgment of garnishment.5

 

5 Our conclusion is bolstered by the fact that federal courts applying a 

similarly discretionary standard have conditioned supersedeas bonds on 

satisfaction of a calculated estimate of appellate attorney’s fees. See, e.g., 

North River Ins. v. Greater N.Y. Mut. Ins., 895 F. Supp. 83, 84–85 (E.D. Penn. 

1995); Avirgan v. Hull, 125 F.R.D. 185, 188 (S.D. Fla. 1989); see also Bruce 

Church, 160 Ariz. at 516–17 (finding federal authorities useful in resolving 

supersedeas bond questions).
KELLIN v. HON. LYNCH/AMERICANWEST

Opinion of the Court

9 

¶18 “[G]arnishment was unknown to the common law; it has 

come into being as a statutory remedy.” Andrew Brown Co. v. Painters 

Warehouse, Inc., 11 Ariz. App. 571, 572 (1970). “Since garnishment is a 

creature of statute . . . courts may not allow garnishment proceedings to 

follow any course other than that charted by the legislature.” Bennett Blum, 

M.D., Inc. v. Cowan, 235 Ariz. 204, 208, ¶ 16 (App. 2014) (quoting Patrick v. 

Associated Drygoods Corp. (Goldwater’s Division), 20 Ariz. App. 6, 9 (1973)).

Under the statutes governing proceedings to garnish monies or property, 

A.R.S. §§ 12-1570 to -1597, A.R.S. § 12-1580(E) provides the exclusive 

avenue for a party to recover attorney’s fees and costs against a judgment 

debtor. Bennett Blum, 235 Ariz. at 209, ¶ 20. Section 12-1580(E) provides:

The prevailing party may be awarded costs and attorney fees 

in a reasonable amount determined by the court. The award 

shall not be assessed against nor is it chargeable to the 

judgment debtor, unless the judgment debtor is found to have 

objected to the writ solely for the purpose of delay or to harass 

the judgment creditor.

The statute permits this court to award attorney’s fees and costs against a 

judgment debtor on appeal from a judgment of garnishment, so long as the 

court finds that the appeal was brought “solely for the purpose of delay or 

to harass the judgment creditor.” A.R.S. § 12-1580(E); see also, e.g., Carey v. 

Soucy, 245 Ariz. 547, 554, ¶¶ 31–32 (App. 2018) (awarding attorney’s fees 

against judgment debtor under A.R.S. § 12-1580(E)); Premier Fin. Servs. v. 

Citibank (Arizona), 185 Ariz. 80, 89 (App. 1995) (same). Thus, we conclude 

Banner may be awarded appellate attorney’s fees and costs under the 

statute in Kellin’s fourth and fifth appeals and that the superior court was 

within its discretion to set supersedeas bonds for $50,000 to ensure recovery 

of those attorney’s fees and costs. 

CONCLUSION

¶19 For the foregoing reasons, we grant special action jurisdiction 

but deny relief.