Appellate Practice

1 Appellate Practice Appellate Stays and Bonds by Raymond T. (Tom) Elligett, Jr., and Judge John M. Scheb T. he purpose of an Appellate party has an obligation to pay in- stay is to maintain the terest. Rule (h) contains a status quo in the lower form: tribunal while an appeal A judgment debtor The principal is the party against proceeds. In many instances, a stay whom the judgment has been en- pending review may be essential to who fails to post tered, and the surety is the insur- effective relief on appeal. A stay is ance company that is guaranteeing not required, however, for Appellate a bond and obtain payment, if the principal does not review. pay. The party posting the bond Applications for Stays a stay may find should attach a power of attorney to the bond, showing that the per- An initial application for a stay is by motion in the trial court or the that a judgment son signing on behalf of the surety has authority to bind it to the bond.

2 Administrative body that rendered Rule (c)(1) requires a bond the order being Pursu- creditor has with an authorized surety or cash ant to Fla. R. App. P. (b)(1) and deposited in the clerk's office, and (2), certain stays are discretionary, executed on gives the lower tribunal continuing while others are of right. Where a jurisdiction to determine the actual stay is discretionary and is granted the judgment. sufficiency of any such bond. by the lower tribunal, that tribunal has considerable latitude in deter- No Discretion in Amount mining conditions attached to the Despite Rule (b)'s wording Review of orders on stays is suggesting a party may obtain a by motion in the Appellate party to post a stay by a motion or bond, as Rule If the appellant does not stay a (b)(1) makes clear, a money Stays of Proceedings monetary judgment, the appellee/ judgment may be stayed only by in Money Judgments judgment creditor may execute on posting a bond in the specified Executions on money judgments the judgment during the appeal.

3 If amount. The trial court does not are stayed during the 10-day period the judgment is reversed, the appel- have discretion to grant a stay of a for serving post-trial motions and lant is entitled to have its property monetary judgment by motion, or until determination of such mo- restored to it by the But to decrease or increase the amount The filing of the notice of ap- the appellant who does not post a of the peal does not automatically stay bond runs the risk that at the time trial proceedings or execution on a of reversal the appellee may no Stays in Other Proceedings final money judgment. Rule longer have the money and may be When the order appealed is not (b) requires filing a motion or judgment for the payment of money, the ap- bond. Thus, a party who intends to pellant must move for a stay in the stay a judgment by posting a bond Appeal Bond Mechanics lower court .

4 The lower court may set should arrange to have a bond in Rule (b)(1) provides that appropriate conditions upon the place at the time the trial court money judgments are automatically granting of such a Where the rules on the post-trial motions. stayed upon the posting of a bond judgment provides other relief in A party does not have to post a in the amount of the judgment plus addition to money damages, the au- bond to appeal a money twice the yearly statutory interest tomatic stay provision of Rule The trial court cannot require a rate on the amount on which the (b)(1) does not apply. The trial THE FLORIDA BAR JOURNAL/MAY 2001 33. court may make posting a bond a circuit court . However, a stay pend- Agreed Stays condition of a stay in its Rule ing discretionary review from a dis- Parties should consider conferring (a) trict court to the Florida Supreme to determine if they can agree to a If a petition for a common law writ court can be granted only by the stay without a bond or disputed of certiorari is involved, district court of appeal or the Su- motion hearing.

5 If the Appellate provides for entry of a stay by the preme court reverses the judgment, the cost of the appeal bond is a recover- able Appellate If the judgment creditor has no concerns over the (h) CIVIL SUPERSEDEAS BOND. judgment debtor's ability to pay at the conclusion of the appeal, the creditor may want to stipulate that (TITLE OF court ) it will not execute during the appeal. CASE NO: In either event, counsel should con- firm by letter the client's instruc- , ) tions, pointing out the potential cost award for a bond, as well as the risk Plaintiff, ). of nonrecovery if the debt becomes ) uncollectible and there is no bond. v. ) CIVIL SUPERSEDEAS Automatic Stays ) BOND for Public Bodies The filing of a notice of appeal by , ) a public body or public officer acts Defendant. ). as an automatic stay pending review (except in criminal cases) when a ) public body or public officer takes an appeal in an official capacity.

6 An exception allows an automatic stay We, as Principal, and as Surety, are held and firmly bound for only 48 hours in public records unto in the principal sum of $ , for the payment of which we bind and public meeting cases. On mo- ourselves, our heirs, personal representatives, successors, and assigns, jointly tion, the lower tribunal or Appellate and severally. court may impose conditions or va- The condition of this obligation is: the above-named Principal has en- cate these tered an appeal to the ( court ) to review the (judgment or order). entered in the above case on , (date) and filed in the records of said court in Stays in Appeals from book at page . Administrative Agencies NOW THEREFORE, if the Principal shall satisfy any money judg- A petition for review of adminis- ment contained in the judgment in full, including, if allowed by law, costs, trative agency does not stay enforce- interest, and attorneys' fees, and damages for delay in the event said appeal ment of an agency decision.

7 But if is dismissed or said judgment is affirmed, then this obligation shall be null the agency suspends or revokes a and void; otherwise to remain in full force and effect. license, a stay is granted as of right upon reasonable conditions, unless the Appellate court , on petition of the Signed on (date), at (place). agency, determines that a stay would constitute a probable danger to the health, safety, or welfare of /s/. the An appellant seeking a Principal stay from an administrative order should apply to the agency. Review of the agency's decision is by motion Signed on (date), at (place). filed in the Appellate Termination of Stays Rule (e) provides that the /s/. stay automatically terminates when Surety the Appellate court issues its man- date. Consequently, if the losing **. party intends to seek further review, 34 THE FLORIDA BAR JOURNAL/MAY 2001.

8 It must move the Appellate court to nal may proceed with all matters, taken by the stay issuance of its mandate. Denial including trial and final hearing, of the stay is reviewable by motion except that the lower tribunal may Stays in Federal to the Appellate court in which the not render a final order disposing of Proceedings losing party will be seeking further the cause pending such review. Case Fed. R. Civ. P. 62 addresses fed- law suggests an additional limita- eral court stays for appeals. Rule tion: Regardless of whether a stay 62(a) provides the same 10-day Payment of Judgment is entered, the subsequent proceed- grace period for execution as Fla. Generally, when a judgment ings in the lower court may not in- R. Civ. P. (a). Rule 62(b) per- debtor voluntarily pays the judg- terfere with the power of the appel- mits the party moving for a new trial ment, the debtor's appeal becomes late court to make its jurisdiction or other relief to obtain a further moot and is subject to dismissal.

9 But effective with respect to the inter- stay (beyond the 10 days) at the dis- questions can arise as to whether a locutory order on appeal. 19 cretion of the district court and upon debtor's payment is voluntary and such conditions for security of the falls within the general Bankruptcy Stays adverse party as are proper. Thus, More recent Florida decisions hold unlike the Florida procedure, the Stays in Nonfinal Appeals that the automatic bankruptcy stay motion itself does not toll execution Rule (f) provides that in the operates to stay appeals in all cases beyond the 10-day period. absence of a stay during the review in which the bankruptcy debtor was Also unlike Florida procedure, the of a nonfinal order, the lower tribu- a defendant, even those appeals federal rules do not specify an THE FLORIDA BAR JOURNAL/MAY 2001 35.

10 Amount for a supersedeas bond. Conclusion 4. 5. See FLA. R. CIV. P. (a). Normally a court will require that Parties' decisions over posting , Campbell v. Jones, 648 So. 2d 208, 209 (Fla. 3d 1994). the amount of the bond include the bonds and obtaining stays may over- 6. , Palm Beach Heights Dev. and whole amount of the judgment, costs shadow an appeal. A judgment Sales Corp. v. Decillis, 385 So. 2d 1170, on appeal, and Counsel debtor who fails to post a bond and 1171 (Fla. 3d 1980). 7. should confer to see if the parties can See Sundie v. Haren, 253 So. 2d 857, obtain a stay may find that a judg- 858 (Fla. 1971); American Bankers Life agree to the bond amount. Fed. R. ment creditor has executed on the Assurance Co. of Fla. v. Williams, App. P. 8(a) requires that an appel- judgment; hence, there will be little Salomon, Kanner & Damian, 399 So.