Appellate Stays and Bonds
The purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds. In many instances, a stay pending review may be essential to effective relief on appeal. A stay is not required, however, for appellate review.
Applications for Stays
An initial application for a stay is by motion in the trial court or the administrative body that rendered the order being appealed.1 Pursuant to Fla. R. App. P. 9.310(b)(1) and (2), certain stays are discretionary, while others are of right. Where a stay is discretionary and is granted by the lower tribunal, that tribunal has considerable latitude in determining conditions attached to the stay.2 Review of orders on stays is by motion in the appellate court.3
Stays of Proceedings in Money Judgments
Executions on money judgments are stayed during the 10-day period for serving post-trial motions and until determination of such motions.4 The filing of the notice of appeal does not automatically stay trial proceedings or execution on a final money judgment. Rule 9.310(b) requires filing a motion or bond. Thus, a party who intends to stay a judgment by posting a bond should arrange to have a bond in place at the time the trial court rules on the post-trial motions.
A party does not have to post a bond to appeal a money judgment.5 The trial court cannot require a party to post a bond.6
If the appellant does not stay a monetary judgment, the appellee/judgment creditor may execute on the judgment during the appeal. If the judgment is reversed, the appellant is entitled to have its property restored to it by the appellee.7 But the appellant who does not post a bond runs the risk that at the time of reversal the appellee may no longer have the money and may be judgment proof.8
Appeal Bond Mechanics
Rule 9.310(b)(1) provides that money judgments are automatically stayed upon the posting of a bond in the amount of the judgment plus twice the yearly statutory interest rate on the amount on which the party has an obligation to pay interest. Rule 9.900(h) contains a form:
- The principal is the party against whom the judgment has been entered, and the surety is the insurance company that is guaranteeing payment, if the principal does not pay. The party posting the bond should attach a power of attorney to the bond, showing that the person signing on behalf of the surety has authority to bind it to the bond. Rule 9.310(c)(1) requires a bond with an authorized surety or cash deposited in the clerk’s office, and gives the lower tribunal continuing jurisdiction to determine the actual sufficiency of any such bond.
No Discretion in Amount
Despite Rule 9.310(b)’s wording suggesting a party may obtain a stay by a motion or bond, as Rule 9.310(b)(1) makes clear, a money judgment may be stayed only by posting a bond in the specified amount. The trial court does not have discretion to grant a stay of a monetary judgment by motion, or to decrease or increase the amount of the bond.9
Stays in Other Proceedings
When the order appealed is not for the payment of money, the appellant must move for a stay in the lower court. The lower court may set appropriate conditions upon the granting of such a stay.10 Where the judgment provides other relief in addition to money damages, the automatic stay provision of Rule 9.310(b)(1) does not apply. The trial court may make posting a bond a condition of a stay in its Rule 9.130(a) determination.11
If a petition for a common law writ of certiorari is involved, F.S. §59.13 provides for entry of a stay by the circuit court. However, a stay pending discretionary review from a district court to the Florida Supreme Court can be granted only by the district court of appeal or the Supreme Court.12
Agreed Stays
Parties should consider conferring to determine if they can agree to a stay without a bond or disputed motion hearing. If the appellate court reverses the judgment, the cost of the appeal bond is a recoverable appellate cost.13 If the judgment creditor has no concerns over the judgment debtor’s ability to pay at the conclusion of the appeal, the creditor may want to stipulate that it will not execute during the appeal. In either event, counsel should confirm by letter the client’s instructions, pointing out the potential cost award for a bond, as well as the risk of nonrecovery if the debt becomes uncollectible and there is no bond.
Automatic Stays for Public Bodies
The filing of a notice of appeal by a public body or public officer acts as an automatic stay pending review (except in criminal cases) when a public body or public officer takes an appeal in an official capacity. An exception allows an automatic stay for only 48 hours in public records and public meeting cases. On motion, the lower tribunal or appellate court may impose conditions or vacate these stays.14
Stays in Appeals from Administrative Agencies
A petition for review of administrative agency does not stay enforcement of an agency decision. But if the agency suspends or revokes a license, a stay is granted as of right upon reasonable conditions, unless the appellate court, on petition of the agency, determines that a stay would constitute a probable danger to the health, safety, or welfare of the state.15 An appellant seeking a stay from an administrative order should apply to the agency. Review of the agency’s decision is by motion filed in the appellate court.16
Termination of Stays
Rule 9.310(e) provides that the stay automatically terminates when the appellate court issues its mandate. Consequently, if the losing party intends to seek further review, it must move the appellate court to stay issuance of its mandate. Denial of the stay is reviewable by motion to the appellate court in which the losing party will be seeking further review.17
Payment of Judgment
Generally, when a judgment debtor voluntarily pays the judgment, the debtor’s appeal becomes moot and is subject to dismissal. But questions can arise as to whether a debtor’s payment is voluntary and falls within the general rule.18
Stays in Nonfinal Appeals
Rule 9.130(f) provides that in the absence of a stay during the review of a nonfinal order, the lower tribunal may proceed with all matters, including trial and final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review. Case law suggests an additional limitation: Regardless of whether a stay is entered, “the subsequent proceedings in the lower court may not interfere with the power of the appellate court to make its jurisdiction effective with respect to the interlocutory order on appeal.”19
Bankruptcy Stays
More recent Florida decisions hold that the automatic bankruptcy stay operates to stay appeals in all cases in which the bankruptcy debtor was a defendant, even those appeals taken by the debtor.20
Stays in Federal Proceedings
Fed. R. Civ. P. 62 addresses federal court stays for appeals. Rule 62(a) provides the same 10-day “grace” period for execution as Fla. R. Civ. P. 1.550(a). Rule 62(b) permits the party moving for a new trial or other relief to obtain a further stay (beyond the 10 days) at the discretion of the district court and upon such conditions for security of the adverse party as are proper. Thus, unlike the Florida procedure, the motion itself does not toll execution beyond the 10-day period.
Also unlike Florida procedure, the federal rules do not specify an amount for a supersedeas bond. Normally a court will require that the amount of the bond include the whole amount of the judgment, costs on appeal, and interest.21 Counsel should confer to see if the parties can agree to the bond amount. Fed. R. App. P. 8(a) requires that an appellant ordinarily seek a stay pending appeal from the district court first, or show that applying to the district court is not practicable.
Fed. R. Civ. P. 62(d) provides for a stay pending appeal upon the appellant’s giving a supersedeas bond. “The stay is effective when the supersedeas bond is approved by the court.” Id. Fed. R. Civ. P. 62(c) addresses injunctions during appeal.
Conclusion
Parties’ decisions over posting bonds and obtaining stays may overshadow an appeal. A judgment debtor who fails to post a bond and obtain a stay may find that a judgment creditor has executed on the judgment; hence, there will be little practical chance of recovering the funds if the debtor prevails on appeal a year later. A creditor may find the debtor’s ability to pay has dissipated during the appeal.
1 See Fla. R. App. P. 9.310(a). Unless otherwise indicated, all references are to the Florida Rules of Appellate Procedure.
2 See Cerrito v. Kovitch, 406 So. 2d 125, 126 (Fla. 4th D.C.A. 1981).
3 See Fla. R. Civ. P. 9.310(f).
4 See Fla. R. Civ. P. 1.550(a).
5 E.g., Campbell v. Jones, 648 So. 2d 208, 209 (Fla. 3d D.C.A. 1994).
6 E.g., Palm Beach Heights Dev. and Sales Corp. v. Decillis, 385 So. 2d 1170, 1171 (Fla. 3d D.C.A. 1980).
7 See Sundie v. Haren, 253 So. 2d 857, 858 (Fla. 1971); American Bankers Life Assurance Co. of Fla. v. Williams, Salomon, Kanner & Damian, 399 So. 2d 365, 366 (Fla. 3d D.C.A. 1981).
8 See Ronette Communications Corp. v. Lopez, 475 So. 2d 1360, 1361 (Fla. 5th D.C.A. 1985).
9 See Campbell, 648 So. 2d at 209; but see Rule 9.310 committee’s notes regarding insurers’ obligations on interest.
10 See Fla. R. Civ. P. 9.310(a).
11 See Pabian v. Pabian, 469 So. 2d 189, 190 (Fla. 4th D.C.A. 1985).
12 See Robbins v. Pfeiffer, 407 So. 2d 1016, 1017 (Fla. 5th D.C.A. 1981).
13 See Fla. R. Civ. P. 9.400(a)(3).
14 See Fla. R. Civ. P. 9.310(b)(2). The automatic stay for a public body that seeks review of a decision should be vacated only under the most compelling circumstances. State, Dep’t of Envtl Protection v. Pringle, 707 So. 2d 387, 390 (Fla. 1st D.C.A. 1998).
15 See Fla. Stat. §120.68(3).
16 See Fla. R. Civ. P. 9.310(f).
17 Id.
18 Compare Frank Silvestri Invs., Inc. v. Sullivan, 486 So. 2d 20 (Fla. 5th D.C.A. 1986) (appeal dismissed where party paid after foreclosure stay entered), with Reserve Ins. Co. v. McPeak, 181 So. 2d 662 (Fla. 1st D.C.A. 1966) (payment of a judgment after execution and levy is made is not a voluntary payment so as to deprive the payor of his right of appeal), and Main Street Indus., Inc. v. K-Mart Corp., 710 So. 2d 771 (Fla. 4th D.C.A. 1998) (party forfeited its right to appeal when it paid the appellee pursuant to the circuit court’s order to enforce a settlement, instead of paying the money into the registry of the court or obtaining a stay by posting a bond).
19 Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So. 2d 227, 234 (Fla. 4th D.C.A. 1976).
20 See Taylor v. Barnett Bank of No. Cent. Florida, N.A., 737 So. 2d 1105, 1105-06 (Fla. 1st D.C.A. 1998); Crowe Group, Inc. v. Garner, 691 So. 2d 1089, 1089 (Fla. 2d D.C.A. 1993). But cf. Home America, Inc. v. T & J Paving, Inc., 544 So. 2d 1076, 1077 (Fla. 2d D.C.A. 1989) (automatic stay does not operate where debtor was plaintiff).
21 See Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979).
Raymond T. (Tom) Elligett, Jr., is a member of the Tampa law firm of Schropp, Buell & Elligett, P.A. He received his B.A. in mathematics with high honors from the University of Florida in 1975 and his J.D., cum laude, from Harvard Law School in 1978. He is board certified in appellate practice and is a past chair of The Florida Bar Appellate Practice and Advocacy Section.
Judge John M. Scheb is a senior judge of the Second District Court of Appeal, on which he served from 1974 until 1992. Judge Scheb teaches appellate practice as a distinguished professorial lecturer at Stetson University College of Law. He received his B.A. from Florida Southern College, his J.D. from the University of Florida, and an LL.M. in judicial process from the University of Virginia.
This column is submitted on behalf of the Appellate Practice Section, Benedict P. Kuehne, chair, and Jacqueline E. Shapiro, editor.
This article is adapted with permission from Raymond T. Elligett, Jr., and John M. Scheb, Florida Appellate Practice and Advocacy (1998).
