Putting the Brakes on Litigation: Stays Pending Review
Obtaining a stay pending review is a critical, but often confusing, component of appellate proceedings. Although a stay is not required to perfect appellate rights, continuing proceedings pending appeal may undermine or even eliminate the very basis for appellate review.1 Additionally, the prevailing party remains free to execute upon a judgment pending review, thereby forcing an appellant to endure execution efforts while challenging a judgment. Accordingly, counsel should be familiar with the necessary steps to obtain a stay pending review and the appropriate forum in which to obtain such relief.2
Fla. R. App. P. 9.310 establishes the primary method of obtaining a stay pending review, and Florida authorities have articulated the appropriate extent of a trial court’s discretion to impose a stay under varying conditions. As explained in this article, trial courts enjoy considerable discretion to impose a stay and to articulate applicable conditions. When a judgment is solely for the payment of money, however, an appellant must post a good and sufficient bond, and the trial court has no discretion to alter the conditions of a stay.
Lower Court’s Continuing Jurisdiction
Under most circumstances, an appellant seeking a stay pending review must apply to the lower court, which has continuing jurisdiction to grant, modify, or deny a stay pending review even after a notice of appeal is filed and the jurisdiction of the appellate court has been invoked.3 When an order appealed is not solely for the payment of money, the trial court retains the discretion to establish the terms and conditions of a bond, subject to review through a motion filed in the appellate court.4
Factors Relevant to Imposing a Stay
The trial court should examine such factors as the moving party’s likelihood of success on the merits and the potential for harm to the moving party if a stay is not granted.5 The guiding principle is “to protect the party in whose favor judgment was entered by assuring its payment in the event the judgment is affirmed on appeal.”6 The bond is not required to have a reasonable relationship to the ultimate damages sought, if this sum is inconsistent with an amount that will protect the prevailing party.7 The appropriate conditions for a stay vary from case to case and are necessarily fact-specific.8 Therefore, when an order is other than exclusively for the payment of money, the trial court is afforded considerable discretion when deciding the conditions of a stay.
Money Judgments
To secure a stay of solely a money judgment, a party must post a good and sufficient bond, which is defined as a “bond with a principal and a surety company authorized to do business in the State of Florida, or cash deposited in the circuit court clerk’s office.”9 A good and sufficient bond is the face value of the judgment plus two years of interest at the statutory interest rate.10 A money judgment is automatically stayed once the appellant posts a bond. No additional court order of stay is required.11 If multiple defendants have common liability, they can post a single bond to stay the judgment.12 Although Rule 9.310 suggests that a trial court retains discretion to alter the terms and conditions of a bond as to any type of judgment, Florida courts have held that a trial court has no discretion to alter the conditions of a stay entered with respect to a judgment solely for the payment of money and that the only way to obtain a stay is by posting the requisite bond.13
In Campbell v. Jones, 648 So. 2d 208, 209 (Fla. 3d DCA 1994), the Third District Court of Appeal reiterated the well-settled principle that an appellant need not post a supersedeas bond to perfect an appeal from a money judgment, but that if the appellant seeks a stay, he or she must post a bond in the amount set forth in Rule 9.310(b). Similarly, in Proprietors Ins. Co. v. Valsecchi, 385 So. 2d 749, 751–52 (Fla. 3d DCA 1980), the Third District concluded that the purpose underlying the rule would be defeated if applied so as to vest the trial court with discretion to increase or decrease the amount fixed by the rule.14
Requiring the full bond to obtain a stay of a money judgment protects the appellee’s ability to collect on the money judgment if the appellant is unsuccessful. As the Third District explained, “The trial court is not empowered to deprive the [plaintiffs] of their right to execute on the judgment by ordering any lesser bond or otherwise setting less onerous conditions.” Palm Beach Heights Dev. and Sales Corp. v. Decilis, 385 So. 2d 1170, 1171 (Fla. 3d DCA 1980). Thus, an appellant “is entitled to a stay of the final judgment only by the posting of the bond in the amount set forth in Rule 9.310(b)(1).” Id. at 1171.15 Further, in Pabian v. Pabian, 469 So. 2d 189 (Fla. 4th DCA 1985), the Fourth District noted that the “guiding principle in setting a supersedeas bond is to protect the party in whose favor judgment was entered by assuring its payment in the event the judgment is affirmed on appeal.” See also Mellon United Nat. Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA 2000) (holding that appellant seeking stay on a judgment solely for the payment of money must post a good and sufficient bond).
One area of potential confusion arises where a judgment provides both monetary and other relief. In those cases, Rule 9.310(b)(1) does not apply, and the parties must follow Rule 9.310(a), which vests discretion in the trial judge to condition a stay on the posting of a bond or on other conditions. When a judgment calls for both monetary and nonmonetary relief, the trial court may impose a stay on such terms and conditions as are just. In evaluating certain types of judgments, courts have held that even a judgment for payment of money from a specific source can be stayed at the trial court’s discretion. For example, an order directing the disbursement of a specific fund or trust may not be considered a money judgment under the rule.16 Similarly, an order directing a court clerk to disburse funds from the court registry is not a money judgment.17 Where an order for payment is enforceable by contempt, thereby providing an alternative to payment, it is not a money judgment under Rule 9.310(b)(1).18
Public Entities and Officers
Except for criminal cases, if a state, public officer in official capacity, board, commission, or other public entity seeks review, the judgment appealed is automatically stayed without entry of any further order and without posting a bond.19 Nonetheless, the lower tribunal retains jurisdiction to remove the automatic stay or to impose conditions on it, and that decision is subject to review through the procedure explained below.20
The public entity or official is entitled to an automatic stay only if it has an appeal as of right and if the appeal of right is in an official capacity. If a public entity or official seeks discretionary review, including an original writ, such as certiorari or mandamus, the automatic stay will not apply.21 Of course, when a public entity or official seeks discretionary review, it can request a stay from the lower tribunal under Rule 9.310(a) under terms and conditions deemed appropriate within the court’s discretion.
Pursuant to Fla. R. App. P. 9.310(b)(2), if an order requiring a meeting or record to be open to the public is appealed by a government agency, the automatic stay remains in effect for only 48 hours. This balances the necessary consideration of the public’s right of access to information with the interest of a government agency in seeking immediate review.
Administrative Stays
In an administrative context, the procedure for obtaining a stay pending review is set forth in Fla. R. App. P. 9.310 and 9.190(e) and F.S. §120.68(3) (2003), which should be read together. If a party seeks a stay from a proceeding before an agency governed by the Administrative Procedure Act, either the lower tribunal or the court may grant a stay upon appropriate motion.22 The better practice, however, is to apply first to the administrative agency and then to seek review before the appropriate appellate court.23
In Ludwig v. Dep’t of Health, 778 So. 2d 531 (Fla. 1st DCA 2001), the First District Court of Appeal explained the nuances of stays in the administrative context relating to license suspension or revocation. If an agency governed by the Administrative Procedure Act enters an order suspending or revoking a license, a motion for stay is to be granted as a matter of right unless the court, upon petition by the agency, determines that a stay would constitute a probable danger to the health, safety, or welfare of the state.24
However, even when a stay is granted as a matter of right, the stay provision is not self-executing. A licensee must file a motion with the reviewing court, and Rule 9.190 affords the agency 10 days to respond.25 If circumstances warrant a faster response, the moving party should allege specific facts demonstrating that a shorter response should be set.26 If the administrative agency does not respond within 10 days or within a shorter time period set by the court, a stay order will issue. If the agency contends that the granting of a stay will constitute a probable danger, due process considerations may authorize a licensee to submit a reply to rebut the administrative agency’s showing. Because the rule does not specifically authorize a licensee to file a reply in support of a stay motion, the Ludwig court warns that no reply should be submitted unless solicited by the court.27 If an order suspending or revoking a license has been stayed, an agency may apply to the court for dissolution or modification of the stay on the ground that subsequently acquired information demonstrates a probable danger to health, safety, or welfare in the absence of a stay.28 A stay imposed by the administrative agency or the court will remain in effect during the pendency of all review proceedings until a mandate issues.29
Although an order suspending or revoking a license will ordinarily be stayed as a matter of right, general law can supersede Rules 9.190 and 9.310 and prohibit a stay pending review of an order suspending or revoking a license. This is because Rule 9.310 allows a general law to prevail over the rule. Therefore, if a valid general law prohibits a stay, Rule 9.310 incorporates and enforces the statutory provision and a stay will not be allowed. For example, under Florida law, if a driver refuses a blood, breath, or urine test following a traffic stop, this results in an administrative suspension of the driver’s license.30 Pursuant to Florida statute, the driver’s license suspension may not be stayed pending appeal of the conviction or order resulting in suspension or revocation.31 Although such a statute may, at first glance, appear to be an improper encroachment by the legislature over the judiciary’s rule-making authority, various courts have affirmed the constitutionality of statutes disallowing stay of an order pending appeal based upon the language contained in Rule 9.310 expressly incorporating valid general law.32
Duration of the Stay
A stay pending review remains in effect until a mandate issues, unless otherwise modified or vacated.33 Once an appellate decision becomes final, the stay is dissolved, even if an appellant seeks discretionary review in the Florida Supreme Court. The only method for obtaining a further stay once a court issues its opinion and disposes of any timely filed motions for rehearing, certification, or clarification is to file a motion to stay issuance of the mandate.34 Although no appellate rule specifically authorizes a motion to stay the issuance of a mandate, it appears to be a common practice stemming from the court’s inherent authority.35 If no further stay is sought, issuance of the mandate is a ministerial act.36 A party seeking further review of a district court decision should file a motion to stay the mandate before the district court, subject to review before the Florida Supreme Court.37 Of course, because a mandate will issue 15 days after an opinion is rendered (15 days after the opinion issues or 15 days after disposition of a timely filed tolling motion), a party seeking further review who wishes to secure or continue a stay must file a motion to stay issuance of the mandate within the 15-day period following rendition of the court’s opinion.38 Once 15 days elapse from the date of an opinion or disposition of a timely filed tolling motion and the mandate issues, the court no longer has the authority to stay issuance of a mandate.39
The factors a court evaluates to determine whether to stay issuance of the mandate include: 1) the likelihood the higher court will accept jurisdiction; 2) the likelihood of ultimate success on the merits; 3) the likelihood of harm if no stay is granted; and 4) the remediable quality of any such harm.40 The denial of a motion to stay a mandate issued by a district court is reviewable by the higher court, through motion, in the same manner as a district court reviews the order regarding a stay entered by the lower tribunal.
Of course, under certain circumstances a party can request a court to recall its mandate.41 An appellate court has the authority to recall its mandate within the term in which the mandate issued.42 The Florida Supreme Court has articulated a rationale for recalling a mandate.43 As the court explained,
[D]uring the term at which a judgment of this court is rendered, this court has jurisdiction and power which it may exercise, as the circumstances and justice of the case may require, to reconsider, revise, reform, or modify its own judgments for the purpose of making the same accord with law and justice, and that it has the power to recall its own mandate for the purpose of enabling it to exercise such jurisdiction and power in a proper case.44
The more prudent course of action is to file a motion to stay the mandate, rather than attempt to convince the court to recall its mandate once issued.
Review of a Stay Order
After the lower tribunal addresses a stay issue, the order is subject to review by the appellate court in which review is sought. An order regarding a stay is reviewed by motion, without the necessity of filing a separate notice of appeal; additionally, it may be sought by either party and is reviewed under the abuse of discretion standard.45 There is no time limit articulated in the rules for seeking review of a stay order, but practical necessity will usually dictate expeditiousness. On the other hand, as explained above, if a party seeks to stay issuance of a mandate, the motion must be filed within 15 days from rendition of the opinion or the mandate will issue as a ministerial act and the district court will lose jurisdiction to stay the mandate. The rule is also silent as to whether a party may file multiple motions to review stay orders imposed by the lower tribunal as circumstances change. Arguably, an appellant may file successive stay motions in light of changing circumstances.46
Conclusion
Familiarity with the mechanics of seeking a stay pending review is necessary to preserve the status quo during the review process. In many circumstances, the absence of a stay may obviate the need for an appeal or subject a litigant to pressure on two fronts. Accordingly, the practitioner should be aware of the procedures and time limitations that pertain to stays. q
1 Hirsch v. Hirsch, 309 So. 2d 47, 49 (Fla. 3d D.C.A. 1975) (noting that stay pending review maintains the status quo).
2 The scope of this article is limited to stays pending review in state civil and administrative proceedings.
3 Fla. R. App. P. 9.310(a); but see Perez v. Perez, 769 So. 2d 389, 391 n.4 (Fla. 3d D.C.A. 1999) (noting appellate court’s inherent authority to grant a stay to preserve the status quo pending review). As explained in the committee notes to Fla. R. App. P. 9.310(f), the rule “is not intended to limit the constitutional power of the court to issue stay orders after its jurisdiction has been invoked.” The committee notes further recognize that if review is sought in the U.S. Supreme Court, a party may move for stay of a mandate, but in that event subdivision (e) of the rule, providing that a stay entered by a lower tribunal is to remain in effect “during the pendency of all review proceedings in Florida courts until a mandate issues, or unless otherwise modified or vacated,” does not apply.
4 Mariner Health Care of Nashville, Inc. v. Baker, 739 So. 2d 608, 609 (Fla. 1st D.C.A. 1999) (noting general principle that trial court has discretion to create conditions of stay pending review).
5 Perez, 769 So. 2d at 391 n.4 (Fla. 3d D.C.A. 1999); see also State ex rel. Price v. McCord, 380 So. 2d 1037, 1038 n.3 (Fla. 1980).
6 Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th D.C.A. 1985).
7 See Smith v. Import Birds, Inc., 457 So. 2d 1154, 1155 (Fla. 4th D.C.A. 1984) (concluding that trial court abused its discretion by requiring appellant to post a $25,000 bond to stay order denying a motion to quash service and vacate default when complaint alleged damages in excess of $5,000).
8 Pabian, 469 So. 2d at 191 (citing Knipe v. Knipe, 290 So. 2d 71 (Fla. 2d D.C.A. 1974)).
9 Fla. R. App. P. 9.310(c).
10 Fla. R. App. P. 9.310(b)(1).
11 See Taplin v. Salamone, 422 So. 2d 92, 93 (Fla. 4th D.C.A. 1982) (noting that a bond on a money judgment automatically stays a money judgment without need for further order).
12 Fla. R. App. P. 9.310(b)(1).
13 This contrasts with the Federal Rules of Appellate Procedure, which courts have interpreted as authorizing a district court to vary the conditions of a stay even if a judgment is solely for the payment of money. See, e.g., Federal Prescription Serv., Inc. v. American Pharm. Ass’n, 636 F.2d 755 (D.C. Cir. 1980) (holding that court retains discretion to condition terms of stay pending review).
14 When the Third District decided Valsecchi, the rule in effect established as a fixed formula for determining the amount of the bond on a money judgment the bond plus 15 percent, rather than the current calculation of the face amount of the judgment plus two years of statutory interest. 385 So. 2d at 751. Nonetheless, the analysis as to the trial court’s discretion still applies. Accord Campbell, 648 So. 2d 208.
15 See Finst Dev., Inc. v. Bemoar, 449 So. 2d 290, 292 (Fla. 3d D.C.A. 1983) (holding that appellant may stay execution of a judgment only if it complies with Fla. R. App. P. 9.310(b)(1) by posting “a good and sufficient supsedeas bond”).
16 Merrill Lynch Trust Co. v. Alzheimer’s Lifeliners Ass’n, 832 So. 2d 948 (Fla. 2d D.C.A. 2002).
17 Wilson v. Woodward, 602 So. 2d 545 (Fla. 2d D.C.A. 1991) (holding that orders directing the disbursement of funds are not money judgments under Fla. R. App. P. 9.310); Dice v. Cameron, 424 So. 2d 173 (Fla. 3d D.C.A. 1983) (holding that order authorizing personal representative to distribute estate funds did not constitute a money judgment under Fla. R. App. P. 9.310).
18 Grabel v. Grabel, 425 So. 2d 1220 (Fla. 3d D.C.A.1983) (holding that order to pay accrued child support is not a money judgment when enforceable by contempt order).
19 Fla. R. App. P. 9.310(b)(2). Cf. State v. Mitchell, 848 So. 2d 1209 (Fla. 1st D.C.A. 2003) (holding that the automatic stay provision of Rule 9.310(b)(2) is applicable to civil commitment proceedings under the Jimmy Ryce Act, Fla. Stat. §§ 394.910 – 394.931 (2000), and certifying the question to the Florida Supreme Court as a question of great public importance). When confinement is civil in nature and for protection of the public rather than for punishment, if a state seeks review of a final order of dismissal of a commitment proceeding for a sexually violent predator, the automatic stay provision applies. See Westerheide v. State, 767 So. 2d 637, 648 (Fla. 5th D.C.A. 2000) (holding that Jimmy Ryce Act is civil in nature).
20 Fla. R. App. P. 9.310(f).
21 See State, Dep’t of Health and Rehab. Servs. v. E.D.S. Fed. Corp., 622 So. 2d 90 (Fla. 1st D.C.A. 1993) (noting that automatic stay does not apply when government agency seeks certiorari review, but that agency may apply to lower tribunal under Fla. R. App. P. 9.310(a)).
22 Mitchell v. Leon County Sch. Bd., 591 So. 2d 1032 (Fla. 1st D.C.A. 1991) (noting that student appealing a school board expulsion order reviewable by the district court under Ch. 120 should first apply to the agency for stay pending review).
23 Fla. R. App. P. 9.190(e)(2).
24 Ludwig, 778 So. 2d at 533; Fla. R. App. P. 9.190(e)(2)(C); Fla. Stat. §120.68(3) (2003).
25 Ludwig, 778 So. 2d at 533.
26 Id.
27 Id.
28 Id.; Fla. R. App. P. 9.190(e)(2)(D).
29 Id.
30 Fla. Stat. §322.2615 (2003).
31 Fla. Stat. §322.28(5) (2003).
32 Anderson v. Dep’t of Highway Safety and Motor Vehicles, 751 So. 2d 749, 750 (Fla. 5th D.C.A. 2000); State Dep’t of Highway Safety v. Begley, 776 So. 2d 278 (Fla. 1st D.C.A. 2000) (granting certiorari and quashing stays of driver’s license suspension entered by circuit court acting in its review capacity). Other statutes undermining an appellant’s ability to procure a stay have been affirmed, even when a judgment solely for money is appealed. For example, in St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961, 966 (Fla. 2000), the Florida Supreme Court affirmed the validity of Fla. Stat. §766.212(2) (2000), which limits a party’s ability to stay an arbitration award in a medical malpractice case to only those circumstances where necessary to avoid manifest injustice. Therefore, even a party’s ability to obtain a stay of a monetary award may be limited by statute.
33 Fla. R. App. P. 9.310(e).
34 Fla. R. App. P. 9.340(a) (noting that unless otherwise ordered by the court or as otherwise provided by the Rules, the clerk shall issue the mandate 15 days from the order or decision); see McCord, 380 So. 2d at 1039 (noting that issuance of mandate, in absence of a stay, is a ministerial act after expiration of the 15-day mandate period, notwithstanding pending review in the Florida Supreme Court).
35 State v. Miyasato, 805 So. 2d 818, 824 (Fla. 2d D.C.A. 2001) (noting that although motions to stay issuance of mandate are common, there is no rule of procedure authorizing the motion).
36 Id.
37 City of Miami v. Arostegui, 616 So. 2d 1117, 1120 (Fla. 1st D.C.A. 1993).
38 Fla. R. App. P. 9.340(a), (b).
39 See Doyle-Vallery v. Aranibar, 838 So. 2d 1200, 1201 (Fla. 2d D.C.A. 2003) (noting that court loses jurisdiction to stay mandate’s issue upon expiration of 15-day period from date opinion is rendered).
40 Fla. Stat. §120.68(3) (2003); McCord, 380 So. 2d at 1038 n.3; Oliveira v. State, 765 So. 2d 90 (Fla. 4th D.C.A. 2000) (applying the factors outlined in McCord in a criminal case).
41 Judges of the Eleventh Judicial Cir. v. Janovitz, 635 So. 2d 19 (Fla. 1994).
42 See Pinecrest Lakes, Inc. v. Shidel, 802 So. 2d 486 (Fla. 4th D.C.A. 2001) (explaining the circumstances in which an appellate court has the power to recall its mandate); State Farm Mut. Auto Ins. Co. v. Judges of Dist. Ct. of Appeal, Fifth Dist., 405 So. 2d 980 (Fla. 1981) (recognizing authority to withdraw mandate during term in which it was issued); Maffea v. Moe, 483 So. 2d 829 (Fla. 4th D.C.A. 1986) (same); State v. Interest of D.I., 477 So. 2d 71 (Fla. 4th D.C.A. 1985) (same); Fla. Stat. §35.10 (2000) (“The district court of appeal shall hold two regular terms each year at its headquarters, commencing respectively on the second Tuesday in January and July.”)
43 Chapman v. St. Stephen’s Protestant Episcopal Church, Inc., 138 So. 630 (Fla. 1932).
44 Id. at 632.
45 Mariner Health Care, 739 So. 2d at 609.
46 Cf. Fla. R. App. P. 9.190(e)(2)(D) (authorizing an administrative agency to apply for dissolution or modification of a stay of an order suspending or revoking a license based upon “subsequently acquired” information).
Jack R. Reiter is board certified in appellate practice and heads the appellate department of the law firm of Adorno & Yoss, P.A., Miami. He graduated from the University of Florida College of Law with high honors and is a member of the Florida Appellate Court Rules Committee and the Appellate Practice Section of The Florida Bar.
This column is submitted on behalf of the Appellate Practice Section, Jack J. Aiello, chair, and Jacqueline E. Shapiro, editor.
