Appellate stays and bonds.

• Author: Elligett, Raymond T., Jr.
• Position: Florida

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.[2] 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.[3] Review of orders on stays is by motion in the appellate court.[4]

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.[9] 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.[6] The trial court cannot require a party to post a bond.[7]

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.[8] 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.[9]

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.[10]

Stays in Other Proceedings

When the order appealed is not for the payment of money, the...