Chapter 4 Stay and Supersedeas
| Library | Handling Appeals in Arkansas (2021 Ed.) |
A. Introduction
You sit in your chair turning the case over in your mind. You represented your client skillfully. You made a good record with timely objections and rulings from the circuit court — though you believe it erred. Despite your best efforts, the court has entered a judgment against your client. You glance at your desk, content that your notice of appeal will be ready before your deadline, and smile, satisfied that your client will soon be vindicated. But a nagging doubt repeats: "Have I missed something?" Yes. The sands of time are running against your client. On the 11th day after the judgment is filed, it will become active, and your opponent can enforce it.
Do not panic. The law provides a procedure for protecting your client's property while you appeal. You can supersede the judgment by filing a motion asking the circuit court (or appellate court) to stay the judgment pending appeal and present the court with a supersedeas bond as surety that the judgment will be paid if your appeal fails. Below, you will find answers to your how, when, where, and why questions about superseding a civil judgment during an appeal and some practical pointers.
B. The Nuts and Bolts of Staying a Civil Judgment with a Supersedeas
1. Why Stay?
Simple: it is not in your client's best interest to pay a judgment now that the appellate court might reverse some months later.
ARCP 62(a) states that "no execution or enforcement proceedings shall issue on any judgment or decree until after the expiration of ten (10) days from the entry thereof." So there is an automatic 10-day stay on the judgment. But that automatic stay evaporates on day 11 after the judgment is filed, allowing the prevailing party to execute on the judgment.
Do not fall into the trap of thinking that a notice of appeal or filing the record on appeal is all you must do to keep the wolves at bay. Filing an appeal does not automatically stay execution of a judgment during appeal. You need to act, and quickly — unless your client likes other people taking his property.
2. How to Get a Stay and Supersedeas 101
Getting a supersedeas to stay the judgment is not complex. But it does require some dedicated effort. File a motion in the appropriate court for a stay of the judgment. Present a supersedeas bond with sufficient surety. Get your stay order, and have the clerk enter a supersedeas—a fancy name for a document warning appellee that his right to execution is stayed. ARCP 62 and ARAP-Civ 8. Those are the basics. Are there nuances? Sure. But nothing you can't handle.
3. Whom Do I Ask for the Supersedeas?
Both the circuit court and the appellate court can grant a stay and supersedeas. ARCP 62 and ARAP-Civ 8. Which should you go to? Timing dictates the answer.
(a) Early Birds Go to the Circuit Court
The circuit court is the first place you can go for a stay, and getting a stay there is typically easier. So, as Yogi Berra said, go to the circuit court "immediately, if not sooner."
The circuit court can grant a stay and supersedeas once the judgment is filed. The circuit court retains that authority until the record is docketed with the appellate court, regardless of whether you have already filed the notice of appeal. ARCP 62(d). After the appellate record is filed, the circuit court loses its power to grant a stay and supersedeas; then you must turn to the appellate court.
Take heed: gaps between the 11th day and the day you tender your supersedeas bond allow your opponent a chance to execute, thereby creating a lien that lasts for the entire appeal. The circuit court gives you the best chance to avoid such gaps; therefore, it is the best place to go for your stay. You can file a motion, tender the supersedeas bond, and get your supersedeas before the 11th day if you act quickly and with purpose.
Do not worry if the stay order is not filed with the circuit clerk and the actual supersedeas issued by day 11 — the stay of execution relates back to the date a valid supersedeas bond was tendered. Ryder Truck Rental, Inc. v. Sutton, 305 Ark. 374, 807 S.W.2d 909 (1991). See Part E(2) of this chapter for more on the date the stay becomes effective.
(b) Procrastinators and Late Comers Go to the Appellate Court
Once the record is filed with the appellate court, you must seek your stay and supersedeas from the appellate court. ARCP 62(d); ARAP-Civ 8(b). Note: any circuit-court order granting a stay entered after the appellate record is lodged is void. See, e.g., Burks v. Liberty Bank, 2014 Ark. App. 672, at 6.
The procedure outlined in ARAP-Civ 8(c) is virtually identical to that required by ARCP 62. You simply file a motion in the appellate court and present a supersedeas bond, which promises to pay the judgment, interest, and costs on appeal if you lose the appeal or fail to prosecute it in good faith. Here, too, the bond must be backed by surety that the court, in its discretion, accepts. Unbacked promises to pay do not suffice.
If your opponent has slept on his rights and not attempted to execute until after you file the record on appeal, go straight to the appellate court, move for a stay, and simultaneously tender your supersedeas bond before your opponent executes on your client's property. See Part B(5) of this chapter for the problems facing those who do not stay execution.
4. What Must I Prove to Get a Stay and Supersedeas?
Though a stay and supersedeas are generally easy to obtain, they are discretionary. See Smith v. Denton, 313 Ark. 463, 464, 855 S.W.2d 322, 323 (1993).
Arkansas law establishes four factors to guide courts considering a stay request: (1) the threat of irreparable harm to the movant if the stay is not granted; (2) the balance between the harm to the party in opposition that will be caused by granting the stay and the harm to the party seeking a stay if it is not granted one; (3) the probability that the appellant will succeed on the merits of the appeal; and (4) public policy issues, if any. Arkansas Elec. Consumers v. Arkansas Pub. Serv. Comm'n, 31 Ark. App. 217-A, 217-D, 791 S.W.2d 719, 720 (1990). These factors are virtually identical to those that guide a court's decision whether to grant an injunction because they were borrowed from the injunction context. Federal courts also use these factors when considering a stay. See, e.g., Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981).
If you feel faint at the thought of having to satisfy a four-factor test before your appeal even gets out of the gate, there is good news. In the run-of-the-mill tort or contract case for money damages, the circuit court pays little or no attention to these four factors. By custom, most circuit courts will summarily grant a motion for stay and supersedeas if you move for a stay and present your supersedeas bond.
Do not misunderstand. Arguments about the four factors that can be stated succinctly should not be left out of the motion. But 99 percent of the time those factors are not strictly applied by circuit courts. The Arkansas Supreme Court has recognized this customary practice and impliedly condoned it: "Ordinarily a writ of supersedeas is obtainable as a matter of course with respect to a judgment for damages in a contract or tort action." Goodin v. Goodin, 240 Ark. 541, 542, 400 S.W.2d 665, 666 (1966).
Ah, beware the one percent. If your case is one that primarily asks the court to make someone do something or prevent them from doing something (that is, the relief sought is injunctive in nature — even though no injunction is actually sought), or staying the judgment would cause such a result, you may find yourself in the one percent of cases where getting a stay is an uphill struggle. The courts may scrutinize each of the four factors under those circumstances because of the close resemblance to an injunction request.
The easiest way to understand this concept is with an example. In Arkansas Electric Energy Consumers v. Arkansas Public Service Commission, an unincorporated association of electric customers sued the Arkansas Public Service Commission to prevent Arkansas Power...
To continue reading
Request your trial