Putting the brakes on litigation: stays pending review.

• Author: Reiter, Jack R.

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...