Utah Appellate Law Update Staying Enforcement of a Judgment During Post-trial and Appellate Proceedings

• Publication year: 2014
• Pages: 28
• Citation: Vol. 27 No. 5 Pg. 28

Utah Appellate Law Update Staying Enforcement of a Judgment During Post-Trial and Appellate Proceedings Vol. 27 No. 5 Pg. 28 Utah Bar Journal October, 2014

September, 2014

Julie J. Nelson & Clemens A. Landau, J.

I magine that you are about to start a trial or a hearing on a dispositive motion. No matter how sure you are of prevailing, you and your client should devote serious thought to how you will respond if the proceeding culminates in the entry of an adverse judgment that will be enforced against your client. You first should consider whether you will want to challenge the adverse judgment through post-trial motions or an appeal. If so, you will need to consider whether - and how - to stay enforcement of the judgment pending resolution of post-trial and appellate proceedings.

While the typical circumstance in which a stay is needed concerns the enforcement of a money judgment, it is worth noting that your client may need a stay in other circumstances as well. To provide just one example, if the only remedy your client seeks is specific performance and after the entry of judgment the opposing party transfers the property to a bona fide purchaser, any further proceedings may be moot. Richards v. Baum, 914 P.2d 719, 722 (Utah 1996).

This article describes the procedures for staying the enforcement of a judgment under rule 62 of the Utah Rules of Civil Procedure and addresses the main issues you should consider when devising a strategy to stay enforcement of a judgment.

Timing of the Requirement for a Supersedeas Bond

Once the district court enters a judgment, rule 62(a) automatically stays enforcement for fourteen days. Utah R. Civ. P. 62 (a). That fourteen-day period is often too short to obtain a commercial bond or other alternative security, let alone to secure the court's approval and have it enter the stay.

If you have not begun the process before the entry of judgment, you should ask the creditor to stipulate to a temporary stay of enforcement beyond the fourteen-day period. If the creditor is unwilling to stipulate, you can ask the district court to enter a stay for the period of time you will reasonably need to secure the bond, e.g., thirty days. But because any stay beyond the fourteen-day period without posting security is not guaranteed, the best practice is to complete the groundwork necessary for obtaining the bond or other security well before the entry of judgment.

When a Stay Is Not Obtained During the Fourteen-Day Stay

If the court has not stayed execution of the judgment before the fourteen-day stay expires, the judgment creditor may initiate enforcement proceedings as soon as the fourteen-day period expires. And once enforcement proceedings have begun, the effect of a subsequently entered stay on those enforcement proceedings is far from clear.

If you request a stay within a reasonable amount of time after the expiration of the fourteen-day stay, most courts will stay ongoing enforcement attempts in the interest of "preserv[ing] the status quo." C.G. Marck & Assocs. v. Peng, No. 3:05-CV-7391, 2008 WL 918435, at *1 (N.D. Ohio Apr. 1, 2008) (staying enforcement proceedings initiated prior to the...