civil law matters the purpose of a bond is to secure the prevailing party against
the risk that the judgment debtor will be unable to meet the obligations
pending appeal and to protect the prevailing party from the costs that
it incurs in foregoing execution of judgment until the appeal is decided.
Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190 (5th Cir.1979). Florida’s counterpart to this
Federal rule is found at Florida Rule of Appellate Procedure 9.310 and
includes two distinguishable sections, (a) and (b).
Rule 9.310 establishes as a general rule that “[a] stay pending review
may be conditioned upon the posting of a good and sufficient bond, other
conditions, or both.” Specifically at section (a) of Rule 9.310,
Florida courts have found that the lower tribunal is given considerable
latitude in controlling the circumstances under which the proceedings
may be stayed pending review, with or without a bond.
See Cerrito v. Kovitch, 406 So. 2d 125, 126 (Fla. 4th DCA 1981).
Florida Rule of Appellate Procedure 9.310(a) provides that in most cases a party seeking to stay an order during appeal
must come before the lower tribunal first.
MSQ Properties v. Florida Dep't of Health & Rehabilitative Servs., 626 So. 2d 292, 293 (Fla. 1st DCA1993). “A party seeking to stay
a final or non-final order pending review shall file a motion in the lower
tribunal, which shall have continuing jurisdiction, in its discretion,
to grant, modify, or deny such relief.”
Id. A stay pending review
may be conditioned on the posting of a good and sufficient bond, other conditions,
or both. (Emphasis added).
Again, as it applies to section (a) of Rule 9.310, the lower tribunal has
been found to be in a “superior position to determine
whether a bond or other conditions should be required before an order is stayed and, if so, the amount of
the bond or the nature of the conditions.” (Emphasis added).
See Trombley v. Florida Real Estate Commission, 356 So.2d 813 (Fla. 4th DCA 1977). The superiority that the District Courts
have afforded the lower tribunal here is due to their ability to conduct
a factual finding by the weight of several factors that cannot be weighed
by the District Courts themselves.
Florida Rule of Appellate Procedure
9.310 (b) makes clear that when an order “is a judgment solely for the payment
of money, a party may obtain an automatic stay of execution pending review,
without the necessity of a motion or order, by posting a good and sufficient
bond.” Fla. R.App. P. 9.310(b)(1). Under Florida law, since the
posting of a “good and sufficient bond” as provided in rule
9.310(b) results in an
automatic stay pending appeal of an adverse money judgment,
the trial court has no discretion
to change this amount or deny a stay when the bond requirements have been met. (Emphasis added).
Palm Beach Heights, 385 So.2d at 1171;
Proprietors Ins. Co. v. Valsecchi, 385 So.2d 749, 750 (Fla. 3d DCA 1980).
Both sections of Rule 9.310 are distinct from one another, and where section
(a) liberally permits discretion as to whether or not staying of a matter
requires the posting of a bond , section (b) does not permit discretion
at all. How then, does a final judgement of foreclosure play into all
of this information? A judgment for recovery of money otherwise secured,
as by a mortgage on real property, calls into play the general rule set
out in (a) rather than the exception contained in (b). This conclusion
is reinforced by the fact that a final judgment in foreclosure is not
an order “solely for the payment of money.”
See again Cerrito v. Kovitch, 406 So. 2d 125, 126 (Fla. 4th DCA 1981). Therefore, with the right legal
team one can not only hope to fight the appeal and win, but you hopefully
can do so without suffering any greater loss than you already have. Make
an appointment to see me today!