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Is a Bond Required? That Is The Question

In 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). Id.

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. Id.

By contrast, 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). See 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!