Bradley Muhs authors article “What to Know About Stays Pending Appellate Review”
When preparing to file an appeal, an important consideration is whether a stay pending review is necessary. A stay pending review preserves the status quo through the appellate process, and a judgment or order cannot be acted upon so long as the stay is in place. Pursuant to Florida Rule of Appellate Procedure 9.310, a party can seek a stay pending review of either a final or non-final order.
The lower tribunal retains jurisdiction to enter a stay even after issuing its final judgment or order. Although the lower tribunal generally has broad discretion to grant or deny a stay, a stay must be granted when the movant shows (1) a likelihood of success on appeal, and (2) a likelihood of harm absent the entry of a stay.
The appellate courts have jurisdiction to review an order issued by the lower tribunal on a motion to stay. Review of an order on a motion to stay is sought by filing a motion with the appellate court.
The appellate courts also have jurisdiction to issue a stay pending review as an initial matter. However, the party seeking a stay should first seek a stay from the lower tribunal before requesting a stay from the appellate court.
In an appeal from a money judgment, the party seeking a stay pending review is not required to file a motion for stay. The party seeking the stay need only post a supersedeas bond equal to the principal amount of the judgment plus twice the statutory rate of interest on the total amount of the judgment. In the event the party cannot afford to post a bond in the necessary amount, he or she will need to file a motion for stay with the lower tribunal, which will have discretion to grant or deny the requested stay.
A supersedeas bond posted to stay a money judgment will include certain conditions which, until satisfied, will prevent the release of the bond. The bond must include, at least, a condition to pay or comply with the order in full, including costs, interest, fees, and damages for delay, use, detention, and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may be required by the lower tribunal, which shall have continuing jurisdiction to oversee the sufficiency of the bond.
Although a stay pending review is intended to remain in effect during the pendency of all review proceedings, the stay will remain in effect only until such time as an appellate court has issued its mandate, which automatically occurs pursuant to Florida Rule of Appellate Procedure 9.340 after the expiration of fifteen days from the date of the appellate court’s order or opinion. This is an important consideration for appellants intending to seek second-tier review of the appellate court’s decision; the Rules of Appellate Procedure governing mandates and stays pending review interact so that the appellant has only fifteen days in which to move in the appellate court for a stay of mandate. If such motion is granted, any stay and bond previously in effect continues through the second-tier review proceeding; otherwise, the stay will be lifted.
It is always important to have a general idea of the direction a case might be headed, including on appeal. Litigants should keep in mind the procedural requirements necessary to make sure they — or their judgments — are protected throughout the appellate process. Nowhere is this consideration more important than when contemplating requesting a stay pending review.