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Supersedeas Bonds & Real Property

October 13, 2020 | David C. Borucke

Guided by a federal standard, the Third District Court of Appeal recently clarified the factors relevant to calculating the amount of a supersedeas bond where the final judgment pertains to real property.

First, some basics. A party on the losing end of a final judgment will frequently seek appellate review. The filing of a notice of appeal, however, does not automatically stay the execution of the final judgment. Instead, the appellant must first seek a stay from the trial court. If not successful, the appellant may then seek review of the trial court's denial of a stay from the appellate court, which will apply a deferential "abuse of discretion" standard. The metes and bounds of that discretion are only broadly provided by Rule 9.310, which states that "[a] stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both." Fla. R. App. P. 9.310(a). The Rule provides little additional guidance. Of course, many litigants will be more familiar with the Rule's "exception" for money judgments, which may be stayed without trial court involvement by posting a bond in the amount required by the Rule (i.e., the amount of the judgment and two years statutory interest). But what about judgments that involve equitable relief and/or contractual rights which cannot be readily quantified? What amount protects the successful litigant, now an appellee?

In Capital Development Group, LLC, v. Buena Vista Terminal, LLC, — So. 3d –, Case No. 3D19-2346 (Fla. 3d DCA, July 1, 2020), the underlying dispute involved a pending contract for the sale of commercial property. The trial court construed the contract as "terminable at will" and specified, in a final judgment, the buyer had 60 days to close or to forfeit its contractual rights. The buyer, now appellant, moved for a stay pending appeal, and the trial court determined that a supersedeas bond of $1,680,000.00 would be required. The trial court did not, however, show its work in the stay order, leaving the how and why of the amount calculated unexplained.

Characterizing the amount set in the stay order as "excessive and arbitrary," the buyer sought review at the Third District. The appellate court could not find any Florida precedent for "the specific factors that must be considered in setting a supersedeas bond pertaining to real property." Looking to federal precedent, the Third District noted five factors relevant to the task: "(1) the time value of the property; (2) the diminution in value or destruction of the property, quantified as the cost of insurance on the property; (3) the cost that the appellee will incur for the appeal; (4) the estimated taxes for the property; and (5) any other expenses that the appellee will incur as a result of the delay caused by the
appeal."

The decision indicates that each of these factors should be considered in assessing the amount of the bond, and stay orders should contain written findings. Expressing no opinion as to whether the amount of the bond was appropriate, the Third District reversed for the trial court to re-examine the issue in


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About the author

David C. Borucke

Partner

Mr. Borucke has over nineteen years of appellate experience and has handled appeals in each of the five Florida District Courts of Appeal, the Florida Supreme Court, the federal Eleventh Circuit Court of Appeals, and the United States Supreme Court.[...] Read more


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