MOSAR DEVELOPERS, INC., APPELLANT,
v.
CREECH & WILSON, INC. ET AL., APPELLEES
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Mosar Developers sought to use funds it had deposited in the court registry as part of a supersedeas bond to stay execution of a $130,000 judgment pending appeal. The circuit court denied this request, but the appellate court reversed, holding that Mosar could use the registry funds as security for the bond since the judgment creditor would suffer no prejudice and would ultimately receive payment from those funds if successful on appeal.
The circuit court erred in refusing to allow Mosar to use the registry funds as part of the supersedeas bond amount. A judgment debtor may use such registry funds as part of the bond securing a stay of judgment pending appeal when the judgment creditor has an exclusive claim to those funds and will suffer no prejudice.
[1] A supersedeas bond is intended to protect the prevailing party against the consequences of a stay, not against the appeal itself.
[2] When a money judgment is appealed, the supersedeas bond must be sufficient to cover the judgment amount.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If Creech & Wilson is successful on this appeal, it will be entitled to the fund in the registry of the court. No other creditor has any prior or equal claim thereto. Thus, it appears to us that there is no reason why Mosar should not be able to use that fund as part of a bond to supersede the judgment pending appeal.”
Establishes the court's core reasoning that the judgment creditor has exclusive claim to the registry funds and therefore suffers no prejudice from their use as bond security
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCreech & Wilson obtained a $130,000 judgment against Mosar Developers. Mosar deposited $130,000 plus interest in the court registry to satisfy its cre…
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PER CURIAM.
Pursuant to Florida Appellate Rule 9.310(f), Mosar Developers, Inc., seeks review of a circuit court order denying its motion to permit it to use funds on deposit in the registry of the court as security for supersedeas pending Mosar’s appeal from a money judgment.
Creech & Wilson, Inc., obtained a judgment in the amount of $130,000 against Mosar. After filing a notice of appeal from that judgment Mosar sought permission of the circuit court to use as part of a superse-deas bond the sum of $130,000, plus interest, which Mosar had deposited in the registry of the court to satisfy its creditors. The circuit court set the amount of the superse-deas bond at $149,500 and denied Mosar’s motion to use as part of the bond the funds on deposit in the court registry. It is that order which we have for review.
It was conceded in oral argument on this motion for review that, if Creech & Wilson is successful on this appeal, it will be entitled to the fund in the registry of the court. No other creditor has any prior or equal claim thereto. Thus, it appears to us that there is no reason why Mosar should not be able to use that fund as part of a bond to supersede the judgment pending appeal. If Creech & Wilson is successful on Mosar’s appeal from the judgment of $130,000, Creech & Wilson will be paid from said fund, plus the remainder of the bond for $149,500. No prejudice can accrue to Creech & Wilson from the use of said fund or said bond. The purpose of a supersedeas bond is:
to protect the party adversely affected against the consequences of the superse-deas or stay, and not against the appeal when the appeal is of right, except when a money judgment or decree is appealed, in which event the bond to be exacted is to pay same. Bernstein v. Bernstein, 43 So. 2d 356, 358 (Fla.1959).
In view of the foregoing we hold the circuit court erred in refusing to allow Mo-sar to use the fund in the registry of the court as part of the amount of the bond of $149,500 necessary to supersede the judgment on appeal.
Accordingly, the order appealed from is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion. The circuit court is directed to allow Mosar a reasonable time to post the remainder of the amount of the bond, whereupon our stay of the cause entered September 25, 1980, shall be vacated.
REVERSED AND REMANDED with directions.
LETTS, C. J., and DOWNEY and AN-STEAD, JJ., concur.
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Citator
Cited By
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Dice v. Cameron, 424 So. 2d 173 (Fla. 3d DCA 1983)…consequently set the amount of the supersedeas bond at 115% of that sum. I think the cases of Bernstein v. Bernstein, 43 So. 2d 356 (Fla.1949); Cerrito v. Kovitch, 406 So. 2d 125 (Fla. 4th DCA 1981); Mosar Developers, Inc. v. Creech & Wilson, Inc., 404 So. 2d 118 (Fla. 4th DCA 1981); and Fidelity and Deposit Co. of Maryland v. Atlantic National Bank of Jacksonville, 234 So. 2d 736 (Fla. 3d DCA 1970), if not controlling precedent, are at least instructive as to the proper amount of bond in this case. The purp…
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Zuckerman v. Hofrichter & Quiat, P.A., 622 So. 2d 1 (Fla. 3d DCA 1993)…A 1991); Florida Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033 (Fla. 4th DCA 1983), review dismissed, 453 So. 2d 43 (Fla.1984); see also Cerrito v. Kovitch, 406 So. 2d 125 (Fla. 4th DCA 1981); Mosar Developers, Inc. v. Creech & Wilson, Inc., 404 So. 2d 118 (Fla. 4th DCA 1981); The Florida Bar, Florida Appellate Practice § 9.13 (2d ed. 1986); Phillip J. Padovano, Florida Appellate Practice § 8.4 (1988). The trial court therefore had discretion under Rule 9.310(a) as to the nature and extent of the secu…
Authorities Cited
- Bernstein v. Bernstein, 43 So.2d 356 (Fla. 1949)