RONETTE COMMUNICATIONS CORP., A FLORIDA CORPORATION, APPELLANT,
v.
PASQUALE LOPEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RAMON LOPEZ, DECEASED, PASQUALE LOPEZ AND FRANCIS LOPEZ, APPELLEES
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Ronette Communications appealed a wrongful death judgment against it but paid the judgment to avoid execution levy before the appeal was decided. The court held that the payment was involuntary and did not waive the appellant's right to appeal, distinguishing between voluntary payments (which moot the case) and involuntary payments (which do not).
The court held that appellant's payment was involuntary, not voluntary, and therefore did not waive or moot the right to appeal. The majority rule distinguishing voluntary from involuntary payments was applied, with involuntary payments not resulting in waiver of appeal rights.
[1] Payment of a judgment to avoid execution or levy on property does not constitute a voluntary payment that waives the right to appeal.
[2] A party's right to appeal is not conditioned upon posting a supersedeas bond.
Previewing 2 of 3 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“The majority rule is that if a defendant who has suffered the entry of an adverse money judgment against him voluntarily pays the judgment, the case is moot, but if the payment is involuntary, it does not result in a waiver of the right to appeal.”
Establishes the legal standard distinguishing voluntary from involuntary payments and their effect on appeal rights
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Join FLexlaw to unlock all legal intelligenceA jury verdict resulted in a final judgment against Ronette Communications awarding damages for wrongful death of Ramon Lopez. Rather than post a supe…
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DAUKSCH, Judge.
This cause is before the court on appel-lees’ motion to dismiss the appeal. They submit that appellant waived its right to appeal when it paid $1,204,651.26 to appel-lees pursuant to the final judgment in this ease. We deny the motion.
Pursuant to a jury verdict, the lower court entered final judgment against appellant awarding appellees damages in the amount stated for the wrongful death of Ramon Lopez. Choosing not to stay execution of the judgment by posting a bond pursuant to Florida Rule of Appellate Procedure 9.310(b)(1), appellant filed its notice of appeal to this court. Subsequently, appellees obtained a writ of execution and directed the sheriff to levy upon appellant’s property. To avoid such levy, appellant paid the judgment.
The majority rule is that if a defendant who has suffered the entry of an adverse money judgment against him voluntarily pays the judgment, the case is moot, but if the payment is involuntary, it does not result in a waiver of the right to appeal. See 4 Am.Jur.2d Appeal and Error § 260 (1962).
Appellees do not demonstrate, and we have not discovered through independent research, a rationale underlying the rule that voluntary payment of a judgment renders the case moot and precludes appeal while an involuntary payment does not. In any event, however, we conclude that appellant’s payment in the instant case was involuntary. In Slater v. Breakwater Homes Association, 413 So. 2d 148 (Fla. 4th DCA 1982), the court stated that appellant’s payment of a judgment awarding attorney fees to avoid execution did not terminate her right to appeal. In the present case, we have no difficulty concluding that appellant likewise did not lose its right to appeal when it paid the judgment after execution to avoid a levy on its property.1 The fact that appellant could have obtained a stay of execution pending appeal by posting the bond described in appellate rule 9.310(b)(1) but did not is of no legal import here. Appellant’s right to appeal is not conditioned upon the posting of a supersedeas bond. Horn v. Horn, 73 So. 2d 905 (Fla.1954); Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d DCA 1973).
We note, however, that appellant’s choice of paying the judgment rather than posting a bond pending appeal is a risky one. Although appellant shall be entitled to reimbursement from appellees in the event the final judgment is reversed on appeal, if appellees at that time no longer have the money and are judgment proof, that is appellant’s peril. See Sundie v. Haren, 253 So. 2d 857 (Fla.1971). The motion to dismiss is
DENIED.
SHARP and COWART, JJ„ concur. . Contrary to appellee's assertion, the decision in Reserve Insurance Co. v. McPeak, 181 So. 2d 662 (Fla. 1st DCA 1966) did not establish a two-prong test to determine the voluntariness vel non of payment of a judgment awarding damages. The court stated only that payment after execution was issued and levy made was not voluntary.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, Inc., 94 So. 3d 541 (Fla. 2012)…ring the appeal. Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So. 2d 1170, 1171 (Fla. 3d DCA 1980). If the judgment is reversed, then the appellant is entitled to have its property restored by the appellee. Ronette Commc’ns Corp. v. Lopez, 475 So. 2d 1360, 1361 (Fla. 5th DCA 1985). However, an appellant who does not post a bond runs the risk that at the time of reversal, the appellee may no longer have the money and may be judgment-proof. Id. Under Florida law, the posting of a “good and sufficient…
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E. Qualcom Corp. v. Global Commerce Ctr. Ass'n, Inc., 59 So. 3d 347 (Fla. 4th DCA 2011)…id a forced sale of property, the payment is deemed “involuntary” and the payment does not result in a waiver of the right to appeal the judgment. See Whipple v. JSZ Fin. Co., 717 So. 2d 608, 609 (Fla. 4th DCA 1998); Ronette Commc’ns Corp. v. Lopez, 475 So. 2d 1360, 1360 (Fla. 5th DCA 1985). While this appeal was pending, the trial court granted a satisfaction of judgment. On remand, the trial court must vacate the satisfaction of judgment as the trial court was without jurisdiction to enter the satisfaction…
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Alexander v. Adams, 501 So. 2d 15 (Fla. 4th DCA 1986)…y having been procured and the premises having been rerented as a consequence, the appeal was moot. It is well established that a party is not required to obtain a stay in order to appeal an adverse judgment. Ronette Communications Corp. v. Lopez, 475 So. 2d 1360 (Fla. 5th DCA 1985); See also Green v. Green, 254 So. 2d 802 (Fla. 3d DCA 1971), writ discharged, 264 So. 2d 838 (Fla.1972). While the remedy initially sought by petitioner is apparently no longer available, her demand for “other relief” makes a mon…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Horn v. Horn, 73 So. 2d 905 (Fla. 1954)
- Sundie v. Haren, 253 So. 2d 857 (Fla. 1971)
- Fitzgerald v. Addison, 287 So. 2d 151 (Fla. 2d DCA 1973)
- Reserve Ins. Co. v. Adelaide G. McPEAK, 181 So. 2d 662 (Fla. 1st DCA 1966)
- Burgess v. State, 413 So. 2d 148 (Fla. 5th DCA 1982)
- Slater v. Breakwater Homes Ass'n, 413 So. 2d 148 (Fla. 4th DCA 1982)