GREAT AMERICAN INSURANCE COMPANY, AN OHIO CORPORATION, APPELLANT,
v.
STOLTE, INC., A CALIFORNIA CORPORATION, APPELLEE
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Great American Insurance Company appeals a judgment and paid it in full after its motion for retrial was denied. Stolte moved to dismiss the appeal arguing the payment mooted it, but the court held that absent a stay of execution or compromise agreement, payment of a judgment does not moot an appeal because such payments are involuntary, made under the threat of execution.
No. Absent a stay of execution or a condition that effectively constitutes such a stay, payment of a judgment does not moot the judgment payor's appeal, provided the payment was not made by way of compromise or associated with an agreement not to pursue an appeal. Such payments are involuntary because they are constructively made under threat of execution.
[1] Payment of a judgment is considered involuntary and does not moot an appeal when made without a stay of execution, unless the payment was part of a compromise or agreemen…
[2] A judgment payor's appeal is not mooted by payment of the judgment when the payment is made under the threat of execution.
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Join FLexlaw to unlock all legal intelligence“absent a stay of execution or a condition that effectively constitutes such a stay, payment or satisfaction of a judgment is involuntary, and does not moot the judgment payor's appeal, provided the payment was not made by way of compromise or associated with an agreement not to pursue an appeal”
States the core holding that involuntary payment under threat of execution does not moot an appeal
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Join FLexlaw to unlock all legal intelligenceGreat American Insurance Company was the judgment payor and Stolte, Inc. was the judgment payee. After Great American's motion for retrial was denied,…
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GLICKSTEIN, Judge.
Judgment payee Stolte, Inc. has moved to dismiss judgment payor Great American Insurance Company’s appeal. Stolte contends that the appeal is barred because Great American’s payment in full of the amount of the judgment, after Great American’s motion for retrial was denied, constitutes voluntary payment, and moots the appeal.
We deny the motion. We find that it is the law in Florida that, absent a stay of execution or a condition that effectively constitutes such a stay, payment or satisfaction of a judgment is involuntary, and does not moot the judgment payor’s appeal, provided the payment was not made by way of compromise or associated with an agreement not to pursue an appeal. Such payments are at least constructively made under threat of execution, as the judgment creditor is free to obtain execution at any time.
A sister court recently wrote the following:
While most courts hold that payments made under threat of execution are involuntary, Ronette Communication Corp. v. Lopez, 475 So. 2d 1360 (Fla. 5th DCA 1985); see also, Annot. 39 A.L.R.2d 153, 160 § 5(b); Koemer and Lambert, a Professional Law Corp. v. Allstate Insurance Company, 363 So. 2d 546 (La.App.1978); Freeman v. Wintroath Pumps, Etc., 13 Ariz.App. 182, 475 P. 2d 274 (1970); Slater v. Breakwater Homes Association, 413 So. 2d 148 (Fla. 4th DCA 1982), their reasoning is based on the ever-present threat of execution. See, e.g., Freeman, supra. However, where a stay has been issued the payment is voluntary. Bull v. Doss Brothers [Electric Construction Company, 51 Colo. 459, 119 P. 156 (1911)1 Culp v. Sandoval, supra [22 N.M. 71, 159 P. 956 (1916)].
Frank Silvestri Investments, Inc. v. Sullivan, 486 So. 2d 20, 21 (Fla. 5th DCA 1986). We think that the principle which the Fifth District Court of Appeal characterized as the holding of most courts is the law of Florida. That principle applies in the present facts and circumstances. Also, like the Fifth District Court of Appeal in another case, we have failed to discover the rationale for the rule that voluntary payment of a judgment precludes appeal. See Ronette Communications Corp. v. Lopez, 475 So. 2d 1360, 1360 (Fla. 5th DCA 1985).
Motion to dismiss the appeal is denied.
LETTS and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Grant v. Wester, 679 So. 2d 1301 (Fla. 1st DCA 1996)…of a judgment is involuntary as a matter of law and "does not moot the judgment payor’s appeal, provided the payment was not made by way of compromise or associated with an agreement not to pursue an appeal.” Great American Ins. Co. v. Stolte, Inc., 491 So. 2d 352, 352 (Fla. 4th DCA 1986); Ronette. But the appellant here is not a "judgment payor.” Mr. Grant has made no payment nor acquiesced in any aspect of the judgment adverse to him. The Westers, appellees in the main appeal, made payment under the immedi…
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Nazih Khazaal v. Browning, 707 So. 2d 399 (Fla. 5th DCA 1998)…t or satisfaction of a. judgment is involuntary, and does not moot the judgment payor’s appeal, provided the payment was not made by way of compromise or associated with an agreement not to pursue an appeal.” Great American Ins. Co. v. Stolte, Inc., 491 So. 2d 352, 353 (Fla. 4th DCA 1986). The fact that appellant could have obtained a stay of execution pending appeal by posting a superse-deas bond is of no legal import because his right to appeal is not conditioned "upon the posting of a supersedeas bond. Hor…
Authorities Cited
- Ronette Commc'ns Corp. v. Pasquale Lopez, 475 So. 2d 1360 (Fla. 5th DCA 1985)
- Frank Silvestri Invs., Inc. v. Sullivan, 486 So. 2d 20 (Fla. 5th DCA 1986)
- 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)