August 22, 2009

Bonds, Stays and Writs of Garnishment: A Cautionary Tale

Individuals that seek to appeal a lower court judgment that involves solely a monetary judgment, are entitled to an automatic stay by posting a good and sufficient bond, pursuant to Florida Rule of Appellate Procedure 9.310(b)(1). The rule requires the bond be set in an amount that equals the judgment amount plus twice the statutory rate of interest.  The bond may be in the form of a bond with a principal and a surety company authorized to do business in the State of Florida or may be cash deposited with the circuit court clerk’s of court.  The bond is deemed posted, thus making the automatic stay effective, on the date the bond is filed with the clerk of court.  But, appellants and trial counsel alike BEWARE.

The posting of a good and sufficient bond stays further proceedings and does not act to interfere with what has already been done.  This fact becomes of particular importance in the context of the issuance of a writ of garnishment.  If the money judgment involves a final adjudication as to amount, the party seeking to collect on the judgment may motion the court for a writ of garnishment.  Said writ will issue upon the filing of the motion and may be served upon, the owing party’s bank, which will likely result in a freeze of that party’s bank account or accounts.  Florida Statute section 77.0305 outlines the requirements and procedure for obtaining a writ of garnishment.

Therefore, it is prudent that appellants seeking review of a final money judgment entered against them, who likewise seek an automatic stay pending review under Rule 9.310(b)(1), act expeditiously in posting a good and sufficient bond.  In the instance that a writ of garnishment has already issued, posting a bond after the fact only serves to stay further garnishment proceedings, but the posting of the bond will not un-freeze any bank accounts that may have already been frozen upon service of the writ of garnishment.  The posting of the bond will, however, stay further collection proceedings.  In short, individuals seeking to stay collection proceedings when seeking review of a final monetary judgment in the appellate court must act quickly and be sure that a good and sufficient bond is posted with the circuit court clerk as soon as possible.