Silver Beach Towers Property etc. v. Silver Beach Investments of Destin, LC

• Court: District Court of Appeal of Florida
• Decided: February 20, 2017
• Docket: 16-4555
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SILVER BEACH TOWERS NOT FINAL UNTIL TIME EXPIRES TO PROPERTY OWNERS FILE MOTION FOR REHEARING AND ASSOCIATION, INC., SILVER DISPOSITION THEREOF IF FILED BEACH TOWERS EAST CONDOMINIUM ASSOCIATION, CASE NO. 1D16-4555 INC., and SILVER BEACH TOWERS WEST CONDOMINIUM ASSOCIATION, INC.,

Appellants/Cross-Appellees,

v.

SILVER BEACH INVESTMENTS OF DESTIN, LC, and THE CLUB AT SILVER SHELLS, INC.,

Appellees/Cross-Appellants. ____________________________/

Opinion filed February 21, 2017.

An appeal from an order of the Circuit Court for Okaloosa County. John T. Brown, Judge.

Daniel M. Schwarz, Audrey M. Fisher, and Ron M. Campbell of Cole, Scott & Kissane, P.A., Bonita Springs, for Appellants/Cross-Appellees.

Philip J. Padovano and Joseph T. Eagleton of Brannock & Humphries, Tallahassee; Bruce P. Anderson of Bruce P. Anderson Law, Destin, for Appellees/Cross- Appellants. PER CURIAM.

In this appeal of a judgment awarding appellees $1,827,372.18 plus pre-

judgment interest of $292,497.34, appellees filed a cross-appeal and motion for review

pursuant to Florida Rule of Appellate Procedure 9.310(f) seeking review of the lower

tribunal’s order staying that judgment. They argue that the lower tribunal’s order was

legally insufficient in that it conditioned the stay pending appeal on appellants’ posting

of a $175,000 bond but failed to apply the automatic bond procedure outlined in

Florida Rule of Appellate Procedure 9.310(b)(1), which appellees contend is the sole

method of obtaining a stay of a money judgment. We disagree with this contention,

and we affirm the trial court’s order.

Rule 9.310(b)(1) provides:

(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

Fla. R. App. P. 9.310(b)(1). This provision allows a party in an appeal of a money

judgment to obtain a stay from the lower tribunal without following the procedure

outlined in rule 9.310(a), which requires the filing of a motion to stay with the lower

tribunal. The rule does not, however, eliminate the ability of a party to obtain a stay

under rule 9.310(a) if it so chooses. 2 There exists a split among the District Courts of Appeal of this state on the

question of whether rule 9.310(b)(1) is the only method of obtaining a stay of a

judgment solely for the payment of money. The Third District has answered this

question in the affirmative. See Mellon United Nat’l Bank v. Cochran, 776 So. 2d 964,

964 (Fla. 3d DCA 2000). The Second District has reached the opposite conclusion.

See Platt v. Russek, 921 So. 2d 5, 7-8 (Fla. 2d DCA 2004); Waller v. DSA Group, Inc.,

606 So. 2d 1234, 1235 (Fla. 2d DCA 1992). This court has not yet weighed in on the

issue, but we now hold, along with the Second District, that rule 9.310(b)(1) is not the

only avenue for obtaining a stay of a money judgment. A trial court has the authority,

upon the motion of a party pursuant to rule 9.310(a), to enter a stay upon conditions

other than a bond, so long as the conditions are adequate to ensure payment.* Platt, 921

So. 2d at 7-8; Waller, 606 So. 2d at 1235.

Appellees cite several cases that they assert stand for the proposition that a trial

judge has no discretion to determine the bond amount in an appeal from a money

judgment. See QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass’n, Inc., 94 So. 3d

541 (Fla. 2012); Mellon, 776 So. 2d 964; Taplin v. Salamone, 422 So. 2d 92 (Fla. 4th

DCA 1982); Proprietors Ins. Co. v. Valsecchi, 385 So. 2d 749 (Fla. 3d DCA 1980).

However, we read these cases as standing not for the proposition that the only means

* Here, appellees do not argue that the conditions imposed by the court are insufficient. Instead, their argument is limited to whether the court has the authority to enter a stay 3 of staying a money judgment is to utilize the automatic stay procedure of rule

9.310(b)(1), but rather that when a party opts to utilize this automatic stay provision,

the trial court has no authority to alter the bond amount required by the rule. In QBE

Ins. Corp., the court wrote:

The Florida counterpart of this federal rule provides that if an order “is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond.” Fla. R. App. P. 9.310(b)(1) (emphasis added). . . . The purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds. If no bond is posted, the judgment creditor may execute on the judgment during the appeal. Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So. 2d 1170, 1171 (Fla. 3d DCA 1980). . . . Under Florida law, the posting of a “good and sufficient bond” as provided in rule 9.310(b) results in an automatic stay pending appeal of an adverse money judgment. Palm Beach Heights, 385 So. 2d at 1171; Proprietors Ins. Co. v. Valsecchi, 385 So. 2d 749, 750 (Fla. 3d DCA 1980). The trial court has no discretion to change this amount or deny a stay when the bond requirements have been met.

94 So. 3d at 555. The question the court was considering in QBE Ins. Corp. was

whether “language in an insurance policy mandating payment of benefits upon ‘entry

of a final judgment’ require[s] an insurer to pay its insured upon entry of judgment at

the trial level.” Id. at 545. In answering this question, the court “conclude[d] that a

contractual provision mandating payment of benefits upon ‘entry of final judgment’

does not waive the insurer’s procedural right to post a bond pursuant to rule 9.310(b)

to stay execution of a money judgment pending resolution of the appeal.” Id. at 555-

of a money judgment pursuant to rule 9.310(a) upon conditions other than a bond. 4 56. Thus, despite the court’s citation to Palm Beach Heights and Proprietors Ins. Co.,

we do not read the holding in QBE Corp. so broadly as to suggest that rule 9.310(b)(1)

is the only authorized means of staying a money judgment; rather, we interpret the

ruling as applying to a party’s rights and obligations when the automatic stay provision

of rule 9.310(b)(1) is utilized.

The phrase “[e]xcept as provided by general law and in subdivision (b) of this

rule” at the beginning of rule 9.310(a) does not alter the analysis. This phrase simply

carves out the alternative procedure created in rule 9.310(b)(1). For the reasons

expressed herein, we certify conflict with the Third District Court of Appeal’s decision

in Mellon United National Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA 2000).

Accordingly, appellees’ motion for review filed November 14, 2016, is denied, and the

trial court’s order on the motion to stay is affirmed.

MOTION DENIED; ORDER AFFIRMED.

WOLF, RAY, and MAKAR, JJ., CONCUR.