Wymer v. Wymer (In Re Wymer)

5 B.R. 802

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: June 16, 1980
• Docket: BAP No. 80-0001, Bankruptcy No. 79-23464-WH, Adv. No. 79-0008
• Status: Published

Opinions

OPINION AND ORDER

Before KATZ, GEORGE and HUGHES, Bankruptcy Judges.

HUGHES, Bankruptcy Judge.

Appellant has obtained two orders from this panel, the first specifically staying an execution sale scheduled for the following day and the second generally staying enforcement of the judgment pending appeal. Having reexamined the record and reviewed applicable law, we conclude that by granting the second stay the panel departed from fundamental principles of appellate review and unnecessarily assumed responsibilities that ordinarily are reserved to the trial court.

Accordingly, we now vacate that order on the ground that appellant has failed to demonstrate any abuse of discretion by the trial judge and on the further ground that he failed to show that he was unable to obtain relief from the trial judge.

Termination of the stay of enforcement is postponed 10 days from entry of this order to permit appellant, if he choses, to post a supersedeas bond of $12,500 as previously approved by the trial judge.

Appellant has deposited $3500 with the clerk of the bankruptcy court as a condition of the stay that is now being vacated. These funds are to remain on deposit, subject to such disposition as the trial court in its discretion shall order.

Nothing in this order should be read as limiting the trial court’s discretion to modify the amount of the supersedeas bond, or to fashion an alternative bond involving proceeds of an execution sale.

I.

Background

A state court judgment was entered in favor of appellee creditor against appellant debtor in 1974. A writ of execution was issued on that judgment in the amount of $8146.05 on September 26, 1979. Thereafter, on October 29, 1979, the Marshal of San Bernardino County seized four motor vehicles belonging to debtor.

Debtor moved the state court unsuccessfully on November 9, 1979, to claim the vehicles exempt and to quash the writ. Four days later he filed bankruptcy, effectively staying the execution sale. In early December, creditor appellee commenced an action to determine the dischargeability of the state court judgment. Trial concluded on January 16, 1980, and a judgment holding the state court judgment nondischargeable was entered by Judge William H. Hyer on January 22, 1980. This judgment was appealed and is pending before this panel.

On or about January 22, debtor filed a motion for stay of judgment pending appeal, as well as the notice of appeal. On January 31, 1980, the trial judge accepted the stipulation of the parties and fixed the amount of the supersedeas bond at $12,500.

The bond was not posted. However, on February 25, 1980, appellant brought an emergency motion to this panel in which he prayed “that the Bankruptcy Appellate Panel issue a stay order halting the sale scheduled by the Marshal, San Bernardino County, California, for 10:00 a. m. on February 26, 1980.” In presenting the motion to this panel, debtor alleged that the “grounds for this emergency motion were presented to the Honorable David Naugle in the absence of Judge Hyer on Friday, February 22, 1980, at which time Judge Naugle denied the motion.”

We granted relief and the Marshal’s sale was cancelled. On the afternoon of February 26, the panel heard arguments of counsel by conference telephone call and granted a stay pending appeal on condition appellant post a $3500 supersedeas bond. That order, dated February 28 and filed March 3, is the subject of this memorandum.

II.

Stays Pending Appeal

Federal courts (whether trial or appellate) have statutory or inherent power to stay judgments and orders pending appeal. All Writs Act, 28 U.S.C. § 1651; 11 Wright 6 Miller pp. 331-32.

The propriety of a stay order, however, depends on rules of procedure and judicially established standards. Of primary consideration are Rules 62(a), (c), (d) and (g) of the Federal Rules of Civil Procedure, Rules 7 and 8(a) and (b) of the Federal Rules of Appellate Procedure and Rule 805 of the Federal Rules of Bankruptcy Procedure.

The various rules and standards taken together, establish three types of stays, one that issues as a matter of right, another that is discretionary and a third that combines features of the first two.

The matter-of-right stay is confined largely to money judgments and is often known as the supersedeas stay because of reference to the supersedeas bond in FRCP 62(d). Supersedeas, the bond that super-cedes the right of enforcement, has no universal meaning. In the federal system, a “true supersedeas operates only as to a money judgment from which a writ of execution can issue.” Hovey v. McDonald, 109 U.S. 150, 3 S.Ct. 136, 27 L.Ed. 888 (1883). But the term is sometimes used with reference to stays of non-money judgments on appeal. See, e. g., City of Shelbyville v. Glover, 184 F. 234, 240 (6th Cir. 1910). In California, supersedeas has had the opposite meaning, namely discretionary stays of non-money judgments. See generally, 6 Witkin California Procedure 2d Ed. For purposes of this memorandum, supersedeas refers to the matter-of-right stay provided by FRCP 62(d).

In addition to the Rule 62(d) supersedeas stay, a matter-of-right stay of enforcement of a money judgment is granted automatically by FRCP 62(a). This rule stays execution of judgment for 10 days from entry of judgment.

All other stays, including any stay of enforcement of a money judgment that departs from Rule 62(d), are discretionary. FRCP 62(c), (g); FRAP 8(a), (b); FRBP 805. See generally, 11 Wright & Miller pp. 306-34, 16 Wright & Miller, Cooper & Gressman pp. 380-3.

The present appeal is not from a money judgment as such but from a judgment of the bankruptcy court holding that a state court money judgment is unaffected by debtor’s discharge in bankruptcy and therefore is not stayed by the provisions of 11 U.S.C. § 362 or 11 U.S.C. § 524. Thus, while true supersedeas is not before us because the writ of execution appellee relies upon issued from the state court and not from the bankruptcy court, “the doctrines which apply to a supersedeas can . be brought in by way of analogy.” Hovey v. McDonald, supra, 160, 3 S.Ct. 142.

III.

Supersedeas Stays

The matter-of-right stay of money judgments was at one time provided by statute, more recently by rule. See discussion in In re Federal Facilities Realty Trust, 227 F.2d 651 (7th Cir. 1955) at p. 654. It has been said:

“A supersedeas, like an appeal, is a matter of right, and its allowance does not rest in the sound discretion of court or judge . . . The cases in which the writ or the appeal . . . is a superse-deas are determined by acts of Congress, and not by the opinion or discretion of the judge or justice. His only function is to determine whether or not the security offered is good and sufficient. If it is, it is his duty to take it, and upon his acceptance of it the execution of the judgment or decree is stayed . . . [T]he law itself works the supersedeas.”

McCourt v. Singers-Bigger, 150 F. 102, 104-5 (8th Cir. 1906). Thus, upon filing a bond that is approved by the trial court, enforcement of a money judgment is automatically stayed without further order. FRCP 62(d); 11 Wright & Miller p. 326.

The non-discretionary supersedeas turns largely on approval of the amount of the bond by the trial court. Although no present rule of Federal Procedure provides standards for fixing the amount, “former Rule 73(d) described what always has been good practice on a supersedeas bond, and, except as the matter now is regulated by local rules in a particular district, it is still a useful guide in these matters.” 11 Wright & Miller p. 327. (There is no local rule governing the amount of a supersedeas bond in the Central District of California, either in the District or Bankruptcy Court. There is such a local rule in the Southern District of New York. As described in Trans World Airlines Inc. v. Hughes, 314 F.Supp. 94 (S.D.N.Y. 1970), aff’d 515 F.2d 173 (2d Cir. 1975), the rule requires that the supersedeas bond be 111% of the judgment plus $250 to cover costs on appeal). Thus former FRCP Rule 73(d), which did not survive adoption of the Federal Rules of Appellate Procedure, established a standard that exists today. “Rule 8(b) of the Federal Rules of Appellate Procedure has superseded, but not annulled that former Rule, and the law thereunder. Hence the law as above stated has lost none of its validity or vitality.” Tully v. Kerguen, 304 F.Supp. 1225, 1227 (D. V.I. 1969). Accord: Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979).

Former Rule 73(d) described the form of the supersedeas bond and its amount. In form, the “bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award.”

“[T]he amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause fixes a different amount or orders security other than the bond.”

The standard for supersedeas bonds under Rule 62(d) thus incorporates former Rule 73(d) and may be summarized:

1. The non-discretionary, matter-of-right stay requires a bond in sufficient amount to cover the unsatisfied judgment, costs on appeal, interest and damages for delay. Former Rule 73(d).

2. For cause, established after notice and a hearing, the court has discretion to:

a. Fix a different amount, or

b. Order security other than the bond.

Poplar Grove, Etc. v. Bache Halsey Stuart, Inc., supra; Trans World Airlines Inc. v. Hughes, supra; C. Albert Sauter Co., Inc. v. Richard Sauter Co., Inc., 368 F.Supp. 501 (E.D.Pa.1973).

(The discretionary supersedeas bond is examined below).

An appellant from a money judgment may, as a matter of right, obtain a stay of execution by posting a supersedeas bond in an approved amount at any time, whether before or after the time of filing the notice of appeal. FRCP 62(d).

The foregoing contemplates the trial court as the forum because FRCP 62(d) is addressed to the district court, not to the appellate court. Undoubtedly the appellate court has power to accept and approve a Rule 62(d) supersedeas bond but the cases do not reflect such a practice. Thus the only time an appellate court becomes involved in true supersedeas cases is when the trial court has committed error; this might take the form of refusing to accept a super-sedeas bond, refusing to approve it or permitting execution even though an approved bond has been filed. McCourt v. Singers-Bigger, supra.

IV.

Discretionary Stays

Procedurely, discretionary stays of judgments and orders pending appeal are governed by FRCP Rule 62(c) and (g); FRAP 8(a) and (b), and FRBP 805. As stated by one authority, FRCP 62(c) and (g), taken together, reflect “the inherent power of the courts to make whatever order is necessary to preserve the status quo and to ensure the effectiveness of the final judgment.” 11 Wright & Miller p. 315. The discretion of the court is exercised “upon such terms as to bond or otherwise as [the court] considers proper for the security of the rights of the adverse party.” FRCP 62(c). While the power to maintain the status quo pending appeal “should always be exercised when any irremediable injury may result from the effect of the decree as rendered” (Hovey v. McDonald, supra, 109 U.S. 161, 3 S.Ct. 143), both federal and California Courts hold that “. . this power should be sparingly employed and reserved for the exceptional situation.” People v. Emeryville, 69 Cal.2d 533, 72 Cal.Rptr. 790, 793, 446 P.2d 790, 793 (1961).

The accepted standards for discretionary stays are described in Schwartz v. Covington, 341 F.2d 537 (9th Cir. 1965):

1. Appellant is likely to succeed on the merits of the appeal.

2. Appellant will suffer irreparable injury-

3. No substantial harm will come to ap-pellee.

4. The stay will do no harm to the public interest.

A stay pending appeal should comply with the requirement of FRCP 65(d) that every order granting an injunction set forth the reasons for its issuance and be specific in its terms. 11 Wright & Miller p. 324; U. S. v. El-O-Pathic Pharmacy, 192 F.2d 62, 80 (9th Cir. 1951); Poplar Grove, Etc. v. Bache Halsey Stuart, Inc., supra 1190.

V.

Modified Supersedeas

Somewhat different standards are applied when discretionary stays of money judgments depart from the non-discretionary supersedeas stay of FRCP 62(d). The starting point is the requirement of former Rule 73(d) that good cause be shown. If the appellee is fully protected, good cause does not require a showing of probable success or of irreparable injury.

In Poplar Grove, Etc., supra, the court of appeals said that proof that appellant’s “financial condition is so impaired that it would have difficulty in securing a superse-deas bond” could suffice as good cause. “[I]f the judgment debtor’s present financial condition is such that the posting of a full bond would impose an undue financial burden, the court ... is free to exercise a discretion to fashion some other arrangement for substitute security through an appropriate restraint on the judgment debtor’s financial dealings, which would furnish equal protection to the judgment creditor.” Emphasis supplied. Poplar Grove, Etc., supra, 1191. See also Trans World Airlines, Inc. v. Hughes, supra; C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., Inc., supra.

In departing from both the normal super-sedeas bond and the normal discretionary stay rules (high probability of success on appeal and irreparable injury), the burden is on the appellant. “If a court chooses to depart from the usual requirement of a full security bond to suspend the operation of an unconditional money judgment, it should place the burden on the moving party to objectively demonstrate the reasons for such departure. It is not the burden of the judgment creditor to initiate contrary proof. Such a supersedeas bond is a privilege extended the judgment debtor as a price of interdicting the validity of an order to pay money.” Poplar Grove, Etc., supra, 1191.

The foregoing standards for discretionary stays on appeal are equally applicable whether the discretion is exercised by the trial court or the appellate court. In practice, the appellate court rarely exercises this discretion.

VI.

Trial, Appellate Roles

While the power to stay enforcement of a judgment resides in the appellate courts as well as the trial courts, it is usually exercised by the trial court. “Application for a stay of the judgment or order of the [trial] court pending appeal, or for approval of a supersedeas bond . . must ordinarily be made in the first instance in the [trial] court.” FRAP 8, FRBP 805.

Witkin calls this an exhaustion of remedy rule. 6 Witkin Cal.Proc. 2d Ed. 4186. It is also a rule of practicality and propriety. Accordingly, appellate courts are reluctant to entertain a request for stay unless it is demonstrated that the trial judge is unavailable or that the request was denied by the trial judge. Nevertheless, only in the former situation does the appellate tribunal normally exercise its own discretion; in other instances (such as where the trial court has denied the stay) the appellate court simply determines whether the trial court abused its discretion.

In American Strawboard Co. v. Indianapolis Water Co., 81 F. 423 (7th Cir. 1894), this rule was attributed to the Supreme Court: “It is thus apparent that the Supreme Court, while asserting its power, deemed it advisable to rest the discretion to suspend the operation of the writ of injunction pending appeal from final decree with the trial judge, and established the rule that in general the appellate court would not, pending appeal and in advance of a decision by the court upon the merits, interfere with the discretion lodged with the trial judge. This conclusion is bottomed on manifest grounds of propriety.” Emphasis supplied.

Another reason for requiring applicants to seek stays from the trial court is that appellate courts are not as well equipped to enforce injunctive orders. 11 Wright & Miller p. 325.

Where the trial court refused to stay enforcement pending appeal, the Seventh Circuit said: “[W]e cannot say that the court abused its discretion.” Hormann v. Northern Trust Co., 114 F.2d 118 (7th Cir. 1940). Likewise, when a stay was granted, the First Circuit ruled that no abuse of discretion appeared. United States v. Platt Contracting Co., 324 F.2d 95 (1st Cir. 1963).

The trial court’s discretion is so great that it is sometimes said that the appellate court should not grant a stay of enforcement pending appeal after it has been denied by the trial court. Sommer v. Rotary Lift Co., 58 F.2d 765 (9th Cir. 1932). “I think it bad practice to renew before me the motion to stay the accounting heretofore disposed of by the [trial judge], and his conclusion will not be reconsidered.” Chadeloid Chemical Co. v. H. B. Chalmers Co., 242 F. 71 (2d Cir. 1917).

As to California practice, Witkin states: “If the appellant does invoke the trial court’s discretion and is denied relief, super-sedeas will ordinarily be refused, despite the exhaustion of remedy, because the discretion of the trial court will be upheld in the absence of a clear showing of abuse.” Emphasis supplied. 6 Witkin Cal.Proc. 2d Ed. 4186.

Any other rule would distort the delicate balance between trial and appellate levels and deny recognition of their respective roles, all to the detriment of the judicial system and of those it serves. Litigants are entitled to their day in court, and they are entitled to have the trial court’s action reviewed but they are not entitled to a second trial or hearing, whether from another trial judge or from an appellate judge. This has not always been true of bankruptcy court litigation; trials de novo by district judges sitting as appellate judges were not completely eliminated until recent years. A most salutory feature of the Federal Rules of Bankruptcy Procedure was its requirement that the reviewing court accept the bankruptcy judge’s findings unless they are clearly erroneous. FRBP 810. It is just as important to the properly functioning bankruptcy court that the trial judge’s rulings on stays pending appeal be disturbed only in the event of error or abuse of discretion.

VII.

Conclusion

It is evident that appellant has failed to carry his burden of demonstrating that the trial judge abused his discretion or, indeed, that he denied relief.

Aside from the order staying the February 26 marshal’s sale no request was made by appellant to Judge Hyer that was not granted. Appellant sought and agreed to a $12,500 supersedeas bond. Judge Hyer granted that order and has never been requested to modify it.

Appellant’s relief, if any, must come from the trial judge. The stay pending appeal is vacated, effective 10 days from entry of this order.