*2 HUGHES, KATZ, Before GEORGE and unsuccess- the state court Debtor moved Bankruptcy Judges. 9, 1979, to claim fully on November writ. quash exempt vehicles
HUGHES, Bankruptcy Judge. bankruptcy, effec- days later he filed Four early sale. tively staying the execution has obtained two orders December, appellee commenced panel, specifically staying the first creditor dischargeability following execution sale scheduled for the action to determine Trial concluded day staying judgment. and the second en- the state court generally 16, 1980, judgment rules January hold- various and standards taken on together, stays, three ing nondischarge- types state establish one right, matter another by Judge Hyer was entered William H. issues as a able January discretionary This a third that com- panel. appealed pending before this features of the first two. bines *3 22, January or about debtor filed a On matter-of-right stay The is confined stay pending ap- judgment motion for of largely judgments and is often money appeal. peal, as well as notice of On supersedeas stay because of known as the 31, 1980, judge accepted January the trial supersedeas bond in FRCP reference to the stipulation parties and fixed 62(d). Supersedeas, the bond $12,500. bond at supersedeas amount of enforcement, no right cedes of uni- system, a meaning. versal In the federal However, posted. The bond was on not operates only as a supersedeas “true 25, 1980, February appellant brought an writ of exe- money judgment from which a he emergency panel motion to this which McDonald, 109 Hovey cution can issue.” v. Bankruptcy “that prayed Appellate 150, 136, 888 U.S. 3 S.Ct. 27 L.Ed. halting a stay Panel issue order the sale But used refer- the term sometimes Marshal, scheduled Bernardino San judgments on stays non-money ence of California, County, 10:00 a. m. Feb- on See, g., City Shelbyville v. 26, e. of ruary presenting 1980.” In the motion 234, Glover, (6th F. 240 In panel, alleged 184 to this debtor California, opposite supersedeas has had “grounds emergency were motion of namely discretionary stays non- Naugle meaning, Honorable David presented 6 money generally, Witkin Judge Hyer Friday, judgments. absence See in the of on 22, purposes 1980, Procedure 2d Ed. For February which California at time memorandum, refers to supersedeas of this Naugle denied the motion.” matter-of-right stay by FRCP provided granted sale We relief and Marshal’s 62(d). cancelled. the afternoon of Febru- On arguments ary panel heard of coun- 62(d) supersedeas In to the Rule addition grant- call telephone sel conference and matter-of-right enforcement stay, stay of a stay ap- a pending appeal ed condition judgment granted automati- money of post supersedeas bond. pellant 62(a). stays cally $3500 This rule execu- by FRCP order, February 28 That dated and filed entry 10 from of judgment days tion of subject March is the of this memoran- judgment. dum. stays, including any All of other money judgment that de- enforcement of a II. 62(d), discretionary. parts are
Stays Pending Appeal (b); 62(c), 8(a), FRBP (g); FRCP FRAP 11 Miller generally, Wright pp. 805. & See (whether trial appel- Federal courts or 306-34, Miller, Cooper Wright & & 16 late) statutory or inherent pp. Gressman 380-3. judgments pending appeal. and orders 1651; Act, Wright Writs 11 All 28 U.S.C. § money is not from present pp. 6 Miller 331-32. judgment judgment such but from a of order, however, a state bankruptcy holding propriety of a depends judicially money on rules is unaffected procedure discharge bankruptcy and there- primary established Of consid- debtor’s standards. (d) of 11 62(a), (c), (g) stayed provisions fore eration Rules Thus, Procedure, 11 Rules U.S.C. 362 or 524. § Federal Rules of Civil U.S.C. § while before us be- 8(a) (b) supersedeas the Federal Rules of true is not 7 appellee relies Appellate and Rule cause the writ of execution Procedure 805 court and not Federal Rules Procedure. issued from state
805
court,
bankruptcy
F.Supp.
(S.D.N.Y. 1970),
from the
“the doctrines
94
aff’d 515 F.2d
(2d
1975),
requires
the rule
apply
supersedeas
which
to a
can
that the
brought
bond be 111% of the
by way
analogy.” Hovey
McDonald,
plus
appeal).
to cover costs on
Thus
supra,
$250
v.
former FRCP Rules of adoption survive of the Federal III. Procedure, Appellate established a standard Supersedeas Stays 8(b) today. that exists “Rule of the Federal Appellate supersed Rules of Procedure has judg- The matter-of-right stay money ed, Rule, statute, but not annulled that former ments was at time provided by one law as the law thereunder. Hence the recently by more rule. See discussion in validity above stated has lost none of its Trust, re Federal Facilities Realty 227 F.2d vitality.” Tully Kerguen, F.Supp. 1955) p. It has been *4 1225, (D. 1969). Poplar 1227 Accord: V.I. said: Co., Planting Refining Grove and Inc. v. supersedeas, “A like appeal, is a mat- Stuart, Inc., 1189, Halsey Bache 600 F.2d right, ter of and its allowance does not 1979). (5th 1191 rest in the sound discretion of court or judge . . . The cases in which the 73(d) the form of Former Rule described appeal superse- writ or the . . . is a supersedeas the bond and its amount. Congress, deas are determined acts of form, be conditioned for the the “bond shall opinion and not the or discretion of judgment togeth- satisfaction of the in full justice. the or is only costs, His function damages de- er with interest and for to determine whether or not security if is lay, any reason the dismissed is, good offered is and sufficient. If it affirmed, judgment or if is and to satis- it, is duty accept- to take his fy judgment in full such modification of the ance of it the costs, interest, execution of the damages and such as stayed or decree is . . law may adjudge and award.” appellate court [T]he supersedeas.” itself works the amount of the bond shall be fixed “[T]he 102, v. Singers-Bigger, McCourt 150 F. at such sum as will cover the whole amount (8th Thus, 104-5 a upon filing unsatisfied, remaining the judgment court, approved by bond that is interest, trial appeal, damages costs on money judgment enforcement of a is auto unless the court after notice and delay, matically stayed without further order. hearing good cause fixes a different and for 62(d); Wright p. FRCP 11 & Miller 326. security amount or orders other than bond.” The turns non-discretionary supersedeas
largely approval amount supersedeas The bonds un- standard for Although bond court. no 62(d) incorporates thus former der Rule present provides rule of Federal Procedure 73(d) may Rule be summarized: amount, fixing standards for “former matter-of- non-discretionary, 1. The 73(d) always described what has been right stay requires in sufficient a bond bond, and, good practice supersedeas on a judgment, amount to cover the unsatisfied except regulated by as the matter now damages for appeal, costs on interest and district, particular local rules in a it is still a 73(d). delay. Former Rule guide Wright useful matters.” 11 these cause, notice 2. For established after (There p. & Miller 327. is no local rule to: hearing, and a the court has discretion governing supersedeas the amount of a amount, a. Fix a different California, bond in the Central District than the bond. security b. Order other either in the District or Court. Grove, Halsey Poplar There is such a local rule in the Etc. v. Bache Southern Stuart, Inc., supra; District Trans World Airlines of New York. As described Co., Hughes, Hughes, supra; Trans World Airlines Inc. v. 314 v. C. Albert Sauter Inc. 806 Co.,Inc., F.Supp. People v. exceptional
Inc. Richard Sauter 368 for the situation.” v. 533, 790, Cal.Rptr. 72 (E.D.Pa.1973). Emeryville, 501 69 Cal.2d P.2d 793 (The supersedeas bond is discretionary below). accepted discretionary standards for The examined Coving stays described Schwartz appellant money An a 1965): ton, F.2d right, a may, a matter of obtain as likely Appellant is to succeed on by posting supersedeas bond in 1. execution time, appeal. whether merits approved amount filing or after the time notice before inju- irreparable 2. will suffer 62(d). FRCP ry- contemplates the trial foregoing ap- will come to 3. No substantial harm 62(d) court FRCP forum because pellee. court, addressed to the district not to the public will do no harm the appellate appellate Undoubtedly court. interest. accept approve has comply stay pending appeal should A supersedeas 62(d) bond but the cases 65(d) that requirement of FRCP practice. do not reflect such Thus granting injunction set forth every order only time an court becomes in- specific reasons its issuance and be true volved in cases when 324; p. U. Wright Miller its terms. 11 & error; might committed *5 Pharmacy, 192 F.2d S. v. El-O-Pathic refusing accept super- take form of the Grove, Etc. Bache (9th 1951); Poplar v. bond, it refusing approve per- sedeas Inc., Stuart, supra Halsey 1190. though approved mitting execution even Singers- bond been McCourt v. filed. V. Bigger, supra. Supersedeas Modified
IV.
ap-
are
different standards
Somewhat
stays
money
Discretionary
plied
discretionary
when
of
Stays
judgments depart from the non-discretion-
of
Procedurely,
stays
judg-
discretionary
stay
62(d). The
ary supersedeas
of FRCP
gov-
are
pending appeal
ments and orders
starting point
requirement
the
of former
is
62(c)
(g);
erned
FRCP
and
FRAP
If
73(d)
good
that
cause
shown.
8(a)
(b),
FRBP 805. As stated
good
appellee
fully protected,
cause
the
62(c)
authority,
(g), taken
one
FRCP
require
probable suc-
showing
of
does
together,
power
reflect
inherent
“the
irreparable injury.
or of
cess
necessary
make
order is
courts to
whatever
Grove, Etc.,
court of
preserve
quo
Poplar
supra,
the
In
the
the status
and to ensure
proof
appellant’s
said
“fi-
judgment.”
appeals
of
final
that
that
effectiveness
the
Wright
impaired
of
p.
& Miller
315. The discretion
nancial condition
so
securing superse-
“upon
difficulty
terms as
the court is exercised
such
would
good cause.
deas bond” could suffice as
to bond or otherwise as
considers
[the court]
present finan-
proper
security
rights
judgment
the
debtor’s
for the
“[I]f
posting of a
62(c).
is such that the
party.” FRCP
While the
cial condition
adverse
pending
impose
undue financial
power
quo
to maintain the status
full bond would
burden,
exer-
...
is free to
appeal
always be exercised when
court
“should
ar-
to fashion some other
injury may result from cise a discretion
irremediable
security through
(Ho
rangement
substitute
the effect of the decree as rendered”
judgment
McDonald,
appropriate
3 an
restraint on
vey
supra,
v.
109 U.S.
dealings, which would
143),
federal and California debtor’s financial
S.Ct.
both
equal protection
judgment
to the
hold
“.
this
furnish
Courts
Poplar
employed
Emphasis
supplied.
sparingly
should be
reserved creditor.”
Grove, Etc., supra, 1191. See also Trans
court has denied
stay)
appellate
Airlines,
World
Hughes, supra;
simply
Inc. v.
C. court
determines whether the trial
Co.,
Albert
court abused its discretion.
Sauter
Inc. v. Richard S. Sauter
Co., Inc., supra.
In American
Indianap
Strawboard Co. v.
Co.,
(7th
1894),
olis Water
In
normal
from both the
rule
Supreme
was attributed to the
Court:
discretionary
sedeas bond and the normal
“It
Supreme
thus
(high probability
apparent
rules
of success on
Court,
asserting
power,
while
its
deemed it
appeal
irreparable injury),
the burden
suspend
advisable to rest the discretion to
is on the appellant. “If a court chooses to
operation
injunction
writ
depart
requirement
from the usual
of a full
pending appeal from final decree with the
security
suspend
operation
bond to
judge,
trial
and established the rule that in
money judgment,
unconditional
it should
general
not,
appellate
court would
place the
moving party
burden on the
pending appeal and in advance of a decision
objectively demonstrate the reasons for
merits,
the court
interfere with
departure.
such
It is not the burden of the
lodged
the discretion
with the
creditor
to initiate contrary
This conclusion is bottomed on manifest
proof.
Such a
privi-
bond is a
grounds
Emphasis
of propriety.”
supplied.
lege
extended the
debtor as a
Another
price
interdicting
requiring applicants
reason for
validity
of an order
stays
to seek
pay
Grove, Etc.,
is that
money.” Poplar
supra,
appellate
equipped
courts are not as well
1191.
injunctive
Wright
enforce
orders. 11
&
The foregoing standards for discretionary
p.
Miller
stays
equally applicable
Where
the trial court refused to
whether the discretion is
exercised
pending appeal, the
enforcement
Seventh
trial court
appellate
prac-
or the
court.
Circuit said:
say
cannot
“[W]e
tice,
rarely
exercises this
court abused its
discretion.” Hormann
discretion.
Co.,
Northern Trust
Any
February
distort the delicate
Panel was
other rule would
On
troubling
extremely
levels
dilemma.
trial and
faced with an
balance between
advan-
respective
failed to take
recognition
appellant,
of their
An
who had
deny
setting
roles,
judicial
the trial court
tage
to
detriment of
of the order of
all
Litigants
are
of those
serves.
his
bond amount
system
—an
court,
originally
had
they
are
counsel
day
to their
amount to which his
entitled
execu-
stipulated
seeking
action re-
entitled to have the trial court’s
—was
following
entitled to second
was to be held
they
viewed but
are not
tion sale which
princi-
trial
hearing,
day
whether from another
a result of his inaction.
trial
as
having
judge
appellate judge.
given by
This
him for not
pal
or from an
reason
he
always
bankruptcy
posted
not
been true of
the bond was that
had
initially
himself,
litigation;
judges
trials de novo
district
not
able to raise
sum
been
willing
sitting
appellate judges
bonding company
were
com-
was
as
that no
pur-
years.
surety.
Appellant’s
A
pletely eliminated until recent
as his
stand
Rules
the Panel for relief
salutory
pose
coming
of the Federal
before
most
feature
First,
per-
require-
its
he felt that
Procedure was
was three-fold.
such a
reviewing
accept
sold
property
ment that the
sonal
it war-
findings
they
unique quality
and character
bankruptcy judge’s
unless
preservation
It is
in his name
clearly
just
FRBP 810.
title
erroneous.
ranted
functioning bank-
important
properly
pending
to the
the outcome
rulings Second,
ruptcy
judge’s
trial
had
court that the
counsel
only
actions
stays pending appeal
recently
be disturbed
aware of certain
become
being
by the District
in the event of error or abuse of discretion. which were
taken
County, Califor-
Angeles
Los
Attorney of
nia,
VII.
conclusions
which seemed to contradict
court and evidence
reached
the trial
Conclusion
Plaintiff at
given by key
witness for the
appellant
It
evident that
has failed
coun-
assurance to
gave
trial. This
further
demonstrating
carry
burden of
success in his
potential
sel as to the
indeed,
or,
judge
abused his discretion
appeal. Finally,
effort
to contact the
that he
relief.
denied
ineffective, as had
proven
staying the Febru-
Aside from the order
relief from
attempt
emergency
to obtain
request
ary 26 marshal’s sale no
was made
sitting in that
bankruptcy judge
the other
appellant
Hyer that was not
Hence,
felt
area of the district.
counsel
agreed
granted. Appellant sought and
*7
go
the trial
that his
to
first to
duty
$12,500 supersedeas
Judge Hyer
bond.
see, Federal
stay,
for a modification of
re-
granted that
has never been
order and
805,
mitigated
been
Bankruptcy Rule
quested modify
it.
unavailability.
by
judge’s
relief,
Appellant’s
any,
if
must come from
given
portrayal
In examining the factual
stay pending appeal
the trial
felt
parties, it was
us
counsel for both
vacated,
days
entry
10
effective
the trial
that a modification of
the Panel
this order.
necessary
supersedeas order was
judge’s
some
give
appeal
in order to
this
proper
GEORGE,
concurring.
Bankruptcy Judge,
possible
its
im
meaning
sort of
aside from
litigants, or its use
fuel
Although
pact upon
I
of our
future
also favor
vacation
among bankruptcy
3,1980,1
bring
debates
myself
of March
cannot
esoteric
Oberoesterr
generally
See
Land
join
reasoning
in the
of the instant order.
scholars.
292,
1937);
(2d
unwarranted,
Gude,
293
adopts
un-
eich v.
93 F.2d
I feel that
an
1004,
Bros., Inc., 51 F.2d
Sawyer
procedural
inflexible
Williams
just,
dangerously
(2d
1931).
line,
felt,
Quite
See,
I
possibility.
ble
g.,
e.
Federal Bank
quantitative bonding
with the
805;
determina-
ruptcy Rule
8(a);
F.R.A.P. Rule
Cum
tion made by Bankruptcy Judge William H.
Telephone
berland
Telegraph
&
Co. v. Loui
Hyer, we decided to allow the United States
Commission,
siana Public Service
260 U.S.
Marshal’s
subject person-
Office to hold the
212,
43 S.Ct.
ly Appellant both COLEMAN, Virginia In re Teresa Marshal’s impending from the ate relief Debtor. any fur- ongoing protection sale and from during period of this ther sale COLEMAN, Appellant, Virginia Teresa case, how I can see appropriate In an might wisdom dictate BROWN, Trustee, Appellee. William permit panel only temporary stay issue C-80-0113-L(B). No. renew their contact with the counsel to Court, long-term United States District court in order to obtain more Kentucky, W. D. Still, we lawfully, as having relief. acted Louisville Division. I think present proceeding, did large too an issue the Panel has made much May actions. propriety long-past of its out And, adopted I now policy fear that the effectively has emasculated Panel injunctive powers given
already limited
appellate panels Federal under would not
Rule 805. If the facts before us taken, then there would
allow the action few, very any, if
appear to be instances utilizing about good
which we could feel stay a
authority recognized by this rule to or order which an is a
us been taken. All remains distraught
troubling spectre appellants, judges,
unable or to convince to locate trial
appellate judges procedural property
rights greater importance judi- than are of Certainly,
cial more noble causes etiquette. gar- rending of our
than this exist humility.
ments in
Nevertheless, apparent to the unwill- due
ingness to take action burden improperly
to alleviate situated costs paying significant the rather sign I
storing personal property, would mat-
more limited order of vacation in this
ter.