When the other side appeals your favorable trial court judgment, it is often in your interest to seek a bond pending appeal. It makes recovery easier post judgment, can allow quicker enforcement, and may even deter an appeal in some close cases. So how do you obtain a bond pending appeal in Georgia?
The easiest way to get a bond motion filed is to go ahead and retain appellate counsel for your appeal now. No point waiting until the appeal is docketed; a good appellate lawyer can take work off your plate and solve procedural hurdles as soon as your judgment issues. Call Kastorf Law for advice.
Can you enforce a judgment pending appeal in Georgia?
Let’s start with basics. When can you enforce a judgment in Georgia? By default, an automatic stay of the judgment is in place until ten days after its entry. O.C.G.A. § 9-11-62. After that, you can start enforcement. But the filing of a notice of appeal serves as supersedeas to enforcement of a civil judgment so long as the appellant has paid all costs into the court. There is a twenty day gap between when the automatic stay expires and the notice of appeal is typically due, so you may be able to initiate enforcement during that period if your opponent does not file their notice early. But the most likely consequence of doing so is that the other side will simply accelerate their timetable on getting the notice of appeal on the record.
What are your options once the notice of appeal is filed?
Once the notice of appeal acts as a supersedeas, the appellee may file a motion to require the appellant to post a bond under O.C.G.A. § 5-6-46. The issueance of a bond in some amount appears to be mandatory. Under O.C.G.A. § 5-6-46(a), a notice of appeal “shall serve as supersedeas upon payment of all costs in the trial court by the appellant.” However, “upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interests, and damages for delay if the appeal is found to be frivolous.” Id. (emphasis added).
Thus, under the plain terms of § 5-6-46(a), once the appellee moves for a bond, a bond must issue. (But note that, in theory, “in such amount as the court may require” permits requiring a bond in the amount of $0. This is the fiction that Federal courts have used to impose no bond pending appeal in some Federal actions. See generally Habitat Education Center v. United States Forest Service, No. 09-2785 (7th Cir. 2010).)
What is the appropriate amount of the bond?
Section 5-6-46 also provides guidance on the minimum amount of an appropriate bond. First, “[w]hen the judgment is for the recovery of money not otherwise secured, the amount of the bond or other form of security shall be fixed as 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 shown fixes a lesser amount.” Second, [w]hen the judgment determines the disposition of the property in controversy as in real actions . . . the amount of the superseadeas bond or other form of security shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.” Id.
When must a motion for supersedeas bond be filed in Georgia?
Section 5-6-46 of the Georgia Code does not contain a set time period in which a motion for supersedeas bond should be filed. It is strongly in your interest to file as soon as possible, however, for several reasons: First, it will allow enforcement faster if it expedites a ruling. Second, the motion is, by default, governed by the standard response time for motions, which is not particularly quick in Georgia, so you want to get the other side on the clock as soon as possible. Third, persuading the trial court to issue the bond before the appeal is docketed short circuits a possible (but likely losing) argument about whether the trial court retains jurisdiction to require the bond. See Park v. Minton, 229 Ga. 765, 769-70, 194 S.E.2d 465, 468 (1972). But see Hughes v. Star Bonding Co., 137 Ga. App. 661, 662-63, 224 S.E.2d 863, 863-66 (1976).
What is the remedy for failure to post a superseadeas bond?
Suppose the appellant simply does not post the bond. The good news, then, is that you’ll be at liberty to enforce the judgment by all legal means, including levy, execution, and garnishment. See Crymes v. Crymes, 240 Ga. 721, 721, 242 S.E.2d 30, 31 (1978). The bad news is that failure to post doesn’t get you dismissal of the appeal, which would be the simplest and most immediate remedy. See Crymes v. Crymes, 240 Ga. 721, 721, 242 S.E.2d 30, 31 (1978). And, in fact, enforcing the judgment can be at your client’s peril if the appeal is later reversed. Hawn v. Chastain, 246 Ga. 723, 726-27, 273 S.E.2d 135, 138-39 (1980). The result is that once the bond issues and there’s a failure to comply, you’ll still be left with a difficult decision about how to proceed.
Despite that potential downside, given the simplicity of filing a bond motion and the effect it may have on the other side’s desire to appeal and their settlement position, it is often a good idea to make the request, even if how and when you’ll enforce the judgment is still in the air.
Still have questions?
Drafting a motion for a bond pending appeal isn’t particularly hard, but it is one of many things you’ll need to quickly educate yourself about when an appeal is filed. The most efficient solution is to hire appellate counsel to handle the matter from entry of judgment forward. Kastorf Law can help.