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Supersedeas Motion Practice: It's Not Super Difficult

KCBA Bar Bulletin
May 7, 2015

Overview

"You shall desist" is the meaning of the Latin term "supersedeas." In a legal context, this commands a judgment creditor to desist from enforcing a judgment. Through supersedeas, a judgment debtor can stay enforcement of a trial court decision.

Don't let this motion practice seem intimidating. The supersedeas rules and procedures in Washington courts are fairly straightforward.

The starting point for supersedeas relief is to realize that in Washington final civil judgments are immediately enforceable even if appealed. "Any person may take action premised on the validity of a trial court judgment or decision until enforcement of the judgment or decision is stayed as provided in rules 8.1 or 8.3."1 "[A] trial court judgment is presumed valid and, unless superseded, the judgment creditor has specific authority to execute on that judgment."2

The judgment debtor who wants to preserve its assets, avoid execution efforts and maintain the status quo while appealing must utilize available assets to stay the judgment.

Basic Overview

To the stay the judgment requires security. The purpose behind supersedeas security is twofold: "[I]t serves the interest of the judgment debtor by delaying the execution of the judgment, and it serves the interest of the judgment creditor by ensuring that the judgment debtor's ability to satisfy the judgment will not be impaired during the appeal process."3

If a judgment debtor seeks supersedeas relief, the judgment creditor can take comfort that at the conclusion of the appeal, if the judgment creditor prevails, satisfaction of the judgment should be relatively easy. A supersedeas filing should "guarantee that the debtor's ability to satisfy the judgment cannot be altered pending outcome of the appeal."4

Title 8 of the RAP sets out the procedure for supersedeas motion practice, the standards for different types of stays and the means for a judgment creditor to object and challenge supersedeas as a result of a cash or bond filing.

Supersedeas procedure begins in the trial court, where a judgment debtor can post security of cash or a bond and immediately obtain a stay of a money judgment or a decision "affecting real, personal or intellectual property."5 The immediacy of this relief is important because the automatic stay on the judgment expires quickly.6

Rather than require that the judgment debtor first make a motion to the trial court for pre-approval of the cash or bond filing, for which time can be short, Title 8 allows the judgment debtor to make the filing and obtain the stay automatically upon the filing.7 A challenge to the sufficiency of the amount or form of the security can follow by motion of a dissatisfied judgment creditor.8

The trial court has discretion to resolve the judgment creditor's challenge. Any party can seek review by an appellate court of the trial court's supersedeas decision.9 This is the basic overview of how supersedeas works with money judgments and decisions affecting property, the stay of which is "of right."

"Other" Judgments

With other types of judgments, for example equitable relief, a stay is discretionary in the first instance so a judgment debtor must make a motion.10 That motion can be made to the trial court or to the appellate court, which can entertain it even before review has been accepted.11

An attorney representing a judgment debtor, or soon-to-be judgment debtor, ideally will ask the trial court to stay enforcement of other civil judgments at the time of entry. This will avoid urgency. If the trial court elects not to stay the judgment, relief can be sought from the appellate court.

An attorney should consider an emergency motion under RAP 17.4(b) before the Court of Appeals if time is short. For this type of stay relief, the court considers whether debatable issues are presented by the appeal, with the burden on the party seeking the stay, and compares any injury to the judgment debtor without a stay to any injury to the judgment creditor if a stay were imposed.12

The judgment creditor opposing a stay, therefore, will want to address any lack of merit of the appeal and also, where possible, assert and demonstrate an injury if a stay is imposed. This contrasts with a stay of money judgments and decisions affecting property where the merits of the appeal are not at issue, the judgment creditor is entitled to the stay and the trial court's discretion is limited to the amount and form of the security.

Some parties, such as the State, are not required to post security and can obtain a stay simply by filing a notice.13

If your client intends to post a bond, review RAP 8.4 regarding surety qualifications and be sure that the bonding company is a resident or is authorized to conduct a surety business in this state.

Judicial Discretion

The trial court has much discretion to decide if the amount and form of the supersedeas posting are adequate when challenged by the judgment creditor, and to decide the judgment debtor's motion to approve "alternate security." Money judgments ordinarily must be secured by the amount of the judgment, interest likely to accrue during the pendency of the appeal and attorney fees, costs and expenses "likely to be awarded on appeal."14

To determine an appropriate amount of post-judgment interest, the parties should address the expected length of the appeal, usually through affidavits of the attorneys or an expert setting forth an average appeal time. If the respondent has a right to attorney fees for successful defense of the appeal, the parties often disagree about a reasonable amount to set aside for fees. In that case, the size of the record usually is a consideration, as that often drives expense.

A decision affecting property involves these same considerations plus "the amount of loss which the prevailing party ... would incur as a result of the party's inability to enforce the judgment during review."15 Often this is the value of the use of the property during review, although the judgment creditor is free to make any showing and argument. Also, the property itself may be the security once its value is established.16

Expert testimony could be submitted on value, or the testimony of the landowner because "[i]t is longstanding and well-established law that an owner is qualified to testify to the value of his property - no further expertise is required."17 The rules also permit a stay of only a portion of the judgment, and permit supersedeas requirements that mimic requirements of a judgment calling for periodic payments.18

Finally, a party who seeks a stay based on "alternate security" must make a motion, or present a stipulation, to post or hold other assets or other "reasonable means" of securing enforcement of the judgment.19 The rule specifically contemplates that such other assets may be held by the party's counsel or a non-party awaiting the result of the appeal.20

Parties often are well advised to discuss these possibilities and arrive at a solution that reasonably meets the needs of the situation. A party could offer property or any other type of arrangement satisfactory to the judgment creditor; in such cases, the parties should submit a stipulation and nothing is deposited with the court clerk. If an agreement cannot be reached, the trial court has discretion to accept such an offering in lieu of cash or a bond.

Risks to Respondents

Be aware that a respondent who loses on appeal likely is responsible for costs under Title 14 RAP that include "expenses incurred in superseding the decision of the trial court, but not ordinarily greater than the cost of a commercial surety bond."21 Many bonding companies offer bonds at 2 percent of the supersedeas amount per year. Thus, the judgment creditor who argues for a large supersedeas amount and disputes alternate security to insist upon a bond could find that its approach backfires.

Lawyers should inform their clients about exposure for the supersedeas costs post-appeal. Respondents should be receptive to proposals that achieve a reasonable stay solution and avoid unnecessary risk.

Mechanics

For cash deposits, a party simply goes to the clerk's office with the cash or certified check. At the same time that the cash is deposited, the party should file a Notice of Cash Supersedeas.22 Review Form 24 of the RAP and RCW 36.48.090 to inform the content of the notice.

For bonds or approved alternate security, a similar procedure is followed.23 Although the rules do not specifically require it and the bond or alternate security might readily appear in the docket, an attorney should consider filing a notice of the filing of the bond or alternate security highlighting that a stay is in effect. There's nothing wrong with a trip to the clerk's office; and it is safest to consider completing these filings in person rather than sending a legal messenger, to be sure nothing goes wrong.

One must provide the opposing party notice and copies of the filings or deposits. The rules allow the opposing party seven days to object by motion to the cash or bond supersedeas.24 Once the trial court resolves that motion, the judgment creditor has seven days to cure the deficiencies or enforcement may occur.25 At this point, either party might employ RAP 8.1(h) and take its concerns to the appellate court.

Subsequent Adjustment

RAP 8.1(g) provides that the trial court may change the supersedeas "for good cause shown." Altered circumstances likely would constitute good cause if they undermine the adequacy of the security. The rules are explicit that the trial court retains jurisdiction during the appeal to address "matters of supersedeas, stays, and bonds...."26

Against this backdrop, if you find yourself litigating supersedeas, stick with its principles, offer evidence supporting your position and follow the procedures of Title 8. The supersedeas is effective until the mandate from the appellate court issues.27

Good luck having a super supersedeas experience.

Averil Budge Rothrock focuses her practice on appellate review in the Seattle office of the Pacific Northwest regional firm Schwabe, Williamson & Wyatt. She is a former chair of the KCBA Appellate Law Section. At Schwabe, she is assistant practice group leader of general litigation. She can be reached at arothrock@schwabe.com.

1 State v. A.N.W. Seed Corp., 116 Wn.2d 39, 47 (1991) (citing Rule of Appellate Procedure (RAP) 7.2(c)).

2 Id. at 44.

3 Estate of Spahi v. Hughes-Northwest, Inc., 107 Wn. App. 763, 769 (2001) (citing Lampson Universal Rigging, Inc. v. Wash. Pub. Power Supply Sys., 105 Wn.2d 376, 378 (1986)).

4 Seventh Elect Church in Israel v. Rogers, 34 Wn. App. 105, 120 (1983).

5 RAP 8.1(b).

6 See Civil Rule 62.

7 See RAP 8.1(b)(1) ("Money Judgment") and (b)(2) ("Decision Affecting Property"). See also RAP 8.1(d) ("Form of Cash Supersedeas; Effect of Filing Bond or Other Security").

8 RAP 8.1(e) ("Objection to Supersedeas").

9 RAP 8.1(h).

10 RAP 8.1(a)(3) ("Other Civil Cases").

11 Id.

12 RAP 8.1(a)(3).

13 See RAP 8.1(f).

14 RAP 8.3(c)(1).

15 RAP 8.1(c)(2).

16 Id.

17 Erickson v. Chase, 156 Wn. App. 151, 160 (2010).

18 RAP 8.1(c)(3).

19 RAP 8.1(b)(4).

20 Id.

21 RAP 14.3(a)(5).

22 RAP 8.1(d)(1).

23 See RAP 8.1(d)(2).

24 See RAP 8.1(e).

25 Id.

26 RAP 7.2(h).

27 See RAP 8.6.

As published KCBA Bar Bulletin, May 2015.

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