IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

LINDA C. PEACOCK, ) 

 Plaintiff, ) 

v. ) CIVIL ACTION NO. 05-00377-KD-C 

BURNEY H. MERRILL, et al., ) 

 Defendants. ) 

 ORDER

 This matter is before the Court on a motion for disbursement of funds filed by the 

Defendants, Burney H. Merrill, J. Collier Merrill and Willis C. Merrill. (Doc. 708.) The 

Merrills request that the Court enter an order releasing the proceeds of funds deposited into the 

registry of the Court by a third party. The ownership of these funds was the subject of the 

declaratory judgment claim decided in the Merrills’ favor at trial. Initially, the Plaintiff, Linda 

Peacock, argued that the motion for disbursement was premature because a motion to alter or 

amend the judgment was pending. When that motion was denied, the Court entered an order 

requiring Peacock to show cause why the motion for disbursement of funds should not be 

granted. In response (Doc. 719), Peacock states that her time for appeal has not run, that an 

appeal “could potentially result in a reversal,” and that disbursing the funds would likely render 

them unavailable to her should she prevail on appeal. Peacock concludes her response with a 

motion to stay the judgment and the disbursement of funds pending appeal. 

 Unless the judgment is stayed, there is no reason the funds should not be disbursed to the 

Merrills in accordance with the declaratory judgment. Rule 62 of the Federal Rules of Civil 

Case 1:05-cv-00377-KD-C Document 724 Filed 06/02/10 Page 1 of 4
2 

Procedure governs the stay of proceedings to enforce a judgment.1

 If an appeal is taken from a 

monetary judgment, “the appellant may obtain a stay by supersedeas bond.” Fed. R. Civ. P. 

62(d). If an appeal is taken from a judgment granting injunctive relief, whether to grant a stay is 

within the Court’s discretion. Fed. R. Civ. P. 62(c). Because a declaratory judgment does not fit 

neatly into either category, the Court must look beyond the judgment to its practical effect. A 

declaratory judgment which requires one party to pay a specific sum of money to another party 

is, in essence, a monetary judgment which may be stayed upon the posting of a supersedeas 

bond. Hebert v. Exxon Corp., 953 F.2d 936 (5th Cir. 1992) (per curiam). But a declaratory 

judgment that merely adjudicates rights—even rights involving funds deposited with the Court—

falls within the Court’s discretionary power to stay pending appeal. In re Texas Equip. Co., 283 

B.R. 222, 226 (Bankr. N.D. Tex. 2002). The instant case involves no payment of money by 

either Plaintiff or Defendants, only the right to funds deposited by a third party. Consequently, 

whether to grant a stay pending appeal is within the Court’s discretion. 

 According to the Eleventh Circuit, a stay pending appeal is “an exceptional response 

granted only upon a showing of four factors: 1) that the movant is likely to prevail on the merits 

on appeal: 2) that absent a stay the movant will suffer irreparable damage; 3) that the adverse 

party will suffer no substantial harm from the issuance of the stay; and 4) that the public interest 

will be served by issuing the stay.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). 

Moreover, the party seeking a stay bears “a heavy burden of making out a case for such 

extraordinary relief.” Winston-Salem/Forsyth County Bd. of Ed. v. Scott, 404 U.S. 1221, 1230 

(1971) (Burger, C.J., in chambers). Peacock does not acknowledge her burden and, 

consequently, fails to make a showing on each of the factors. For that reason alone, her request 

 

1 Initially, an automatic stay is in effect for fourteen days after the entry of judgment. Fed. R. Civ. P. 62(a). That 

time period has passed. 

Case 1:05-cv-00377-KD-C Document 724 Filed 06/02/10 Page 2 of 4
3 

for a stay is due to be denied. Nevertheless, out of an abundance of caution, the Court 

independently addresses each factor below. 

 First, Peacock does not point to any issue or issues that would provide a likelihood of 

success on appeal. In fact, she is equivocal about whether she intends to file an appeal. The 

Court, being quite familiar with the issues raised on summary judgment, at trial and in Plaintiff’s 

post-trial motion, does not find a likelihood that Peacock will prevail on appeal, if one is filed. 

Second, Peacock cannot show irreparable damages. At most, there is a possibility that 

disbursement of funds at this stage could result in monetary injury.2

 It is well-settled that an 

injury which can be remedied through monetary damages is not irreparable. E.g., Cates v. 

Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) (discussing irreparable injury in context of 

preliminary injunction). Third, the necessity of proving “no substantial harm” to the Defendants 

falls on the Plaintiff, who has failed to address this element. In fact, there is evidence of 

substantial harm to the Defendants. As the Merrills point, they are liable for taxes on a 

substantial amount of money to which they currently have no access. Finally, the public interest 

factor has no bearing in this matter, which is a private dispute over the ownership of a privatelyheld company. 

 For the reasons set forth above, Defendants’ motion for disbursement of funds is 

GRANTED, and Plaintiff’s request of a stay pending appeal is DENIED. The Clerk of Court is 

hereby directed to pay over to the Defendants a sum equal to the amount of the two deposits 

($6,074,388.53 plus $748, 285.97), plus accrued interest, minus the Clerk’s fee of 10% on 

 

2

 Peacock argues that “there is a substantial likelihood that said funds will be spent, used, or otherwise transferred 

from the possession of the defendants, and will not longer remain available to the plaintiff, should she prevail on 

appeal.” (Pl’s Rsp., Doc. 719, ¶ 7.) The question is not whether “said funds” will be available but whether money 

could make the Plaintiff whole if she prevails. 

Case 1:05-cv-00377-KD-C Document 724 Filed 06/02/10 Page 3 of 4
4 

interest earned. Payment shall be made to counsel on behalf of the Merrill Defendants, payable 

to “The MacDonald Fleming Moorhead Trust Account.” 

 DONE and ORDERED this the 2nd day of June, 2010. 

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE 

Case 1:05-cv-00377-KD-C Document 724 Filed 06/02/10 Page 4 of 4