# Third District Court of Appeal

State of Florida

Opinion filed April 18, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D18-300

Lower Tribunal No. 16-9731

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### The Waves of Hialeah, Inc.

,

Appellant,

vs.



### Julia Machado, etc., et al.

,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto

Diaz

, Judge.

Luks, Santaniello, Petrillo & Jones, and Edgardo Ferreyra, Jr., Daniel J.

Santaniello (Boca Raton), Heather M. Calhoon, and Daniel S. Weinger

, for

appellant.

The Haggard Law Firm, P.A., and J ames C. Blecke, for appellees.

Before EMAS, FERNANDEZ and LUCK, JJ.

PER CURIAM.ON MOTION FOR REVIEW

The Waves of Hialeah, Inc. (“The Waves”), the defendant and judgment

debtor below, seeks review of the trial court’s order denying its “Motion to Set

Good and Sufficient Bond and Other Conditions.” We generally review the trial

court’s order on a motion for supersedeas bond under an abuse of discretion

standard. City of Lauderdale Lakes v. Corn

, 415 So. 2d 1270 (Fla. 1982).

However, to the extent that the trial court’s determination rests upon the

construction of a rule or statute, our review is de novo

. See, e.g., R.J. Reynolds

Tobacco Co. v. Sikes

, 191 So. 3d 491 (Fla. 1st DCA 2016). For the reasons that

follow, we deny the motion for review.

FACTS AND BACKGROUND 1

Appellees Julia Machado and Rafael Guevara, as co-personal representatives

of the Estate of Yaimi Guevara Machado, filed suit against The Waves. The suit

alleged that Yaimi was murdered while on the premises of The Waves, and that

Yaimi’s death was the result of negligent or inadequate security provided by The

Waves.

Following a trial, the jury awarded damages in the total amount of twelve

million dollars. Final judgment was entered on December 4, 2017, and the trial

court denied The Waves’ post-trial motions.

1 The background facts are taken from appellant’s motion for review and are

accepted as true for purposes of this court’s review.

2Thereafter, The Waves filed a Motion to Set Good and Sufficient Bond and

Other Conditions. In its motion, The Waves recognized that, pursuant to Florida

Rule of Appellate Procedure 9.310(b)(1), where the judgment is “solely for the

payment of money, a party may obtain an automatic stay of execution pending

review, without the necessity of a motion or order, by posting a good and sufficient

bond equal to the principal amount of the judgment plus twice the statutory rate of

interest on the total amount on which the party has an obligation to pay interest.”

Notwithstanding this automatic stay provision for money judgments, The

Waves asked the trial court to reduce the amount of the bond necessary for a stay

pending appeal, suggesting that the posting of one million dollars, together with

the setting of non-monetary conditions, 2 would constitute a “good and sufficient

bond.”

At the hearing on the motion, counsel for The Waves argued that the posting

of a twelve million dollar bond (plus two years’ interest at the statutory rate)

“[w]ill most likely bankrupt my client.” Also at the hearing, The Waves conceded

that this court has previously construed rule 9.310(b)(1) as the only method by

which an appellant may obtain a stay on a money judgment. Rule 9.310 provides

in relevant part:

2 The Waves suggested, as an additional condition, that it would execute an

agreement not to dissipate any property or assets during the pendency of the

appeal.

3(a) Application. Except as provided by general law and in

subdivision (b) of this rule, a party seeking to stay a final or non-final

order pending review shall file a motion in the lower tribunal, which

shall have continuing jurisdiction, in its discretion, to grant, modify,

or deny such relief. A stay pending review may be conditioned on the

posting of a good and sufficient bond, other conditions, or both.

(b) Exceptions.

(1) Money Judgments

. If the order is a judgment solely for the

payment of money, a party may obtain an automatic stay of execution

pending review, without the necessity of a motion or order, by posting

a good and sufficient bond equal to the principal amount of the

judgment plus twice the statutory rate of interest on judgments on the

total amount on which the party has an obligation to pay interest.

Multiple parties having common liability may file a single bond

satisfying the above criteria.

The trial court denied The Waves’ motion to reduce the amount of the

supersedeas bond, and this motion for review follows.

ANALYSIS

We acknowledge a conflict exists between this court and two of our sister

courts on the issue of whether a trial court, in the exercise of its discretion, may

reduce the amount or otherwise alter the conditions of a supersedeas bond. 3 We

3 This court has held that if a judgment debtor seeks to stay execution of a money

judgment pending appeal, “he may obtain a stay ‘ only by the posting of the bond in

the amount set forth in Rule 9.310(b).’” Mellon United Nat’l Bank v. Cochran

, 776

So. 2d 964 (Fla. 3d DCA 2000) (quoting Campbell v. Jones

, 648 So. 2d 208, 209

(Fla. 3d DCA 1994)) and Palm Beach Heights Dev. & Sales Corp. v. Decillis

, 385

So. 2d 1170, 1171 (Fla. 3d DCA 1980)) (emphasis added). Compare Silver Beach

Towers Prop. Owners Ass’n, Inc. v. Silver Beach Investments of Destin, LLC

, 231

So. 3d 494, 495 (Fla. 1st DCA 2017) (review denied, 223 So. 3d 997 (Fla. 2017)),

wherein the First District held that “rule 9.310(b)(1) is not the only avenue for

obtaining a stay of a money judgment. A trial court has the authority, upon the

motion of a party pursuant to rule 9.310(a), to enter a stay upon conditions other

4need not belabor this point, however, because in 2006, the Legislature enacted

section 45.045, Florida Statutes (2006), which supplements rule 9.310 and

authorizes the trial court, under certain circumstances and upon a proper showing,

to reduce the amount, or otherwise alter the conditions, of a supersedeas bond.

Section 45.045 provides:

(1) Except for certified class actions subject to s. 768.733, in any civil

action brought under any legal theory, the amount of a supersedeas

bond necessary to obtain an automatic stay of execution of a judgment

granting any type of relief during the entire course of all appeals or

discretionary reviews, may not exceed $50 million for each appellant,

regardless of the amount of the judgment appealed. The $50 million

amount shall be adjusted annually to reflect changes in the Consumer

Price Index compiled by the United States Department of Labor.

(2) In any civil action brought under any legal theory, a party seeking

a stay of execution of a judgment pending review of any amount may

move the court to reduce the amount of a supersedeas bond required

to obtain such a stay. The court, in the interest of justice and for good

cause shown, may reduce the supersedeas bond or may set other

than a bond, so long as the conditions are adequate to ensure payment;” and Platt

v. Russek

, 921 So. 2d 5, 7-8 (Fla. 2d DCA 2004):

Although a bond in the amount required for an automatic stay under

rule 9.310(b)(1) may, as a general rule, be the appropriate condition

for a stay of execution, we disagree with the Third District that it is

the only condition. Rule 9.130(a) governs the procedure by which a

party may move a trial court for a stay of a final or nonfinal order

pending appellate review. The trial court, in its discretion, may grant

or deny a motion for stay, and a stay “may be conditioned on the

posting of a good and sufficient bond, other conditions, or both.” Rule

9.310(b)(1) states that if the order sought to be stayed is solely a

money judgment, a party need not file a motion pursuant to rule

9.310(a) to obtain an order staying execution but may obtain an

automatic stay of execution upon posting the requisite bond.

5conditions for the stay with or without a bond. The court may not

reduce the supersedeas bond if the appellant has an insurance or indemnification policy applicable to the case

. This subsection does

not apply to certified class actions subject to s. 768.733.

(3) If an appellant has posted a supersedeas bond for an amount less

than that which would be required for an automatic stay pursuant to

Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee

may engage in discovery for the limited purpose of determining

whether the appellant has dissipated or diverted assets outside the

course of its ordinary business or is in the process of doing so.

(4) If the trial or appellate court determines that an appellant has

dissipated or diverted assets outside the course of its ordinary business

or is in the process of doing so, the court may enter orders necessary

to protect the appellee, require the appellant to post a supersedeas

bond in an amount up to, but not more than, the amount that would be

required for an automatic stay pursuant to Rule 9.310(b)(1), Florida

Rules of Appellate Procedure, and impose other remedies and

sanctions as the court deems appropriate.

Accordingly, we need not consider in this case whether our decisions in

Cochran

, Campbell and Decillis are in conflict with Silver Beach and Platt

, in light

of the discretion now conferred upon the trial court by the Legislature’s 2006

enactment of section 45.045(2), 4 which authorizes a trial court to, under

4 Neither party contends that this statute, or the particular provision at issue,

unconstitutionally encroaches upon the Florida Supreme Court’s rule-making

authority. See Art. V, § 2(a), Fla. Const. (providing: “The supreme court shall

adopt rules for the practice and procedure in all courts

. . . .”); Abdool v. Bondi

, 141 So. 3d 529, 538 (Fla. 2014) (holding that “the Florida Constitution grants this

Court the exclusive authority to adopt rules of judicial practice and procedure for

actions filed in this State”). We need not and therefore do not reach that issue

here, but note that subsection (1) of this statute has previously been upheld against

such a challenge. See, e.g., BDO Seidman, LLP v. Banco Espirito Santo Int’l,

Ltd.

, 998 So. 2d 1 (Fla. 3d DCA 2008) (upholding the constitutionality of the

statutory $50 million cap on a supersedeas bond notwithstanding rule 9.310(b)(1)’s

6appropriate circumstances and showing, and with adequate conditions, reduce a

supersedeas bond to some amount less than “the principal amount of the judgment

plus twice the statutory interest” as otherwise required for an automatic stay under

rule 9.310(b)(1).

Importantly for our purposes, however, that same statute also creates an

exception to the exercise of this discretion, expressly providing that the trial court

“may not reduce the supersedeas bond if the appellant has an insurance or

indemnification policy applicable to the case.” § 45.045(2), Fla. Stat. The Waves

has acknowledged that it had an insurance policy, applicable to this case, in the

amount of one million dollars. Therefore, the trial court could not, and properly

did not, reduce the amount of the supersedeas bond.

The motion for review is therefore denied.

requirement that a good and sufficient bond for a money judgment must be “equal

to the principal amount of the judgment plus twice the statutory rate of interest on

judgments”). See also Fla. R. App. P. 9.310(a) (“ Except as provided by general

law and in subdivision (b) of this rule, a party seeking to stay a final or nonfinal order pending review shall file a motion in the lower tribunal, which shall

have continuing jurisdiction, in its discretion, to grant, modify, or deny such

relief.”) (Emphasis added.)

7