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A Brief Overview of Stay Obligations and Appeal Obligations for Appeals to the Virginia Court of Appeals and Virginia Supreme Court | Vandeventer Black LLP

By on April 14, 2022 0

As part of a larger set of articles on appellate practice inspired by the Virginia Court of Appeals taking on an expanded role, this article will address the often overlooked but important topic of appellate sureties.

The term “call bond” is frequently used colloquially within the bar to refer to two different types of bond: (i) a stay bond or irrevocable letter of credit and (ii) a “call bond” or cost deposit. Both types of bonds are addressed in Virginia Code § 8.01-676.1 and in the Schedules to Parts 5 and 5A of the Virginia Supreme Court Rules.

Suspension of execution of judgment pending appeal

A suspension link, also known as a replaces a bond or an irrevocable letter of credit, is quite important because without it a party with a judgment can enforce even if the case is pending on appeal. To avoid this, the calling party must post a stay bond from a surety company or an irrevocable letter of credit from a bank in accordance with Virginia Code § 8.01-676.1(C). A party can deposit money in court with the suspension bond as security. Virginia Code §§ 1-205; 8.01-676.1(S). It is important to coordinate with the office of the court you are appealing from to ensure that this process runs smoothly.

The court of first instance sets the amount that must be covered by the suspensive bond or the irrevocable letter of credit. Section 8.01-676.1(C) provides that the suspension bond or irrevocable letter of credit shall be “conditional upon the execution or satisfaction of judgment and the payment of all damages suffered as a result of such suspension”.[.]The amount is based on the judgment amount plus an interest calculation for one year from the date of the notice of appeal, to a maximum of $25 million. Virginia Code § 8.01-676.1(J).

In particular, given that staying enforcement pending appeal may be particularly prejudicial to the parties in certain contexts, a court may decline to stay enforcement of a judgment relating to maintenance or custody in cases family relations or when a judgment refuses, grants, modifies or dissolves an injunction. Virginia Code § 8.01-676.1(D).

On the other hand, a suspensive bond or an irrevocable letter of credit is not necessary to suspend the execution of the judgment in all cases. A court has the discretion to waive the posting of a suspensive bond or an irrevocable letter of credit for damages greater than or other than compensatory damages. Virginia Code § 8.01-676.1(L). In addition, the parties may agree to waive the suspensive bond/irrevocable letter of credit requirement altogether or agree to a suspensive bond or irrevocable letter of credit in an amount less than compensatory damages. Identifier. In addition, no appellate security is required when filed to protect the estate of a deceased or disabled person or the interests of the Commonwealth or locality. Virginia Code § 8.01-676.1(M).

Call Bonds (Cost)

With respect to an actual call bond, also known as a cost bond, callers are required to post a bond, or alternatively an irrevocable letter of credit, conditional on payment of all damages, costs and fees incurred before the courts of appeal. On appeal as of right, the security is due with the notice of appeal. Virginia Code § 8.01-676.1(A). In a petition situation, the bond is due within 15 days of the granting of the petition by the Supreme Court or the Court of Appeal. Virginia Code § 8.01-676.1(B). Generally, the bond amount is $500, but this can be changed by a trial or appellate court. Virginia Code § 8.01-676.1(A), (B). As with stay bonds, a party can deposit money in court with the bond instead of the surety. Virginia Code §§ 1-205; 8.01-676.1(S).

Civil litigants should note that with the expansion of the Court of Appeal’s jurisdiction to allow appeals as of right in the vast majority of civil cases, most civil appellants will now be required to post bond with their Notice of Claim. call.

Court rules are relatively lenient on bail. The proper execution of these obligations is not jurisdictional. The Court will not dismiss an appeal for a defective surety or irrevocable letter of credit unless the respondent files a statement describing the defects of such surety or letter of credit within 21 days of receiving written notice from the appellant regarding the bond and the appellant fails to remedy such default within 21 days. Go. Sup. CT. A. 5:24 and 5A:17.

Suspension and Appeal Bond Forms

The Virginia Supreme Court rules include form schedules after Parts 5 and 5A that provide helpful guidance on the proper format for a stay bond and an appeal bond.

Appeal bonds are an essential but often overlooked part of appeal case management. Thus, litigants responsible for appeals should be familiar with the law governing suspension and appeal bonds.