Execution

Question 1

Stay pending post-trial motions and appeal

Answer 1

There is an automatic 15-day stay on the execution of all judgments to allow the losing party time to file post-judgment motions. This stay may be eliminated and immediate execution permitted by order of the court.

Question 2

Stay pending disposition of timely filed post-trial motion

Answer 2

Whenever a post-trial motion is timely filed, a stay of execution is continued automatically until the disposition of the motion…but a court order may permit immediate execution.

Question 3

Stay pending appeal

Answer 3

There is normally NO automatic stay pending appeal, but if the judgment is for the payment of money, an appellant may obtain a stay pending appeal by filing a sufficient bond in the lower court for the amount of the judgment + twice the statutory rate of interest, payable if the appeal is dismissed or the judgment affirmed

Question 4

Punitive damages

Answer 4

In any certified civil class action, the trial court upon the posting of a bond or equivalent surety MUST stay execution of any judgment entered for punitive damages pending the completion of any appellate review of the judgment.

The required bond or surety is the lesser of:

1. the amount of the punitive damages judgment, plus twice the statutory rate of interest; or
2. 10% of the net worth of the defendant

Question 5

Appeal of an interlocutory order/injunction

Answer 5

When appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction, the court may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon a sufficient bond or other conditions it considers proper for the security of the adverse party.

Question 6

Standard for review of injunctions

Answer 6

The court should consider:

1. the likelihood of success on appeal;
2. whether irreparable damage will occur in the absence of a stay or injunction pending appeal;
3. the irreparable damage caused by such a stay or injunction; and
4. the public interest

Question 7

What is the power of the appellate court to grant a stay or injunction pending appeal?

Answer 7

The appellate court has similar power to grant a stay or injunction pending appeal, or to vacate one granted by the trial court, or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

• ordinarily, such a stay or injunction pending appeal must be sought in the trial court before the appellate court will entertain it.

Question 8

What is execution?

Answer 8

Execution is a document issued by the clerk and addressed to the sheriffs of the state, commanding them to levy on the property of the defendant. It may issue upon a final, recorded judgment upon the oral request of counsel for the winning P, or by the P himself.

Question 9

Discovery in aid of execution

Answer 9

The winning party (judgment creditor) may use any or all of the discovery devices to discovery from any person, including the judgment debtor, what property the judgment debtor may own or have any interest in and where the property may be, so that it may be executed upon.

Question 10

Fact information sheet

Answer 10

In addition to any other discovery available to a judgment creditor, the court, at the request of the judgment creditor, must order the judgment debtor to complete a Fact Information Sheet: a standardized form listing judgment debtor’s income and assets.

• the order to complete the Fact Information Sheet may be included in the final judgment
• it must be completed within 45 days of the judge’s order or such other reasonable time as determined by the court
• Failure to obey the order may be considered contempt of court
• The court must also include the additional Spouse Related Portion of the Fact Information Sheet on a showing that a reasonable basis exists for discovery of separate income and assets of the judgment debtor’s spouse

Question 11

Conveyance of interest in land

Answer 11

If a judgment directs execution of a conveyance of any interest in land in Florida, and the party fails to do so within the time prescribed, the court order will constitute such a conveyance

Question 12

Attachment

Answer 12

When a party is ordered to do a specific act, the judgment must specify the time within which the act is to be done. If the party fails to act within that time, the clerk on an affidavit showing these facts, may order the attachment of the person of the defendant and, if he cannot be found, the sequestration of his estate until the order is complied with or the court orders a discharge. The court may order payment and satisfaction out of the estate and effects so sequestered.

Question 13

Contempt

Answer 13

If a judgment is for the performance of a specific act, the court may hold a disobedient party in contempt

Question 14

Substituted person

Answer 14

As an alternative, the court may direct that the order be carried out as far as is practicable by some other person appointed by the court

Question 15

Writ of possession

Answer 15

When a judgment or order is for the delivery of possession of real property, the judgment or order must direct the clerk to issue a writ of possession.

• the clerk must issue the writ forthwith and deliver it to the sheriff for execution
• if a person other than the party against whom the writ is issued is in possession of the property, she may retain possession by filing with the sheriff an affidavit that she is entitled to possession.
• thereupon, the sheriff shall desist from enforcing the writ and serve a copy of the affidavit on the party seeking enforcement, who may then apply to the court for a determination of the right to possession of the property

Question 16

Reviving a judgment

Answer 16

A judgment generally is valid for 20 years.

• to extend the life of the judgment, the plaintiff must bring an action based on the old judgment and obtain a new judgment, which effectively extends the life of the original judgment
• this process used to be accomplished by seeking a writ of scire facias