Appeal Bonds, Sureties, and Stays of Enforcement
By Brad A. Elward and Stacie Linder
Heyl, Royster, Voelker & Allen, Peoria, Illinois
Illinois Law
I. Introduction
As a general rule, there is no automatic stay of enforcement or execution of a judgment. Once judgment is entered, the party seeking to appeal must also take affirmative steps to ensure that the judgment is not executed or enforced. While Illinois law provides for restitution in the event the judgment is reversed on appeal, that restitution is limited to the party appellee and is not extended to unrelated third-parties to whom those proceeds are given. Williamsburg Village Owners’ Ass’n, Inc. v. Lauder
Associates, 200 Ill. App. 3d 474, 483, 558 N.E.2d 208 (1 st Dist. 1990). Thus, if a defendant pays monies to the plaintiff, who then uses a portion of that money to pay incurred medical bills, the defendant, if he prevails on the appeal and obtains a reversal, cannot pursue the medical providers for repayment. His only remedy is against the plaintiff.
In Illinois civil cases there are two windows of danger where an aggressive opponent may seek to execute on a judgment. The first occurs immediately after the entry of judgment and prior to filing of a post trial motion. Illinois does not have an automatic stay provision. The second occurs after the post trial motion is denied and prior to the filing of the appeal. The filing of a notice of appeal does not act to stay enforcement or execution of the judgment. Nemanich v. Long Grove Country Club Estates, Inc., 119
Ill. App. 2d 169, 255 N.E.2d 466 (2 nd Dist. 1970).
The filing of a bond and the filing of an appeal are considered separate rights. Kurek v. Kavanagh,
Scully, Sudow, White & Frederick, 50 Ill. App. 3d 1033, 1040, 365 N.E.2d 1191 (3 rd Dist. 1977). The failure to file a bond does not affect the right to appeal (so long as the subject matter in dispute is not compromised). See Marion Hosp. Corp. v. Illinois Health Facilities Planning Bd., 201 Ill. 2d 465, 777
N.E.2d 924 (2002). An appeal is perfected when the notice of appeal is filed with the circuit court.
People ex rel. Anders v. Burlington Northern, Inc., 31 Ill. App. 3d 1001, 1003, 335 N.E.2d 102 (3 rd Dist.
1975). Thus, the failure to file an appeal bond does not affect the ability to appeal and contest the judgment. See Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 354, 280 N.E.2d 208 (1972).
In Illinois, stays and bonds are governed by Supreme Court Rule 305. 210 Ill. 2d R. 305, amended June
15, 2004; effective July 1, 2004.
II. Post Trial Motions as an Interim Stay of Enforcement and Execution
Illinois law affords a litigant 30 days from the entry of judgment within which to file a post trial motion attacking the judgment. 735 ILCS 5/2-1202 (jury cases); 5/2-1203 (nonjury cases). A timely-filed post trial motion temporarily stays the enforcement and execution of a judgment until the court rules on the motion. 735 ILCS 5/2-1202(d); 2-1203(b); In re Marriage of Schomburg, 269 Ill. App. 3d 13, 20, 645
N.E.2d 1005 (1 st Dist. 1995). No bond or other form of security is required to effectuate the stay. A post
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trial motion is used not only to preserve error and to offer the circuit court a chance to correct any mistakes, but also to have additional time to obtain the necessary security to support the stay.
III. Motions for Stay of Enforcement and Execution of Judgment
A. Stays of Money Judgments – Automatic
Rule 305(a) states that a stay of enforcement of a money judgment, or any portion of a judgment which is for money, shall be automatic if the party seeking to appeal files a notice of appeal and an appeal bond or other form of security within the time for filing the notice of appeal or within any extension of time granted under Rule 305(c). The bond and motion for stay of enforcement must be presented to, approved by, and filed with the court. Notice of presentment of the bond or other form of securities must be given to all parties. If a form of security other than an appeal bond is presented, the appellant bears the burden of demonstrating the adequacy of such other security. If these conditions are met, approval of the bond is considered ministerial and the stay becomes automatic. In re Allcock, 113 Ill.
App. 3d 121, 124, 446 N.E.2d 871 (3 rd Dist. 1983).
B. Stays of Non-money Judgments – Discretionary
Stays in the enforcement of non-money judgments, appealable interlocutory orders, or other judicial or administrative orders are discretionary and may be conditioned “on such terms as are just.” Rule 305(b).
A bond or other form of security may be required, and in any event, shall be required to protect an
Appellee’s interest in real estate or property. Rule 305(b). A stay may be obtained on notice and motion, and an opportunity for opposing parties to be heard.
Rule 305(b) applies to interlocutory matters, such as the appeal of a restraining order or injunction under Rule 307(a) or Rule 307(d). Indeed, 735 ILCS 5/11-103 gives the circuit court the power to require a bond with proper security prior to entering a restraining order or preliminary injunction. See General
Elec. Co. v. Local 997 United Auto Workers’ of America, 8 Ill. App. 2d 154, 167, 130 N.E.2d 758 (3 rd Dist.
1955).
Rule 308(a), which governs interlocutory appeals of certified questions of law, does not have an automatic stay and instead states that the granting of the interlocutory Application for Leave to Appeal does not automatically stay the underlying proceedings, although a request may be made to the circuit or appellate court. Rule 308(e).
As a special note, if a party appeals the grant of an order falling within the gambit of Rule 306(a), including an order granting a new trial, the underlying litigation is automatically stayed per Rule 306(g).
That Rule further provides that a bond may be required only after a showing of good cause.
C. Failure to Obtain Stay
1. Failure to Obtain a Stay as Concerning a Party
Failing to obtain a stay of enforcement of judgment means that the appellee may begin collection or enforcement of the judgment. The judgment creditor may begin proceedings to force a sale, to garnish wages, to seize accounts.
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2. Failure to Obtain a Stay as Concerning a Non-Party
In the event the appellant fails to obtain a stay within the time limits afforded by Rule 305, Rule 305(k) provides that the reversal or modification of the judgment does not affect the title, right, or interest of a person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed; nor shall the reversal or modification affect any right of any person who is not a party to the action under or by virtue of any certificate of sale issued pursuant to a sale based on the judgment and before the judgment is stayed. Rule 305(k) applies even if the appellant is a minor or person under legal disability or under duress at the time the judgment becomes final. Rule 305(k).
IV. Appeal Bonds, Sureties, and Other Forms of Security
Stays are obtained by posting an appeal bond or other approved collateral. Appeal bonds, formerly known as supersedeas bonds, are intended to secure a judgment for the Appellee while the appeal is pursued and to prevent execution or enforcement of judgment, thereby preserving the status quo. In re
Marriage of Suriano and LaFeber, 324 Ill. App. 3d 839, 854, 756 N.E.2d 382 (1 st Dist. 2001). The purpose of the appeal bond is to stay enforcement of the judgment; it does not affect the judgment itself. An appeal bond is offered to provide the appellee with some protection so that the judgment award is not dispensed with or disposed of by the defendant.
Rule 305(a), which applies to a stay of enforcement of money judgments, permits the filing of an appeal bond or “other form of security, including, but not limited to, letters of credit, escrow agreements, and certificates of deposit … .” Rule 305(a). Rule 305(b), which applies to non-money judgments, is worded similarly.
A. The Appeal Bond
An appeal bond is a document signed by the judgment defendant and also executed by a surety, which provides the financial backing for the bond. It is typically a single page and often contains the caption of the case in which it is filed. The bond typically reads as follows:
On ____, 200_, judgment was entered in the amount of $____ against def(s) ____ and in favor of plaintiff _____. Defendant(s) ____ has appealed to the _________, and seek to have execution and enforcement of the judgment entered against them stayed during the pendency of __ appeal. Defendant(s) ______ hereby files ___ appeal bond in the amount of $_____ in order to stay execution and enforcement of the judgment against them/him/her/it.
The additional surety language provides:
The undersigned surety, ____, hereby agrees to pay the above judgment creditor, ___, only such portion of the judgment that is affirmed and not reversed against defendant(s) _____ up to the amount of _____ including interest, following the exhaustion of all appellate remedies. Should the entire judgment against ____ be reversed on appeal, this bond is void.
The obligation of this bond is limited to a maximum of $____.
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If an attorney-in-fact signs for the surety, an affidavit or power of attorney of the individual should be attached.
If the judgment is affirmed and the judgment defendant fails to pay, the judgment creditor may commence a collection action based on the appeal bond. The judgment creditor may recover against the principal – the judgment defendant – or the surety. The surety then has a direct action for indemnity against the judgment defendant. However, unless the surety requires some for of collateral to secure the bond, this action is likely to be unsuccessful.
While both Rule 305(a) and Rule 305(b) indicate that a “bond or other form of security” may be posted, only Rule 305(a) specifically lists what securities may be deemed acceptable. However, one can assume that the same alternative forms of security available under Rule 305(a) are proper under Rule 305(b).
Illinois law provides that where there are several appellants, appeal bonds are joint and several, and therefore, a sufficient bond posted by one or a group of defendants obviates the need for a bond from all defendants. Sanger v. Nadelhoffer, 34 Ill. App. 252 (2 nd Dist. 1889).
B. Surety
A surety is a person or corporation that undertakes to financially back the obligation of another. A personal surety must be a resident of the State and must generally meet certain conditions, as set forth in local rules. South Side Bank & Trust Co. v. Yorke, 15 Ill. App. 3d 948, 950, 305 N.E.2d 367 (1 st Dist.
1973). A personal surety may have to undergo a separate approval hearing before the court in order to be properly designated as a personal surety. A corporate surety is typically a financial company or insurance company and must be licensed to do business, and specifically write surety policies, within the
State. 215 ILCS 5/390. To determine whether your proposed surety is in fact licensed to do business in
Illinois, you should consult the Illinois Department of Financial and Professional Regulation, Division of
Insurance. A written copy of the approved insurance sureties, entitled Summary of Annual Statements, is available but is typically a year behind. The appropriate lines of authority are listed in Section 4 of the
Illinois Insurance Code (215 ILCS 5/4), as Class 2, Casualty, Fidelity, and Surety, Clause (g) Fidelity and
Surety. Some counties, such as Cook County, regularly publish a Civil Surety Book, stating which sureties and even which attorney-in-fact, are approved. Always check this before obtaining your surety or your motion to approve the appeal bond may be denied.
Remember that the surety is essentially agreeing to meet a pre-determined obligation. The defendant has already had a judgment entered against it and if the appeal is not successful, the judgment is due and owing.
C. Other Forms of Security
1. Letters of credit, escrow agreements, certificates of deposit
Rule 305(a) specifically authorizes the uses of these “other forms of security” subject to the appellant’s demonstration that the other forms of security are sufficient.
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2. Land trust bonds
Rule 305(i) provides that the filing of a bond or other form of security by a beneficiary under a land trust where a land trust is a party shall be considered the filing of a bond for the purposes of Rule 305.
3. Cash deposits
The judgment debtor may also deposit with the court enough money to satisfy the judgment and probable costs of appeal. The clerk of court is then required to place the deposited money in an interestbearing account, and then to pay the funds only upon an order of the court finding that: (1) the order is consistent with the account records as to the amount involved; and (2) the order correctly identifies affected parties and specifies to who payments are to be made and the amount each is to receive. 215
ILCS 5/2-1011(a)(c). The obvious disadvantage of this is that the defendant does not have these funds available and loses the opportunity to obtain a greater interest rate on its investment than it might be required to pay.
D. Amount of the Appeal Bond or Other Form of Security
Illinois law provides no real guidance as to what amount of a bond is required. Rule 305(a) states only that the bond or other form of security must “be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal.”
As a general rule of thumb, a bond should be obtained and presented in an amount equal to one and one-half times (150 percent of) the judgment. Kionka, Edward J., Appeals to the Illinois Supreme and
Appellate Court, ISBA (1994 ed). This should provide sufficient funds for judgment interest and for court costs, even if the appeal lasts over a year.
Rule 305(a) now gives the circuit court the discretion to approve a bond or other form of security in an amount less than the amount of the judgment plus anticipated interest and costs, but requires the court to impose upon the defendant additional conditions to prevent dissipation or diversion of the judgment debtor’s assets during the appeal.
E. Use of an Insurance Policy as Bond
An insurance policy may also be filed in lieu of an appeal bond. Rule 305(j) permits the filing of an insurance policy pursuant to section 392.1 of the Illinois Insurance Code (215 ILCS 5/392.1). The movant must obtain a certified copy of the policy and provide an affidavit of a company official indicating that the policy tendered is the actual policy, that it was in effect and that there are no policy defenses being raised, and that the insurance company will place the policy with the court in lieu of the standard bond.
There are times when the policy limits do not meet the judgment amount and a combination of the insurance policy and a supplemental bond must be filed. For example, if the judgment is for $2,000,000 and the policy has limits of $1,500,000, the appellant, if he wishes to stay enforcement for the remaining $500,000, must post an appeal bond or other form of security to cover the remaining
$500,000 of exposure. If no supplemental bond is filed, the judgment defendant faces a possible enforcement proceeding concerning the exposed amount.
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In Burkart v. Toraason, 107 Ill. App. 3d 92, 437 N.E.2d 388 (3 rd Dist. 1982), the appellate court affirmed the circuit court’s refusal to accept the insurance policy because the underlying judgment exceeded the insurer’s contractual obligation under the policy. This can be avoided by the tendering of a supplemental bond. Moreover, recent modifications to Rule 305(a) suggest that such a policy, while insufficient to cover the entire judgment, interest, and costs, may nevertheless be approved contingent upon additional conditions of the judgment debtor to prevent dissipation or diversion of the judgment debtor’ assets during the appeal. Rule 305(a). Commentary, Supreme Court Rule 305(a) (June 15, 1994).
One area of concern for practitioners is whether the insurance policy posted covers interest that accrues during the pendency of the appeal. The policy should be checked in this regard, although most do provide for the payment of interest.
F. Modification of the Bond or Other form of Security or the Amount Thereof
If the notice of appeal is amended such that additional relief is requested beyond that requested in the original notice of appeal, a supplemental bond must be obtained and presented and a supplementary stay requested. Rule 305(f).
Moreover, if the term of the bond, amount of the bond, or form of security needs to be modified, Rule
305(h) confers to the appellate court the power to change the amount, terms, or security of the bond or other form of security. This scenario arises when the appeal takes longer than anticipated and the accumulating interest threatens to surpass the amount of the original bond. Likewise, in some cases, surety bonds expire and must be renewed annually.
G. The Appellant is a Municipal Entity
If an appeal is prosecuted by a public, municipal, governmental, or quasi-municipal corporation, or by a public officer in that person’s official capacity for the benefit of the public, the circuit court, or the reviewing court or a judge thereof, may stay the judgment pending appeal without requiring that any bond or other form of security be given. Rule 305(i).
H. If the Circuit Court Refuses to Set Bond
Whether to set a bond and issue a stay under Rule 305(a) is not discretionary. Thus, once the appellant presents a proper bond and complies with Rule 305(a), the bond must be approved and the stay is automatically issued. If the circuit court refuses to set a bond or refuses to accept an otherwise proper bond, the party seeking stay should immediately petition the appellate court under Rule 305(d), and if no relief is afforded, file a Rule 381 action for mandamus with the Illinois Supreme Court. See Brown v.
Scotillo, 104 Ill. 2d 54, 470 N.E.2d 504 (1984). The approval of a “manifestly reasonable bond is a ministerial act.”
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I. Steps to Obtain the Appeal Bond and Subsequently the Stay of Enforcement
Due to the time-consuming steps associated with demonstrating an ability to pay, obtaining the appeal bond should be explored long before entry of judgment.
(1) If the defendant’s financial condition allows, consider posting “other form of security” such as CDs, cash in escrow, or a letter of credit.
(2)
(3)
If option (1) is not available or desirable, determine whether an insurance policy is available for tender and whether the policy limits are sufficient to cover the bond.
If the policy cannot be tendered in lieu of a bond or if the policy does not have large
(4) enough limits, consider an appeal bond backed by a surety or a supplemental bond.
If a surety is cannot be obtained, consider posting “other form of security” such as CDs, escrow, or a letter of credit.
CONSIDERATIONS: Although a corporate entity might have sufficient cash reserves available to fully fund an escrow account, other considerations, such as the available interest rate on the monies, might dictate that the cash be allowed to sit and a bond be procured.
Once the decision to procure a bond is made, the appellant should immediately contact a surety company to commence the bond process. The surety will require your client to submit a formal application and some form of financial report indicating a present ability to pay. The surety is in the unique situation of guaranteeing that the defendant, who now has a judgment against it, will in fact pay that judgment. If the appeal is lost and the judgment is not in any way modified, the plaintiff will look immediately to the surety in the event the defendant refuses or is unable to pay the judgment. Although the defendant has contractually agreed to reimburse and indemnify the surety for any payments on the bond, that may be an irrelevant document if the defendant has no money.
In order to protect themselves from having to pay, a surety will require submission of financial documents showing that the defendant has the ability to pay. In some cases, this might require the defendant to post collateral or to provide a guaranteed/irrevocable letter of credit from a bank.
A surety bond typically costs a minimum of $20 per $1,000 of bond, and this amount will increase in conjunction with the risk assumed. Thus, a $125,000 bond would cost the defendant a minimum of
$2,500 annually. In Illinois, the cost of the bond is not considered an expense of the appeal recoverable in the event that the appellant prevails.
An appellant may obtain an extension of time for the filing and approval of the bond or other form of security if the appellant, within the time for filing the notice of appeal or within any extension granted pursuant to Rule 305(c), files a motion for extension. Extensions of time are granted by either the circuit or appellate court, but extensions granted by the circuit court may not aggregate more than 45 days unless the parties stipulate otherwise. A motion for extension filed with the appellate court must be supported by affidavit of counsel and accompanied by a Rule 328 supporting record if the record on appeal has yet to be filed. Rule 305(c).
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J. Bond Defects
An appellant has the right to attack the sufficiency or form of the bond tendered. Harrison v. Kamp, 403
Ill. 542, 546, 87 N.E.2d 631 (1949). An appellee may waive its right to object to a defective appeal bond.
However, if an objection to the bond is raised, the party proffering the bond must be given a reasonable opportunity to file a new bond or otherwise cure the defect. Signature Loan Corp. v. Walker, 28 Ill. App
2d 426, 428, 171 N.E.2d 681 (4 th Dist. 1961). An objection to a defect in an appeal bond or to the granting of a stay without an appeal bond is waived, however, if not raised when the bond is presented.
Sherwood v. Illinois Trust & Sav. Bank, 195 Ill. 112, 62 N.E. 835 (1902); see also Swafford v.
Rosenbloom, 189 Ill. 392, 59 N.E. 790 (1901).
K. Dismissal of the Appeal for Reasons other than Disposition
The obligations of an appeal bond – the obligation to pay the award – may become enforceable upon dismissal of the appeal for reasons other than a disposition on the merits. Thus, if the appeal is voluntarily dismissed or if the appellate court dismisses the appeal for want of prosecution, the appeal bond’s terms are breached and collection on the bond is possible. Glover v. Glover, 24 Ill. App. 3d 73,
76-77, 320 N.E.2d 513 (1 st Dist. 1974).
V. Stays in Other Areas of the Law
A. Non-Final Orders/Petitions for Rehearing/Petitions for Leave to Appeal
1. Stays during Permissive Interlocutory Appeals
A stay of proceedings is automatic under Rule 306 if the appellate court accepts the petition for leave to appeal. However, proceedings in the trial court must be stayed if an interlocutory appeal is sought under and granted under Rule 308 or if a notice of interlocutory appeal is filed under Rule 307(a) or (d).
2. Stays during the pendency of a Rule 315(a) Petition
Issuance of mandate (Rule 368) is automatically stayed where a party files for review with the Illinois
Supreme Court and the filing occurs prior to the issuance of mandate. If mandate has been issued, then the petitioner must seek a stay of mandate. Pros Corp. Mgmt Servs., Inc. v. Ashley S. Rose, Ltd, 228 Ill.
App. 3d 573, 579, 592 N.E.2d 609 (2 nd Dist. 1992).
3. Stays Pending Petition for Writ of Certiorari
Rule 368(c) gives the Appellate or Supreme Court the discretion to stay or recall mandate where a party has filed for review before the United States Supreme Court.
B. Automatic Stays Following Termination of Parental Rights
No bond is required when appealing an order terminating parental rights. According to Illinois Supreme
Court Rule 305(e), a judgment is automatically stayed after the entry of a judgment terminating parental rights under the Juvenile Court Act of 1987. The rule provides for an automatic 60-day stay once a judgment is entered. If an appeal is filed, the stay will not expire until the appeal is complete or the stay
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is lifted by the reviewing court.” Ill. Sup. Ct. R. 305(e)(1). If an appeal is not filed within the 60-day stay, the stay expires.
This automatic stay halts the termination order to the extent that it would allow the entry of an adoption order without the parent’s consent or surrender. Further, it stays the power of any person or agency to consent to an adoption during this time. Il. Sup. Ct. R. 305(e)(2). This section was enacted in response to an Illinois Supreme Court case where a mother appealed an order terminating her parental rights. The mother failed to obtain a stay in proceedings, and the public guardian consented to the adoption of the children. The Illinois Supreme Court held that the completed adoption made the mother’s appeal moot. See In re Tekela, 202 Ill. 2d 282, 780 N.E.2d 304 (2002).
The automatic stay does not affect any other aspects of the termination order. The automatic stay and/or appeal does not affect the trial court’s continuing jurisdiction over the care, custody, visitation and support of the child. During the stay, the guardian is allowed to take any other authorized action and make any decision except consenting to the child’s adoption.
Any party to the Juvenile Court Act proceeding or a party to an adoption proceeding delayed by the automatic stay, may file a motion with the reviewing court to lift the stay. If it is clearly in the best interest of the child, the court will lift the stay. The court is also able to lift the stay sua sponte. There are specific content requirements when a party moves to lift a stay, which are outlined in Illinois Supreme
Court Rule 305(e)(B)-(D). Sup. Ct. R. 305(e)(4)(A).
C. Workers’ Compensation Judicial Appeals
In the workers’ compensation setting, a party against whom an award has been rendered must file an appeal bond to appeal from the Commission’s ruling to the circuit court. 820 ILCS 305/19(f)(2). The amount of the bond is set by the Commission in its decision, and is typically set at $100 over the unpaid amount of the award, with a maximum of $75,000. 50 Ill. Admin. Code 7060.10(b). No bond is required of a municipal entity. 820 ILCS 305/19(f)(2).
The appeal bond must be signed by the employer as the party against whom the award was rendered and a surety for the bond must be provided. The bond must be conditioned such that if the employer does not successfully prosecute the review, “he will pay the award and the costs of the proceedings in the courts.” The employer’s signatory must have the authority to financially bind the employer. Thus, the attorney representing the employer in the workers’ compensation case cannot sign the bond for the employer unless that attorney has authorization (a signed affidavit) from an individual who has the authority to financially bind the employer, to sign on his behalf. Deichmueller Const. Co. v. Industrial
Comm’n, 151 Ill. 2d 413, 603 N.E.2d 516 (1992). That authority must have been given within the 20-day window for filing the surety bond. Berryman Equipment v. Industrial Comm’n, 276 Ill. App. 3d 76, 78-79,
657 N.E.2d 1039 (2 nd Dist. 1995).
By statute, the surety must be approved by the circuit court. “The acceptance of the bond by the clerk of the court shall constitute evidence of his approval of the bond.” The surety must also be one approved by the State of Illinois to issue surety bonds in Illinois. Authority can be confirmed with the Illinois
Department of Financial and Professional Regulation, Division of Insurance. A written copy of the approved insurance sureties, entitled Summary of Annual Statements, is available but is typically a year
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behind. The appropriate lines of authority are listed in Section 4 of the Illinois Insurance Code (215 ILCS
5/4), as Class 2, Casualty, Fidelity, and Surety, Clause (g) Fidelity and Surety.
Some counties, such as DuPage County and Cook County, have very specific surety requirements, which should be consulted long before you attempt to obtain your surety bond. In both counties, not only must the surety company be listed as an approved surety, but the agent or attorney-in-fact signing the bond as surety must also be approved by the county. In Lake County, the surety must simply be on the county’s approved list. As mentioned with civil appeal bonds, you should consult the Cook County Civil
Surety Book.
As a final note, once the appeal has ended and the award paid (or the case is settled and you are seeking dismissal), you should move before the circuit court to have the appeal bond released. Moorhead
Machinery/Westinghouse v. Industrial Comm’n, 263 Ill. App. 3d 936, 636 N.E.2d 965 (4 th Dist. 1994).
Upon receiving this order, the surety will refund any portion of the premium left for the policy period.
Moreover, the bond cannot be the subject of any future litigation.
Significant Appellate Decisions Concerning Appeal Workers’ Compensation Bonds

Residential Carpentry, Inc. v. Kennedy, 377 Ill. App. 3d 499, 879 N.E.2d 439 (1 st Dist. 2007).

Unilever Best Foods North America v. Workers Compensation Comm'n, 374 Ill. App. 3d 314, 870
N.E.2d 1000 (1 st Dist. 2007).

Morton's of Chicago v. Industrial Comm'n, 366 Ill. App. 3d 1056, 853 N.E.2d 40 (1 st Dist. 2006).

Freedom Graphic Systems, Inc. v. Industrial Comm'n, 345 Ill. App. 3d 716, 802 N.E.2d 1262 (1 st
Dist. 2003).

Bracy v. Industrial Comm'n, 338 Ill. App. 3d 285, 788 N.E.2d 737 (3 rd Dist. 2003).

Wal-Mart Stores, Inc. v. Industrial Comm'n, 326 Ill. App. 3d 438, 761 N.E.2d 768 (4 th Dist. 2001).

Kavonius v. Industrial Comm'n, 314 Ill. App. 3d 166, 731 N.E.2d 1287 (2 nd Dist. 2000).

First Chicago v. Industrial Comm'n, 294 Ill. App. 3d 685, 691 N.E.2d 134 (1 st Dist. 1998).

Lasley Const. Co., Inc. v. Industrial Comm'n, 274 Ill. App. 3d 890, 655 N.E.2d 5 (5 th Dist. 1995).

Berryman Equipment v. Industrial Comm'n, 276 Ill. App. 3d 76, 657 N.E.2d 1039 (2 nd Dist. 1995).

Deichmueller Const. Co. v. Industrial Comm'n, 151 Ill. 2d 413, 603 N.E.2d 516 (1992).

Lee v. Industrial Comm’n, 82 Ill.2d 496, 413 N.E.2d 425 (1980).
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Federal Court Stays
I. Introduction
The procedure for handling stays of enforcement and execution in federal cases is controlled by Federal
Rules of Civil Procedure 62 and Federal Rules for Appellate Procedure 8. Under the federal rules, most cases are given an automatic ten-day stay, which excludes weekends and holidays, upon the entry of a judgment. In cases involving monetary judgments, the losing party (judgment debtor) has a right to file a supersedeas bond to stay the proceedings longer than the ten-day automatic stay. By filing a bond, the judgment debtor can stay the execution of the judgment until the case can be heard on the merits on appeal. If the judgment debtor decides to forgo a supersedeas bond, the judgment debtor can either post an alternative form of security or ask the judge to use his or her discretion and issue a stay.
The ten-day automatic stay does not apply to cases involving injunctions, receiverships, and patent accountings. In those types of cases, a party may obtain a stay only upon the discretion of the court.
It is important to know that if the parties file any post-trial motions, the automatic preliminary stay is not extended. The judgment debtor must consider whether any post-trial motions will create a lapse in the stay that would allow the judgment creditor to start enforcing the judgment. It is possible for the judgment debtor to obtain a stay while post-trial motions are pending and before filing an appeal.
Federal law does not require a judgment debtor to file a supersedeas bond in order to proceed with the filing of an appeal. In fact, a judgment debtor may still obtain a stay without posting a bond, but it is up to the discretion of the court. The purpose of posting a supersedeas bond is to protect the prevailing party (judgment creditor) from the inevitable delay in collection caused by the appeal. There are many considerations an attorney must make in deciding whether to file a supersedeas bond during an appeal.
Another alternative to filing a supersedeas bond is filing an alternative form of security to obtain a stay.
There are many tactical reasons a judgment debtor must consider when deciding how to proceed with a stay during an appeal.
II. Automatic Preliminary Stay
Unlike Illinois law, the federal rules provide for a temporary automatic stay of execution or enforcement of a judgment in cases involving monetary judgments. According to Rule 62(a), no action for execution or enforcement of a judgment can be taken until the expiration of ten days after its entry (excluding weekends and holidays). Fed. R. Civ. P. 62(a). Automatic stays are granted in most cases, except cases involving injunctions, receiverships, and patent accountings.
III. Post-Trial Motions as an Interim Stay of Enforcement and Execution
The length of the automatic ten-day stay is long enough to ensure that post-judgment motions are filed before the judgment creditor can move to enforce and execute the judgment. Most post-trial motions must be filed within 10 days of the entry of the order. See Fed. R. Civ. P. 50, 52, 59. In most cases, the automatic stay is limited to ten days and does not automatically extend when post-trial motions are filed.
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These common post-trial motions are not automatically extended:
· A motion for judgment as a matter of law under Rule 50;
· A motion to amend the findings or for additional findings under Rule 52;
·
·
A motion for a new trial or to alter or amend a judgment under Rule 59; and
A motion for relief from a judgment or order under Rule 60.
Fed. R. Civ. P. 62(b).
Thus, when filing a post-trial motion in federal court, the judgment debtor must request a stay of enforcement in order to prevent the judgment creditor from moving to enforce the judgment after the automatic stay has lapsed. During post-judgment motions, trial judges may grant a temporary stay in exchange for sufficient security from the judgment debtor. Fed. R. Civ. P. 62(b). If the court requires additional security to stay the proceedings during this time, the judgment debtor can usually use any form of security that is accepted to obtain a stay during an appeal. Another alternative to providing security for the temporary stay, is asking the judgment creditor to stipulate to a stay while post-trial motions are pending.
IV. Motions for Stay of Enforcement and Execution of Judgment
A. Stays of Money Judgments
Filing a notice of appeal with the district court will not automatically stay enforcement and execution of the judgment. In order to obtain a stay as a matter of right, the judgment debtor may post a supersedeas bond or another form of suitable security. Fed. R. Civ. P. 62(d). The motion to stay must be made in the district court rather than the court of appeals. Fed. R. App. P. 8(a). In order to bypass the district court and file directly in the court of appeals, the judgment debtor must show that filing in the district court would be impracticable or show that the district court refused to grant the relief requested. Fed R. App. P. 8(a)(2).
If the party does not post a bond, the judge has the discretion to deny a stay. Olympia Equipment
Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 796 (7th Cir. 1986). The purpose of the bond is to preserve the status quo. It is not to punish the judgment debtor, nor make it easier for the judgment creditor to collect the judgment. Proceeding without a bond or other security places the judgment debtor at the mercy of the court. If a judgment debtor cannot provide any security, the court will usually refuse to grant a completely unsecured stay.
The federal court does not require a bond or other security in certain cases because it can be inappropriate. Two examples are: (1) when the judgment debtor’s ability to pay is plainly apparent, thus the cost of a bond is a waste of money, and; (2) when the requirement of obtaining a bond would put the judgment debtor’s creditors in undue jeopardy. The court has recognized that a judgment debtor in either of these situations is a candidate for alternative security, as recognized in Poplar Grove Planting
& Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5 th Cir. 1979).
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If the judgment debtor posts a bond, the bond can be presented before or after filing a notice of appeal, or it can be presented after obtaining the order granting the appeal. Fed. R. Civ. P. 62(d). Regardless of when it is filed, the stay takes effect when the court approves the bond. Fed. R. Civ. P. 62(d). Since the stay does not take effect until the Court formally approves the bond, judgment debtors must ensure that this step is completed. If there is a lapse in the stay, the judgment creditor can move to enforce the bond.
The specific rules addressing the correct procedure for filing an appeal are found in Fed. R. App. P. 3-12.
B. Stays in Cases Involving Injunctions, Receiverships & Patent Accountings
As noted earlier, the automatic ten-day stay after the entry of a judgment does not apply to cases dealing with injunctions, receiverships, and orders directing an accounting in patent infringement cases even if an appeal is filed. Fed. R. Civ. P. 62(a)(1-2). Stays in equity cases are discretionary. At least one court has noted that in equitable relief cases granting stays interrupt the ordinary process of judicial review and postpones relief for the prevailing party at trial. Thus in equitable cases, stays are sparingly granted. U.S. v. State of Texas, 523 F.Supp 703 (E.D. Tex. 1981). If the court refuses to grant the stay, the judgment creditor can immediately take action to enforce the judgment.
In cases involving an injunction, there are specific considerations, which must be followed to obtain a stay. For cases where the decision was rendered by a statutory three-judge district court, the order must be made by the court sitting in open session or by the assent of all its judges, as evidenced by their signatures. While an appeal is pending, the court has the discretion to suspend, modify, restore or grant an injunction in exchange for a bond that secures the opposing party’s rights. Fed. R. Civ. P. 62(c). The purpose of allowing or modifying an injunction is preservation of the status quo until the court of appeals can act on the order granting or denying the injunction. Klaus v. Hi-Shear Corp., 528 F.2d 225
(9th Cir. 1975).
When deciding whether to grant a stay in an equitable case, the court usually considers the following factors: 1) whether the judgment debtor made a strong showing of succeeding on appeal, 2) whether the judgment creditor will be substantially injured if the stay is granted, 3) whether the judgment debtor will be irreparably injured if the stay is denied, and 4) where the public interest lies. Cavel Intern. Inc. v.
Madigan, 500 F.3d 551 (7th Cir. 2007).
C. Failure to Post Security
Due to the fact that most federal judgments are enforceable within ten business days after entry, a judgment debtor must consider whether it needs to stay the enforcement and execution of the judgment during appeal. If a judgment debtor decided to forgo a supersedeas bond, the execution of the judgment does not affect the appeal. Fed. R. App. P. 3(a)(2). While the judgment debtor can file an appeal without posting security, doing so allows the judgment creditor to proceed with enforcement and execution of the judgment. Posting a supersedeas bond or other security will prevent the loss of assets, which can occur if the judgment debtor pays the judgment before the appellate court can review the case on its merits. However, when the judgment debtor fails to file a supersedeas bond, the district court has discretion in determining whether to grant a stay of enforcement or execution on appeal.
Marcoux v. Farm Service and Supplies, Inc., 290 F. Supp. 2d 457 (S.D.N.Y. 2003).
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D. State Supersedeas Protections in Federal Court Where Lien Concerns Property
Rule 62(f) states that if the judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. Fed. R. Civ. P. 62(f).
Section 12-502 of the Illinois Code of Civil Procedure provides that, once the plaintiff files a certified copy of the judgment in the office of the recorder in any county of this State, the judgment operates as a lien on the judgment debtor. 735 ILCS 5/12-502.
In cases where the judgment results in a lien on the judgment debtor’s property, the Federal Courts have applied Illinois law and granted a stay of execution while waiving the bonding requirements. See
Horina v. City of Granite City, IL., 2007 WL 4068123 (S.D. Ill. 2007) (unpublished); Smith v. Village of
Maywood, 1991 WL 277629 (N.D. Ill. 1991) (unpublished); Spellman v. Aetna Plywood, Inc., 1992 WL
80528 (N.D. Ill. 1992) (unpublished). If a party wishes to have the bond waived, the burden is on the judgment debtor to objectively demonstrate reasons to depart from the requirement that the party post a full supersedeas bond. Spellman, 1992 WL 80528 at *1 (N.D. Ill. 1992) (unpublished).
In addition, pursuant to Illinois Supreme Court Rule 305, a municipality is entitled to a stay without requiring the posting of a bond. See Ill. Sup. Ct. R. 305.
It is clear from the Illinois cases addressing state supersedeas protection in Federal Court that the application of rule 67(f) is not automatic, thus a judgment debtor should file a motion invoking local laws in order to obtain the additional protections of state law. See Horina v. City of Granite City, IL.,
F.Supp.2d, 2007 WL 4068123 (S.D. Ill. 2007) (unpublished); Smith v. Village of Maywood, 1991 WL
277629 (N.D. Ill. Dec. 18, 1991) (unpublished); Spellman v. Aetna Plywood, Inc., 1992 WL 80528 (N.D. Ill.
1992)
V. Supersedeas Bonds and Sureties
A. The Supersedeas Bond
Although there are many forms of security, the most common is a supersedeas bond. As in Illinois, the purpose of a supersedeas bond is to maintain the status quo of the parties if the judgment is challenged on appeal. The bond compensates the judgment creditor for delays in satisfying its judgment and protects against the risk that the judgment might otherwise be uncollectible. Edwards v. Armstrong
World Indus., Inc., 6 F.3d 312, 315 (5 th Cir. 1993).
1. Determining the Amount of the Bond
It is important to note that each district court has different requirements for what should be included in the calculation of the bond. Most often, district courts require that the bond be for the full amount of the judgment, plus any prejudgment interest, attorneys’ fees, and costs, plus one or two years of post judgment interest.
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The Northern District of Illinois requires a supersedeas bond to include the full amount of the judgment with costs, interests and damages for delay. When the bond is for a sum of money only, the bond must cover the full amount of the judgment plus one year’s interest at the rate identified in 28 U.S.C. § 1961, plus $500 to cover costs. N.D. Ill. R. 62.1. Furthermore, the Northern District requires every bond or form of security to be secured by one of the following:
(1) Cash in the amount of the bond, or
(2) The guaranty of a corporate surety holding a certificate of Authority from the Secretary of the Treasury, or
(3) The guaranty of two individual residents from the Northern District, provided that each individual also file an affidavit of justification listing specific information; or
(4) An unconditional letter of credit.
N.D. Ill. R. 65.1
In the Northern District, the clerk may approve bonds without order of the court if the bond amount was fixed by the judge, court rule, statute, or if it complies with rule 65.1. N.D. Ill. R. 65.2. For additional information, please see N.D. Ill. R. 62.1-65.1.1. The Central District and Southern District of Illinois do not have local rules addressing bonding requirements.
If the district court agrees to accept a bond for less than the full value of the judgment, the judgment creditor can ask the court of appeals to require the posting for the full judgment. Olympia Equipment
Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794 (7 th Cir. 1986). If the district court refuses to grant the stay unless the judgment debtor provided a bond in the full amount of the judgment, the judgment debtor can file an appeal with the court of appeals. This action is permitted under Federal
Rules of Appellate Procedure 8 and the All Writs Act, 28 U.S.C. 1651(a). Both scenarios are reviewed at the abuse of discretion standard, thus the decision will not be overturned unless the court of appeals determines the district court acted unreasonably. Dillon v. City of Chicago, 866 F.2d 902, 904 (7 th Cir.
1988).
2. Things to Consider Before Posting a Bond
While the judgment creditor cannot execute on the judgment once the court approves the bond, the presence of the bond makes it much easier for the judgment credit to collect if the judgment is later affirmed on appeal. The bond provides the judgment creditor with a second party who is obligated to pay the judgment. Thus, in some cases it is not best to post a bond.
A judgment debtor should consider many factors in deciding whether to obtain a bond to stay the enforcement of the judgment.

How difficult would it be to recover the judgment from the judgment creditor once it is executed? Even if the judgment debtor has the right to recover the judgment following a successful appeal, it does not mean that he or she will actually be able to recover the now wrongly paid judgment.

How much will the bond cost? A bond includes not only the full amount of the judgment, but also the interest and the expense of having the bond issued.
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
Would the judgment creditor have any success in executing the judgment if no bond is in place? If a judgment debtor does not have readily accessible assets to satisfy the judgment, a bond could actually make it easier for the judgment creditor to collect if the district court’s decision is upheld on appeal.
B. Sureties
Sureties are often insurance companies or divisions of insurance companies. Sections 31 U.S.C. §§ 9301-
9309 address the federal standards governing sureties. In order to become a surety, a surety corporation must file with the Secretary of the Treasury a copy of the corporation’s article of incorporation and a statement of the assets and liabilities that is signed and sworn to by the president and secretary of the corporation. 31 U.S.C. § 9305. The application will be approved if the Secretary of the Treasury determines that the company’s articles guarantee the fidelity of persons holding positions of trust and allow the company to issue bonds and undertakings in judicial proceedings. 31 U.S.C. §
9304(a)(2). Furthermore, the Secretary of the Treasury must determine if the corporation has paid-up capital of at least $250,000 in cash and the corporation must be able to carry out its contracts. 31 U.S.C.
§ 9305.
Once approved, a surety company must file a statement of assets and liabilities signed and sworn by the president and secretary of the corporation each January, April, July and October. If the Secretary of the
Treasury determines that the corporation is insolvent or in violation of § 9304 or § 9306, the corporations authority shall be revoked. 31 U.S.C. § 9305(d). The Secretary can also investigate any insolvency at any time. If the Secretary determines that the corporation does not have sufficient security, the judgment debtor may be required to provide additional security.
A surety corporation will not be able to provide any additional bond under section 9304 if the corporation fails to pay a final judgment or order against it on the bond if no appeal or stay of judgment is pending 30 days after the judgment is entered. 31 U.S.C. § 9305(e).
A surety corporation may provide a bond in a judicial district outside the state where it is incorporated, but only if the corporation has a registered agent for service in that district. 31 U.S.C. § 9306(a). For additional requirements of sureties, it is important to review these statutes to ensure that your surety is qualified. A list of “approved” sureties that can be accessed at: http://www.fms.treas.gov/c570/c570.html
One issue that is extremely critical in today’s financial market is considering the ability or willingness of the surety to fulfill the bond. Even if the surety appears on the approved list, if the court doubts the surety’s ability or willingness to pay, the bond can be denied. American Druggists Ins. Co. v. Bogart, 707
F.2d 1229, 1233 (11 th Cir. 1983).
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C. Other Forms of Security
There are other recognized forms of security that can be used to stay enforcement or execution of a judgment. As discussed above, sometimes it is not financially advantageous for a judgment debtor to file a supersedeas bond. The federal court has recognized some alternative forms of security, such as placing cash in the amount of the judgment into an escrow or court-controlled, interest bearing account.
Other alternatives are letters of credit, shares of stock, certificates of deposit, treasury notes and other less liquid forms of security. As a general rule, the use of conventional liquid assets will increase the likelihood that the court will accept those assets as security for the judgment.
D. Appeals by the United States, Its Officers, or Its Agencies
No appeal bond, obligation, or other form of security is required when the judgment debtor is the
United States, its officers, its agencies, or for appeals directed by a department of the federal government.
VII. Sample Forms and Attachments
A. Appeal Bond
B.
C.
D.
Motion to Stay Enforcement and Execution of Judgment
Motion to Approve Appeal Bond
Workers’ Compensation Surety Bond
E.
F.
Surety Rules - Illinois Circuit Courts
Rule 305
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Sources on Appeal Bonds and Stays
Supreme Court Rule 305. 210 Ill. 2d R. 305, amended June 15, 2004; effective July 1, 2004.
Federal Rule of Civil Procedure 62.
Articles
Dowd, Lynn D., Post-Judgment Security and Appeal Bonds: A Need for Consistency and Fairness, 82 Ill.
B.J. 660 (December 1994).
Quinn, Carolyn, Appeal Bonds and Illinois Supreme Court Rule 305, 90 Ill. B.J. 199 (April 2002).
Books
Fegan, Thomas H., Illinois Appellate Practice Manual (Lawyers’ Cooperative Pub. 2005).
Illinois Civil Appellate Practice: State and Federal, Chapter 12: Stays Pending Appeal (IICLE 2008).
Kionka, Edward J., Appeals to the Illinois Supreme and Appellate Court (IICLE 1994 ed).
Townsend, Roger D., Superseding and Staying Judgments: A National Compendium (ABA, June 2007).
See chapter 1, Federal Courts (Marcy Hogan Greer), and chapter 16, Illinois (Hugh C. Griffin).
* * *
Brad A. Elward is a partner at Heyl, Royster, Voelker & Allen, in Peoria, Illinois, where he concentrates in appellate practice, with a sub-concentration in workers’ compensation appeals. He is a current (and past) Director of the Illinois Appellate Lawyers’ Association and speaks regularly on appellate topics. He also authors a column on appellate practice for the Illinois Association of Defense Counsel Quarterly publication.
Stacie K. Linder has been an associate at Heyl, Royster, Voelker & Allen, in Peoria since August 2006. She attended Drake Law School where she was a Note Editor for the Drake Journal of Agricultural Law. She concentrates in workers’ compensation practice.
Special thanks to Sandra Dunbar, Firm Librarian at Heyl, Royster, Voelker & Allen, Peoria.
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