Smith v. Import Birds, Inc.

UPON MOTION TO REVIEW AND MODIFY ORDER ON STAY

PER CURIAM.

Kevin Smith appealed a trial court order which denied his motions to quash service of process and vacate default. Smith sought a stay pending review. It was granted upon condition that Smith post a bond in the sum of $25,000. All of this is pre-trial and pre-judgment. Smith suggests that the bond amount is excessive and amounts to an abuse of discretion. We agree.

Florida Rules of Appellate Procedure 9.310(a) and (c)(2) apply. They provide:

(a) Application. Except as provided by general law and in section (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 upon the posting of a good and sufficient bond, other conditions, or both.

(c) Bond.

(2) Conditions. The conditions of a bond shall include a condition to pay or comply with the order in full, including costs, interest, fees, damages for delay, use, detention and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may Re required by the lower tribunal.

The basic suit brought against Smith by Import Birds, Inc. was for damages in excess of $5,000. It may be gleaned from the complaint that the claim substantially exceeded $5,000. Import Birds, Inc., argues to us, as we understand it, that the bond must have a relationship to the damages claimed in the main action. We disagree because if that were so, a plaintiff could merely claim some ridiculously large sum to the end that his adversary could never afford to obtain a stay bond in case he wished to file a non-final appeal. The controlling criteria here is found in Fla.R.App.P. 9.310(c)(2).

In our opinion a bond in the sum of $5,000 would be appropriate and adequate to secure the conditions of the bond.

The motion is granted and the case is remanded with respectful instructions to modify the order granting motion for stay pending review and setting bond so as to provide for a bond in the sum of $5,000.

Motion granted.

HURLEY, WALDEN and BARKETT, JJ., concur.