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Home / Commentary / Blogs / BRIEFS FOR THE BRIEF WRITER: Don’t forget about a judgment while you appeal it

BRIEFS FOR THE BRIEF WRITER: Don’t forget about a judgment while you appeal it

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

Your client just got socked with a big money judgment.

The client is livid. You’re disappointed, but not devastated.

You know in your bones that the trial court committed legal error, and you’re confident the Court of Appeals will reverse the judgment.

Your client is chafing to appeal, as are you. So you pull out your appeal checklist and get to work.

Notice of appeal? You file it early. Way early. No late appeal nightmares for you. You even remember to attach the decision and judgment to your docketing statement, without being reminded to do so by your assistant.

Transcripts ordered and statements on transcript filed? Done. Record reviewed? You bet. Your list of needed record items is finished. You’ve even got an outline of your brief and appendix.

Your appeal is safe. You stretch and take a long, long breath. Then the phone rings.

The judgment creditor has garnished your client’s accounts. The client has been served with an execution and supplementary exam notice.

“How can they do this?” he wails. “We’re appealing!”

You slap your forehead with the palm of your hand. While you were setting up your appeal, you forgot to stay the judgment.

A Wisconsin state court money judgment is generally not automatically stayed pending appeal, Wis. Stats. Sec. 808.07(1). To obtain a stay, you have to move the court under Sec. 808.07. Where only a money judgment is involved, the following factors (and others as relevant) apply:

(1) the appeal issues and the likelihood of success on appeal;
(2) the need to ensure the collectability of the judgment if your client loses the appeal;
(3) whether your client, if successful, will be able to recover;
(4) the harm to the judgment creditor if your client loses the appeal and the payment of the judgment is so delayed; and
(5) if applicable, the public interest. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, 237 Wis.2d 498, 614 N.W.2d 565, discussed in Weber v. White, 2004 WI 63, 272 Wis.2d 121, 681 N.W.2d 137.

Resolution of a stay motion is discretionary. Weber, 2004 WI 63, Par. 34, 272 Wis.2d at 144. If the court is amenable to a stay, you will likely have to obtain a bond or undertaking, unless you can show how the judgment creditor is otherwise protected.

Note that the court has discretion to deny your motion even if your client is willing to file a full bond, Scullion, 2004 WI 63, Par. 17, 237 Wis.2d at 512-513.

Your motion should be made to the trial court, unless your case is the rare one where it is impractical to seek relief there, in which case you can bring your motion in the Court of Appeals, Sec. 809.12, Wis. Stats.

If the trial court denies your motion, you can move in the Court of Appeals, but your chance of success will be small, since the Court of Appeals will review the trial court’s decision under an abuse of discretion standard. See Scullion, 2000 WI App 120, Par. 17, 237 Wis.2d at 512-513.

Include both the trial court’s reasons for denying your motion and why they constitute the erroneous exercise of discretion.

See Sec. 806.08 for provisions regarding injunction/receivership judgments.

In the federal system? Federal Rule of Civil Procedure 62 applies, giving your client more breathing room. Rule 62 stays a money judgment for 14-days from its entry. After that, you should be able to obtain a stay by having the court approve your client’s bond. Rule 62(d). Again, proceed first to the district court.
See Federal Rule of Appellate Procedure 8(a), Seventh Circuit Rule 8.

Federal injunctions, receiverships and accountings are subject to their own provisions. See Federal Rule of Civil Procedure 62.

Bankruptcy Rule 7062 follows Federal Rule 62 in bankruptcy adversary proceedings. Again, start with the bankruptcy court (the trial/district court equivalent).

So, what’s the lesson? Add obtaining a stay to the top of your appeal checklist.

Diane Slomowitz is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients.

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