Rule 8. STAY OR INJUNCTION PENDING APPEAL

(a) Stay by Clerk's Approval of Supersedeas Bond. The appellant shall be entitled

to a stay of execution of a money judgment pending appeal if the appellant gives a

supersedeas bond, payable to the opposite party, with two or more sufficient resident sureties,

or one or more guaranty or surety companies authorized to do business in this state, in a

penalty of 125 percent of the amount of the judgment appealed from, conditioned that the

appellant will satisfy the judgment complained of and also such final judgment as may be

made in the case. The clerk of the trial court shall approve any such bond and the approval

of the supersedeas bond by the clerk shall constitute a stay of the judgment. In the event the

clerk declines to approve the bond, or the clerk's approval is contested, or the appellant seeks

a stay on any basis other than compliance with this subdivision, the requirements of Rule 8(b)

apply.

(b) Other Stays Must Ordinarily Be Sought in the First Instance From the Trial

Court.

(1) Application for a stay of the judgment or the order of a trial court pending appeal

or for approval or disapproval of a contested supersedeas bond or for an order suspending,

modifying, restoring, or granting an injunction during the pendency of an appeal must

ordinarily be made in the first instance to the trial court. The court shall require the giving

of security by the appellant in such form and in such sum as the court deems proper, and for

good cause shown may set a supersedeas bond in an amount less than the 125 percent

required in cases under Rule 8(a).

(2) However, a bond or equivalent security required on any money judgment entered

in whole or in part on account of punitive damages shall, as to the punitive damages portion

of the judgment only, be the lower of:

(a) 125 percent of the total amount of punitive damages, or

and for

good cause shown may set a supersedeas bond in an amount less than the 125 percent

required in cases under Rule 8(a).

(2) However, a bond or equivalent security required on any money judgment entered

in whole or in part on account of punitive damages shall, as to the punitive damages portion

of the judgment only, be the lower of:

(a) 125 percent of the total amount of punitive damages, or

(b) ten percent of the net worth of the defendant seeking appeal as

determined by applying generally accepted accounting principles to the

defendant's financial status as of December 31, of the year prior to the entry

of the judgment for punitive damages.

(c) Absent unusual circumstances, the total amount of the required bond or

equivalent security for any case as to punitive damages shall not exceed $100,000,000.

(3) To qualify for reduction of bond or equivalent security under subpart (b)(2)(b),

there must be a good and sufficient showing that the imposition of a supersedeas bond of

125% of the full judgment appealed from would place that appellant in a condition of

insolvency or would otherwise substantially threaten its future financial viability.

(4) When the appellant is allowed the benefit of a reduction in bond or equivalent

security under subpart (b)(2)(b) or (c), the court may require submission of such reports or

evidence to the court and to opposing parties as will allow them to be properly informed of

the financial condition of the appellant during the period of supersedeas. If at any time after

notice and hearing, the court finds that an appellant who has posted a bond or equivalent

security for less than 125 percent of the full amount of the judgment has taken actions that

affect the financial ability of the appellant to respond to the judgment, or has taken other

actions with the intent to avoid the judgment, the court shall increase the bond or equivalent

security to the full 125 percent of the judgment

the court finds that an appellant who has posted a bond or equivalent

security for less than 125 percent of the full amount of the judgment has taken actions that

affect the financial ability of the appellant to respond to the judgment, or has taken other

actions with the intent to avoid the judgment, the court shall increase the bond or equivalent

security to the full 125 percent of the judgment. If the appellant does not post the additional

bond required by the court, the stay shall be revoked.

(5) If a hearing is necessary for issues arising under subpart (b), the judgment shall

be stayed during such hearing and for ten days following the trial court's ruling. The ruling

of the trial court on motions filed under this subpart (b) shall be reviewable by the Supreme

Court or the Court of Appeals.

(c) Motion to Stay or Vacate Stay in Supreme Court. A motion for such relief

may be made to the Supreme Court (or to the Court of Appeals in cases assigned by the

Supreme Court to the Court of Appeals) but the motion shall show that the application to the

trial court for relief sought is not practicable, or that the trial court has denied an application

or has failed to afford the relief which the applicant has requested, with the reasons given by

the trial court for its action. The motion shall also show the reasons for the relief requested

and the facts relied upon and, if the facts are subject to dispute, the motion shall be supported

by affidavits or other sworn statements. The applicant shall file an original and four (4)

copies of the motion for stay and, if the motion is opposed, shall attach legible copies of the

documents listed below. If the applicant asserts that time does not permit the filing of a

written motion, applicant shall deliver to the clerk five (5) legible copies of each of the listed

documents as soon as possible. If any listed document cannot be attached or delivered, a

statement of the reason for the omission shall be substituted.

The documents required are:

attach legible copies of the

documents listed below. If the applicant asserts that time does not permit the filing of a

written motion, applicant shall deliver to the clerk five (5) legible copies of each of the listed

documents as soon as possible. If any listed document cannot be attached or delivered, a

statement of the reason for the omission shall be substituted.

The documents required are:

(1)

the application to the trial court for a stay;

(2)

each brief or memorandum of authorities filed by a party to the application in the

trial court;

(3)

the opinion giving the reasons advanced by the trial court for denying relief;

(4) the trial court order or judgment denying relief.

Reasonable notice of the motion shall be given to all parties. The motion shall be filed with

the clerk of the Supreme Court and will be considered by a panel of the Supreme Court or

the Court of Appeals. In emergency cases the application may be considered by a single

justice or judge of the appropriate appellate court, and the applicant shall file the motion with

the clerk of the Supreme Court in writing as promptly as possible.

(d) Stay May Be Conditioned Upon the Giving of a Bond; Proceedings Against

Sureties. Relief available in the Supreme Court or the Court of Appeals under this rule may

be conditioned upon the filing of a bond or other appropriate security in the trial court. If the

security is given in the form of a bond or stipulation or undertaking with one or more

sureties, each surety submits itself to the jurisdiction of the trial court and irrevocably

appoints the clerk of the trial court as its agent upon whom any papers affecting its liability

on the bond or undertaking may be served. The surety's liability may be enforced on motion

in the trial court without the necessity of an independent action. The motion and notice of

the motion may be served upon the clerk of the trial court, who shall forthwith mail copies

to the sureties if their addresses are known

erk of the trial court as its agent upon whom any papers affecting its liability

on the bond or undertaking may be served. The surety's liability may be enforced on motion

in the trial court without the necessity of an independent action. The motion and notice of

the motion may be served upon the clerk of the trial court, who shall forthwith mail copies

to the sureties if their addresses are known.

[Adopted to govern matters filed on or after January 1, 1995; amended April 26, 2001]

Advisory Committee Historical Note

Effective April 24, 2001, Rule 8 was amended to add (b)(2)-(5). 783-785 So.2d XIX

(West Miss.Cases 2001).

Effective January 1, 1995, Miss.R.App.P. 8 replaced Miss.Sup.Ct.R. 8, embracing

proceedings in the Court of Appeals. 644-647 So.2d XXXV-XXXVII (West Miss.Cases

1994).

Comment

Rule 8(a) is based on Miss. Code Ann. § 11-51-31 (Supp. 1994) and Ala. R. App. P.

8(a). It provides for a stay of a money judgment pending appeal upon approval of a

supersedeas bond by the clerk of the trial court. In a case involving only a money judgment,

the appellant can obtain a stay by posting a bond approved by the clerk. A form for a

supersedeas bond is found in Form 5 in the Appendix of Forms.

All matters concerning stays are to be resolved in the first instance by the trial court,

if possible.

If the trial court clerk declines to approve the bond, the appellant must apply to the trial

court for approval under Rule 8(b). If the clerk approves the bond and the appellee contests

osting a bond approved by the clerk. A form for a

supersedeas bond is found in Form 5 in the Appendix of Forms.

All matters concerning stays are to be resolved in the first instance by the trial court,

if possible.

If the trial court clerk declines to approve the bond, the appellant must apply to the trial

court for approval under Rule 8(b). If the clerk approves the bond and the appellee contests

it for any reason, the appellee must file a motion with the trial court for disapproval of the

bond and to vacate the stay. If the appellant seeks a stay on any basis other than by posting

a 125 percent bond to supersede a money judgment, the appellant must apply to the trial court

for a stay. In determining whether to grant a stay, the trial court should endeavor to protect

the prevailing party. The purpose of a supersedeas bond is to preserve the status quo while

protecting the judgment creditor's rights pending appeal.

The trial court may grant or deny a stay upon such terms as to bond or otherwise as it

considers proper for the security of the adverse party. It may approve security in the form

of a cash or property bond. See M.R.C.P. 62.

While the trial court may not require a bond greater than 125 percent to supersede a

money judgment, the court may, in appropriate cases, approve a supersedeas bond of less

than 125 percent of the money judgment. See Henry v. First National Bank, 424 F. Supp.

633, 639 (N.D. Miss.), aff'd 595 F. 2d 291, 305 (5th Cir. 1979). If an appellant seeks relief

from the full bond requirement, the trial court must, upon notice and hearing find that good

cause justifies a departure from the usual bond requirements. At the hearing, the burden to

provide a secure alternative to the required bond rests on the judgment debtor. Before the

trial court can grant a reduced bond, there must be an objective demonstration that the

appellant's financial strength and ability to respond will remain undiluted during the

pendency of the appeal. A record sufficient to allow review should be made

the usual bond requirements. At the hearing, the burden to

provide a secure alternative to the required bond rests on the judgment debtor. Before the

trial court can grant a reduced bond, there must be an objective demonstration that the

appellant's financial strength and ability to respond will remain undiluted during the

pendency of the appeal. A record sufficient to allow review should be made. The maximum

bond in a contempt case is set by statute, Miss. Code Ann. § 11-51-11 (Supp. 1994). When

the judgment is not a money judgment, the court may, but is not required to, follow the

practice of statutes supplanted by this rule, e.g., now-repealed Miss. Code Ann. § 11-51-35

(Supp. 1986) (double one year's rent to stay execution of a writ of possession in ejectment);

§ 11-51-39 (Supp. 1986) (double value of real estate to be surrendered); now-repealed

§ 11-51-41 (1972) (double value of real estate or charges on real estate).

Under Miss. Code Ann. § 11-51-101 (Supp. 1994), certain parties, including the state,

counties, municipalities, public officers, state educational or charitable institutions, and

federally-owned corporations are entitled to an automatic stay without posting bond or any

action by the clerk of the trial court under this rule. Similarly, no additional action by the

clerk of the trial court is required when the appellant has already posted a sufficient bond

prior to judgment under statutes governing appeals by executors, administrators, and

guardians, Miss. Code Ann. § 11-51-99 (Supp. 1994), or appeals in estate tax cases, Miss

Code Ann. § 27-9-47 (1994), or appeals from the State Tax Commission, Miss. Code Ann.

§ 27-35-163 (Supp. 1994).

Rule 8(c) and 8(d) are based on Fed. R. App. P. 8 and 5th Cir. R. 8.1.1. They set forth

the procedure to be followed when an appellant or appellee contests the trial court's action

on a stay.