Handling appeal and suspension bonds correctly is one of the more technical but nonetheless important parts of prosecuting an appeal.
We often get questions about this stuff. In fact, a discussion on suspension bonds sprang up on the VTLA listserv last Friday. So it’s important to talk about bonds, even they ultimately prove goatless in comparison to the normally thrilling subject matter of this blog.
(Also, I know this is boring, so I threw in something silly at the end of the post.)
The appeal bond itself is straightforward: If the SCV grants your appeal, then within 15 days you have to post a $500 bond or irrevocable letter of credit as security for costs. Va. Code Sec. 8.01-676.1(B); Va. Sup. Ct. R. 5:24.
The order granting your appeal will remind you of this fact. Even if you mess up, you will get a chance to fix the bond before your appeal is dismissed. Va. Sup. Ct. R. 5:24(b). And the Rules include forms for the appeal costs bond. Easy enough.
The suspension bond is where things get interesting. If the appellant wants suspend execution of the judgment during the appeal, she has to post a suspension bond or irrevocable letter of credit. Va. Code Sec. 8.01-676.1(C).
The amount of the suspension bond is up to the trial court. Va. Code Sec. 8.01-676.1(J). I believe that the judgment amount plus 12-18 months’ interest at 6% is reasonable; it includes interest at the judgment rate during the estimated pendency of the appeal, and I’ve never gotten pushback on that amount. Of course, it’s generally easier to settle these things up front to head off fights before they start. That’s why we recommend including language about suspension bonds in final orders. Again, the Rules provide forms for suspension bonds.
That’s all easy enough in theory, but as a mechanical matter, where does the suspension bond come from? Who writes it?
Well, bonds come from bondsmen (er, bondspeople?) and letters of credit come from banks. But before you start worrying about paying premiums or fees, we’ve found an easier way to handle this: Just call the clerk. See if they’ll let you use cash surety (read: a check) in the appropriate amount instead of a bond or a letter of credit.
A word about terminology here: The forms that I’ve seen refer to an appeal bond with cash surety. When I mentioned that on the VTLA listserv, it triggered a response that cash is money, a bond is a promise, and a surety is a person.
Roger that. While I agree with the vocabulary lesson in principle and certainly don’t claim to be an expert in surety law, I am (relatively) reliably informed that there are things in the world called “surety bonds” and “cash surety”. See, e.g., Black’s Law Dictionary 1483 (8th ed. 2004) (surety bond); Answers.com: What is the difference between the judge giving a surety bond or cash surety?; Ask.com: What is a cash surety bond?
Of course, I could be wrong. It doesn’t matter; none of the terminology is worth fighting about so long the clerk will let you client avoid the hassle of dealing with bondsmen and banks by just posting a check. It’s not clear that the clerk has discretion to refuse. Va. Code Sec.1-205 (“‘Bond with surety’ includes the payment in cash of the full amount of the required bond and, in such case, no surety will be required.”)
Even if the clerk’s office has to accept cash, it’s still worth a call to see what type of check will be acceptable.
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