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St. Mary's Law Journal

Abstract

Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be unrealistic or indefensible. Under House Bill 4, the change in defining what is to be superseded, from “the amount of judgment” to “compensatory damages awarded in the judgment” raises the question of whether attorney’s fees and pre-judgment interest has been eliminated from supersedeas requirements. House Bill 4 defined compensatory damages as “economic and non-economic damages.” This requires analysis of whether attorney’s fees and pre-judgment interest would be included as economic damages. There is no doubt that the legislative intent in changing the rules on supersedeas was to exclude exemplary damages. The legislature also clearly intended to put in place limitations on the amount of security to accomplish that legislative purpose. The uncertainty of what the legislature meant by “actual economic or pecuniary loss,” as understood in the context of recoverable damages, provides grounds for arguing the exclusion of attorney’s fees in the determining the amount of supersedeas. Yet, including attorney’s fees would be consistent with the purpose of supersedeas and consistent with prior law. This would not be repugnant to what appears to be legislature’s clear purpose of removing exemplary damages, adding limits, and creating restraints and discretion in setting the amount of supersedeas in instances where justice requires.

Publisher

St. Mary's University School of Law

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