A frequent question we receive from our clients seeking an appeal is whether or not they can stay1 the trial court’s ruling during the pendency of the appeal. The answer to that question is, it depends. In general, seeking a stay during the pendency of an appeal is difficult to accomplish. Whether you will be successful in seeking a stay of the trial court’s order depends on the specific facts of the case and what is at issue for stay (property and/or custody). In this blog, we provide a brief overview of the process of seeking a stay during the pendency of an appeal and whether you may qualify for one.
Before we discuss the process of seeking a stay, you may be wondering, what exactly is a stay? And what does it mean? If you, or someone you know, are seeking an appeal, then it is safe to assume you did not agree with the trial court’s ruling. While you may not have agreed with the ruling, and while you may win on appeal, that does not mean that the trial court’s ruling will not be enforced during the time your appeal is pending. This means, in the absence of a stay, you must follow the trial court’s order while your appeal is pending, whether that be a custody modification, paying a sum of money, or refraining from doing some action. Unless and until the trial court’s ruling is reversed, it is valid and must be followed. However, an individual may seek a “stay” of the ruling or judgment during the pendency of the appeal. In a nutshell, a stay is a request to maintain the “status quo,” so to speak, while your appeal is pending.
Now knowing what a stay is, and the purpose behind it, we discuss the process of obtaining a stay. The first step is to file a request with the trial court to stay enforcement of a judgment, pursuant to trial rule 62. Under rule 62(B), a trial court can stay the enforcement of a judgment pending the filing and disposition of an appeal. This ability of the trial court to stay enforcement of the judgment is completely discretionary. Therefore, you must persuade the trial court that a stay would be proper. Convincing the trial court (i.e., the court that just made the ruling or judgment) to stay their order is a somewhat difficult task. This is where skill counsel can assist with drafting strong arguments for stays. In some circumstances, such as a judgment for money, you may be required to pay a bond in the amount of the judgment in order to obtain a stay.
If the trial court denies your stay or does not timely rule on it, you may request a stay with the Court of Appeals. Indiana Rule of Appellate Procedure 39 deals with stays at the Court of Appeals level. The general rule before filing for a stay at the Court of Appeals level is that you must first file your request at the trial court level. Only after the stay is denied by the trial court may you seek a stay with the court of appeals. There are, however, a few exceptions to this rule. Those are that the trial court either: (1) failed to rule on your request for a stay within a reasonable amount of time in light of the circumstances and relief requested; or (2) extraordinary circumstances exist which excuse the filing of the stay at the trial court level.
Whether you can obtain a stay will depend on the facts of the case. With money and property, unlike custody, the trial court is likely to require you to post a bond to address the contingency that you do not prevail on appeal. This area of law is extremely technical. The above information is general in nature, and there are exceptions to almost every rule. Obtaining skilled counsel is key to navigating the complex waters of appeals. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle all types of appeals, be it civil or criminal, throughout Indiana. This blog is intended for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- This means it is not enforced for property or custody and the prior order remains controlling.
