CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2008 WL 1734148
...(Nassau Branch) (collectively "Banco Espirito"), the judgment creditor below. BDO claims that the trial court erred in allowing Banco Espirito to proceed with discovery in aid of execution after BDO posted a fifty million dollar bond to stay execution as authorized by section 45.045 of the Florida Statutes: (1) Except for certified class actions subject to s....
...ws, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. The $50 million amount shall be adjusted annually to reflect changes in the Consumer Price Index compiled by the United States Department of Labor. § 45.045(1), Fla....
...dgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria. Fla. R. App. P. 9.310(a)-(b)(1) (emphasis added). We agree with BDO that section 45.045 should have been applied in this case to preclude the discovery in aid of execution at issue. Rule 9.310(a) expressly authorizes modifications to its terms as "provided by general law." Here, that modification came by way of section 45.045....
...It is true that if the procedural elements of a statute "are found to intrude impermissibly upon the procedural practice of the courts, the legislative provisions would have to give way to the court rules and procedures." Kalway v. State,
730 So.2d 861, 862 (Fla. 1st DCA 1999). However we do not view section
45.045 as an intrusion into the practice and procedure of the judiciary....
...hich purports to create or modify a procedural rule of court is constitutionally infirm," but at the same time observing that "matters of substantive law are within the Legislature's domain"). Rather, the fifty million dollar bond cap provided in subsection 45.045(1) concerns substantive rights to property and to appeal and not an impermissible intrusion on the procedural practices of the courts....
...ions that the trial court grant the motion to quash. NOTES [1] Article V, Section 2(a) of the Florida Constitution provides that the Florida Supreme Court "shall adopt rules for the practice and procedure in all courts." [2] We note that by adopting section 45.045 in 2006, the Florida legislature has joined the legislatures of many other states in reforming the supersedeas bond requirements in civil cases by adopting bond caps, none of which have been held unconstitutional....
CopyPublished | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 11242
...and Banco Espirito Santo S.A. (Nassau Branch) (herein, Banco Espirito), the judgment creditors below, seek review of an order denying their request to compel judgment debtor BDO Seidman, LLP (herein, BDO) to comply with post-judgment discovery under section 45.045(3) of the Florida Statutes....
...that BDO Seidman, LLP v. Banco Espirito Santo International Ltd.,
998 So.2d 1 (Fla. 3d DCA 2008) (" BDO I "), controls, mandating enforcement of the order under review. We agree with Banco Espirito that the court below misinterpreted both BDO I and section
45.045(3) in issuing a blanket denial of Banco Espirito's request....
...Accordingly, we grant Banco Espirito's motion, quash the order under review, and remand for consideration of the discovery request at issue in light of this opinion. Like BDO I, the instant dispute stems from a $511,089,343 judgment in Banco Espirito's favor and deals specifically with interpretation and application of section 45.045, the statute pursuant to which BDO posted a $50 million supersedeas bond to stay execution. In that opinion, we addressed the constitutionality of section 45.045 and concluded that the legislature acted within its authority in imposing a cap on supersedeas bonds. We also concluded that the posting of a $50 million bondthe maximum bond permitted by section 45.045by BDO, *3 stayed execution of Banco Espirito's judgment, even though the amount posted did not equal the principal amount of Banco Espirito's judgment ($511,089,343) plus twice the statutory rate of interest on judgments as provided by Florida Rule of Appellate Procedure 9.310. Finally, because we determined that the judgment was stayed by virtue of posting of the bond, we concluded that discovery in aid of execution was precluded: We agree with BDO that section 45.045 should have been applied in this case to preclude the discovery in aid of execution at issue. Rule 9.310(a) expressly authorizes modifications to its terms as "provided by general law." Here, that modification came by way of section 45.045....
...It is true that if the procedural elements of a statute "are found to intrude impermissibly upon the procedural practice of the courts, the legislative provisions would have to give way to the court rules and procedures." Kalway v. State,
730 So.2d 861, 862 (Fla. 1st DCA 1999). However we do not view section
45.045 as an intrusion into the practice and procedure of the judiciary....
...ocedural rule of court is constitutionally infirm" but at the same time observing that "matters of substantive law are within the Legislature's domain"). BDO I,
998 So.2d at 2 (emphasis added). BDO I did not, however, address discovery authorized by section
45.045(3) for the purpose of determining whether assets have been or are being dissipated during a stay authorized by section
45.045(1)....
..., Florida Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. § 45.045(1), (3), Fla....
...9.310(b)(1). Banco Espirito was therefore entitled to "engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so." § 45.045(3), Fla. Stat. (2009). *5 Of course, section 45.045(3) should not be read as authorization for an unfettered fishing expedition through an appellant's records, [3] which would amount to no more than discovery in aid of execution. Section 45.045(3) neither nullifies the protection provided by compliance with section 45.045(1) nor conflicts with our statements in BDO I. Rather, section 45.045(3) provides a narrow avenue for discovery for a limited stated purpose. Accordingly, Banco Espirito's motion for review is granted. On remand, and after a careful review of the materials sought, section 45.045(3) discovery may be permitted, but only to the extent that the trial court determines that the discovery sought is "for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so." § 45.045(3), Fla....
...Both House Bill 841 and Senate Bill 2250 were titled as acts limiting supersedeas bonds and providing for an exception to the limits imposed if an appellant engaged in conduct for the purpose of avoiding payment of a judgment. Fla. H.B. 841 (2006); Fla. S.B. 2250 (2006). Although these bills, which ultimately became section 45.045, changed as they passed through various House and Senate committees, the analysis of these provisions remained the same....
...Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. Fla. S. Comm. On Judiciary, SB 2250 (2006) Staff Analysis s2250 (Apr. 27, 2006). Thus, from the outset, the intent behind section 45.045 was plain: to cap supersedeas bonds at a set amount and permit an increase to that authorized by Rule 9.310(b)(1) where assets are being diverted or dissipated....
CopyPublished | Florida 3rd District Court of Appeal
...A trial court has the authority, upon the
motion of a party pursuant to rule 9.310(a), to enter a stay upon conditions other
4
need not belabor this point, however, because in 2006, the Legislature enacted
section 45.045, Florida Statutes (2006), which supplements rule 9.310 and
authorizes the trial court, under certain circumstances and upon a proper showing,
to reduce the amount, or otherwise alter the conditions, of a supersedeas bond.
Section 45.045 provides:
(1) Except for certified class actions subject to s....
...Accordingly, we need not consider in this case whether our decisions in
Cochran, Campbell and Decillis are in conflict with Silver Beach and Platt, in light
of the discretion now conferred upon the trial court by the Legislature’s 2006
enactment of section 45.045(2),4 which authorizes a trial court to, under
4 Neither party contends that this statute, or the particular provision at issue,
unconstitutionally encroaches upon the Florida Supreme Court’s rule-making
authority....
...that same statute also creates an
exception to the exercise of this discretion, expressly providing that the trial court
“may not reduce the supersedeas bond if the appellant has an insurance or
indemnification policy applicable to the case.” § 45.045(2), Fla....
