Hershel Garner et al. v. Beaver Water District

Ca03-641

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

HERSHEL GARNER and DENISE GARNER, husband and wife, and JESSICA NORMAN

APPELLANTS

V.

BEAVER WATER DISTRICT

APPELLEE

CA03-641

June 25, 2003

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CV-03-67-3]

HONORABLE JAY T. FINCH, CIRCUIT JUDGE

REMAND FOR DETERMINATION OF AMOUNT OF SUPERSEDEAS BOND

Appellants have appealed from an order restricting after May 26, 2003, appellant Jessica Norman's access to a cabin located on certain property that is subject to an eminent domain proceeding. See Ark. Code Ann. ยงยง 14-116-402(a)(10(a) and 18-15-601(a) (Supp. 2001). According to the order, the court has set a trial date on the issue of the necessity of the taking. The record in this case has been filed with the clerk of this court, and appellant has filed a motion asking that we stay proceedings on the order and accept a supersedeas bond. We, however, cannot approve a bond that has not been tendered, nor can we issue a stay until we approve the bond.

A supersedeas bond must be sufficient in amount to

guarantee that appellant shall pay appellee "all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the circuit court." Ark. R. App. P. -- Civ. 8(c) (2003). These costs and damages include interest on the judgment and all costs and damages for delay that may be adjudged against appellant on appeal or which may result from dismissal or affirmance of the decision appealed. Home Mut. Fire Ins. Co. v. Jones, 62 Ark. App. 182, 969 S.W.2d 675 (1998).

Appellants should file a supersedeas bond in proper form binding appellants together with a certificate of deposit, certified check, cash, bank money order, corporate surety, or irrevocable letter of credit and then request approval of the bond and an order staying proceedings on the judgment. Id. However, because we have no basis on which to determine the amount of the supersedeas bond, we must remand this case to the circuit court for a determination of the proper amount. Appellants may then file with the circuit court a supersedeas bond and request approval of the bond and an order staying proceedings on the judgment.

Gladwin and Crabtree, JJ., not participating.