2006 Code of Virginia § 8.01-676.1 - Security for appeal

8.01-676.1. Security for appeal.

A. Security for costs of appeal of right to Court of Appeals. - A partyfiling a notice of an appeal of right to the Court of Appeals shallsimultaneously file an appeal bond or irrevocable letter of credit in thepenalty of $500, or such sum as the trial court may require, subject tosubsection E, conditioned upon paying all costs and fees incurred in theCourt of Appeals and the Supreme Court if it takes cognizance of the claim.If the appellant wishes suspension of execution, the security shall also beconditioned as provided in subsection C and shall be in such sum as the trialcourt may require.

B. Security for costs on petition for appeal to Court of Appeals or SupremeCourt. - An appellant whose petition for appeal is granted by the Court ofAppeals or the Supreme Court shall (if he has not done so) within 15 daysfrom the date of the Certificate of Appeal file an appeal bond or irrevocableletter of credit in the same penalty as provided in subsection A, conditionedon the payment of all damages, costs, and fees incurred in the Court ofAppeals and in the Supreme Court.

C. Security for suspension of execution. - An appellant who wishes executionof the judgment or award from which an appeal is sought to be suspendedduring the appeal shall, subject to the provisions of subsection J, file anappeal bond or irrevocable letter of credit conditioned upon the performanceor satisfaction of the judgment and payment of all damages incurred inconsequence of such suspension, and except as provided in subsection D,execution shall be suspended upon the filing of such security and the timelyprosecution of such appeal. Such security shall be continuing and additionalsecurity shall not be necessary except as to any additional amount which maybe added by the courts.

D. Suspension of execution in decrees for support and custody; injunctions. -The court from which an appeal is sought may refuse to suspend the executionof decrees for support and custody, and may also refuse suspension when ajudgment refuses, grants, modifies, or dissolves an injunction.

E. Increase or decrease in penalty of security. - The Court of Appeals or theSupreme Court, when it considers a petition for appeal, may order that thepenalty of the security for the appeal be decreased or increased if suchrequest is made in the brief of any party filed in the Court of Appeals, orin the Petition for Appeal or the appellee's Brief in Opposition filed in theSupreme Court or the Court of Appeals. Affidavits and counter-affidavits maybe filed by the parties containing facts pertinent to such request. Anyincrease or decrease in the amount of the security so ordered shall beeffected in the clerk's office of the trial court within 15 days of the orderof the Court of Appeals or the Supreme Court. If an increase so ordered isnot effected within 15 days, the appeal shall be dismissed. Such increase ordecrease in the penalty of the security may also be considered and ordered bythe trial court, on motion of either party, at any time until the Court ofAppeals or the Supreme Court acts upon the amount of penalty, and failure toincrease such penalty as hereinabove provided shall also cause the appeal tobe dismissed.

F. By whom executed. - Each bond filed shall be executed by a party oranother on his behalf, and by surety approved by the clerk of the court fromwhich appeal is sought, or by the clerk of the Supreme Court or the clerk ofthe Court of Appeals if the bond is ordered by such Court. Any letter ofcredit posted as security for an appeal shall be in a form acceptable to theclerk of the court from which appeal is sought, or by the clerk of theSupreme Court or the Court of Appeals if the security is ordered by suchcourt. The letter of credit shall be from a bank incorporated or authorizedto conduct banking business under the laws of this Commonwealth or authorizedto do business in this Commonwealth under the banking laws of the UnitedStates, or a federally insured savings institution located in thisCommonwealth.

G. Appeal from State Corporation Commission; security for costs. - When anappeal of right is entered from the State Corporation Commission to theSupreme Court, and no suspension of the order, judgment, or decree appealedfrom is requested, such appeal bond or letter of credit shall be filed whenand in the amount required by the clerk of the Supreme Court, whose actionshall be subject to review by the Supreme Court.

H. Appeal from State Corporation Commission; suspension. - Any judgment,order, or decree of the State Corporation Commission subject to appeal to theSupreme Court may be suspended by the Commission or by the Supreme Courtpending decision of the appeal if the Commission or the Supreme Court deemssuch suspension necessary for the proper administration of justice but onlyupon the written application of an appellant after reasonable notice to allother parties in interest and the filing of a suspending bond or irrevocableletter of credit with such conditions, in such penalty, and with such suretythereon as the Commission or the Supreme Court may deem sufficient. But nosurety shall be required if the appellant is any county, city or town of thisCommonwealth, or the Commonwealth.

I. Forms of bonds; letters of credit; where filed. - The Clerk of the SupremeCourt shall prescribe separate forms for appeal bonds, one for costs alone,one for suspension of execution, and one for both and a form for irrevocableletters of credit, to which the bond or bonds or irrevocable letters ofcredit given shall substantially conform. The forms for each bond and theletter of credit shall be published in the Rules of Court. It shall besufficient if the bond or letter of credit, when executed as required, isfiled with the trial court, clerk of the Virginia Workers' CompensationCommission, or the clerk of the State Corporation Commission, whichever isapplicable, and no personal appearance in the trial court, Virginia Workers'Compensation Commission, or State Corporation Commission by the principal,the surety on the bond or the bank issuing the letter of credit shall berequired as a condition precedent to its filing.

J. In any civil litigation under any legal theory, the amount of the appealbond or irrevocable letter of credit to be furnished during the pendency ofall appeals or discretionary reviews of any judgment granting legal,equitable, or any other form of relief in order to stay the execution thereonduring the entire course of appellate review by any courts shall be set inaccordance with applicable laws or court rules, except that the total appealbond or irrevocable letter of credit that is required of an appellant and allof its affiliates shall not exceed $25 million, regardless of the value ofthe judgment.

K. Dissipation of assets. - If the appellee proves by a preponderance of theevidence that a party bringing an appeal, for whom the appeal bond orirrevocable letter of credit requirement has been limited or waived pursuantto subsection J, is purposefully dissipating its assets or diverting assetsoutside the jurisdiction of the United States courts for the purpose ofevading the judgment, the limitation or waiver granted pursuant to subsectionJ shall be rescinded and a court may require the appellant to post a bond orirrevocable letter of credit in an amount up to the full amount of thejudgment. Dissipation of assets shall not include those ongoing expendituresmade from assets of the kind that the appellant made in the regular course ofbusiness prior to the judgment being appealed, such as the payment of stockdividends and other financial incentives to the shareholders of publiclyowned companies, continued participation in charitable and civic activities,and other expenditures consistent with the exercise of good business judgment.

L. For good cause shown, a court may otherwise waive the filing of an appealbond or irrevocable letter of credit as to the damages in excess of, or otherthan, the compensatory damages.

M. Exemption. - When an appeal is proper to protect the estate of a decedentor person under disability, or to protect the interest of the Commonwealth orany county, city, or town of this Commonwealth, no security for appeal shallbe required.

N. Indigents. - No person who is an indigent shall be required to postsecurity for an appeal bond.

O. Virginia Workers' Compensation Commission. - No claimant who files anappeal from a final decision of the Virginia Workers' Compensation Commissionwith the Court of Appeals shall be required to post security for costs asprovided in subsection A or B of this section if such claimant has notreturned to his employment or by reason of his disability is unemployed. Suchclaimant shall file an affidavit describing his disability and employmentstatus with the Court of Appeals together with a motion to waive the filingof the security under subsection A or B of this section.

P. Time for filing security for appeal. - The appeal bond or letter of creditprescribed in subsections A and B is not jurisdictional and the time forfiling such security in cases before the Court of Appeals or the SupremeCourt may be extended by a judge or justice of the court before which thecase is pending on motion for good cause shown and to attain the ends ofjustice.

Q. Consideration of appeal bond or letter of credit by Court of Appeals. - Adetermination on an issue affecting an appeal bond or letter of credit in acase before the Court of Appeals may be considered by an individual judge ofsuch court rather than by a panel of judges.

(1984, c. 703; 1986, c. 89; 1987, cc. 460, 684; 1988, c. 883; 1996, c. 77;2000, c. 100; 2004, cc. 328, 356.)