Rule 7.108 Stay of Proceedings; Bond; Review

(A)   General Provisions.

(1)   A motion for bond or a stay pending appeal may not be filed in the circuit court unless such a motion was decided by the trial court. The motion must include a copy of the trial court’s opinion and order and a copy of the transcript of the hearing, unless its production has been waived.

(2)   Except as otherwise provided by rule or law, the circuit court may amend the amount of bond, order an additional or different bond and set the amount, or require different or additional sureties. The circuit court may also remand a bond matter to the trial court. The circuit court may grant a stay of proceedings in the trial court or stay the effect or enforcement of any judgment or order of a trial court on terms the circuit court deems just.

(B)   Civil Actions.

(1)   Automatic Stay. Unless otherwise provided by rule, statute, or court order, an execution may not issue and proceedings may not be taken to enforce an order or judgment until expiration of the time for taking an appeal of right.

(2)   Effect of Appeal. An appeal does not stay execution unless:

(a)   the appellant files a bond in an amount not less than 1-1/4 times the amount of the judgment or order being enforced, including any costs, interest, attorney fees, and sanctions assessed to date of filing the bond. When the bond is filed, the judgment or order shall automatically be stayed pending entry of a final order under MCR 7.108(B)(4)(c) to stay enforcement of the judgment even though objections to the bond or surety may be filed, or

(b)   the trial court grants a stay with or without bond under MCR 3.604(L), MCR 7.209(E)(1), or MCL 600.2605. The stay order must conform to any condition expressly required by the statute authorizing review.

(3)   Bond Form and Content. The bond must:

(a)   recite the names and designations of the parties and the judge in the trial court; identify the parties for whom and against whom judgment was entered; and state the amount of the judgment, including any costs, interest, attorney fees, and sanctions assessed;

(b)   contain the promises and conditions that the appellant will:

(i)   diligently file and prosecute the appeal to decision taken from the judgment or order stayed, and will perform and satisfy the judgment or order stayed if it is not set aside or reversed;

(ii)   perform or satisfy the judgment or order stayed if the appeal is dismissed;

(iii)   pay and satisfy any judgment or order entered and any costs assessed against the principal on the bond in the circuit court, Court of Appeals, or Supreme Court; and

(iv)   do any other act which is expressly required in the statute authorizing appeal or ordered by the court;

(c)   be executed by the appellant along with one or more sufficient sureties as required by MCR 3.604; and

(d)   include the conditions provided in MCR 4.201(N)(4) if the appeal is from a judgment for the possession of land.

(4)   Notice of Bond; Objections; Stay Orders.

(a)   A copy of a bond and any accompanying power of attorney or affidavit must be promptly served on all parties in the manner prescribed in MCR 2.107. At the same time, the party seeking the stay shall file a proposed stay order pursuant to MCR 2.602(B)(3). Proof of service must be filed promptly with the trial court in which the bond has been filed.

(b)   Objections shall be filed and served within 7 days after service of the notice of bond. Objections to the amount of the bond are governed by MCR 2.602(B)(3). Objections to the surety are governed by MCR 3.604(E).

(c)   If no timely objections to the bond, surety, or stay order are filed, the trial court shall promptly enter the order staying enforcement of the judgment or order pending all appeals. Unless otherwise ordered, the stay shall continue until jurisdiction is again vested in the trial court or until further order of an appellate court.

(d)   Any stay order must be promptly served on all parties in the manner prescribed in MCR 2.107. Proof of service must be filed promptly with the trial court.

(e)   All hearings under this rule may be held by telephone conference as provided in MCR 2.402.

(5)   For good cause shown, the trial court may set the amount of the bond in a greater or lesser amount adequate to protect the interests of the parties.

(6)   A bond may be secured under MCL 600.2631.

(7)   If an execution has issued, it is suspended by giving notice of filing of the bond to the officer holding the execution.

(C)   Criminal Cases.

(1)   Immediate Effect. A criminal judgment may be executed immediately even though the time for taking an appeal has not elapsed. The granting of bond and its amount are within the discretion of the trial court, subject to the applicable laws and rules on bonds pending appeals in criminal cases.

(2)   Bond Form and Content. If a bond is granted, the defendant must promise in writing:

(a)   to prosecute the appeal to decision;

(b)   if the sentence is one of incarceration, to surrender immediately to the county sheriff or as otherwise directed, if the judgment of sentence is affirmed on appeal or if the appeal is dismissed;

(c)   if the sentence is other than one of incarceration, to perform and comply with the judgment of sentence if it is affirmed on appeal or if the appeal is dismissed;

(d)   to appear in the trial court if the case is remanded for retrial or further proceedings or if a conviction is reversed and retrial is allowed;

(e)   to remain in Michigan unless the court gives written approval to leave;

(f)   to notify the trial court clerk in writing of a change of address; and

(g)   to comply with any other conditions imposed by law or the court.

(3)   Notice of Bond; Objections. A criminal defendant filing a bond after conviction shall give notice to the prosecuting attorney of the time and place the bond will be filed. The bond is subject to the objection procedure provided in MCR 3.604.

(D)   Civil Infractions. An appeal bond and stay in a civil infraction proceeding is governed by MCR 4.101(H)(1).

 

(E)   Probate Actions.

(1)   The probate court has continuing jurisdiction to decide other matters pertaining to the proceeding from which an appeal was filed.

(2)   A stay in an appeal from the probate court is governed by MCL 600.867 and MCR 5.802(C).