STAY OF EXECUTION - SUPERSEDEAS BOND - LAW OF THE CASE: EX PARTE MIA SIMONE CURTIS
Ex parte Mia Simone Curtis, [Ms. 2170004, Nov. 17, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This unanimous decision by Judge Donaldson (Thompson, P.J. and Pittman, Thomas, and Moore, JJ., concur) issues a writ of mandamus directing the Talladega Circuit Court to vacate an order staying execution on a divorce judgment pending the husband’s appeal. Following the entry of final judgment in the parties’ divorce, the wife filed writs of garnishment executing on the judgment. The husband moved to quash the writs of garnishment and sought a stay of execution on the judgment pending appeal. The circuit court quashed the writs of garnishment and granted the husband’s stay. Ms. *4-5.
The court noted that “‘[t]he default rule is that the prevailing party may immediately execute on the judgment. If the appellant desires a stay, it is his responsibility to post the required bond.’” Ms. *7. The court held that the wife’s sole remedy to challenge the circuit court’s interlocutory order staying execution was a petition for writ of mandamus. Ms. *9. The court granted the wife’s petition holding that a trial court does not have discretion to stay a money judgment where the appellant fails to post a supersedeas bond. Ibid., quoting Ex parte Sprigs Enterprises, Inc., 376 So. 2d 1088 (Ala. 1979).
The court rejected the husband’s argument that the wife’s petition was barred by the law-of-the-case doctrine because she did not contest in a prior appeal the husband’s failure to execute a supersedeas bond when the trial court issued a stay pending a prior appeal; the prior appeal had been dismissed as taken from a non-final judgment. Ms. *7. The court explained that “the law-of-the-case doctrine provides ‘that on remand the issues decided by an appellate court become the ‘law of the case,’ and that the trial court must comply with the appellate court’s mandate.’” Ibid. The court found the doctrine patently inapplicable because in the first appeal, “[t]his court was not presented with, nor did it decide, any issue regarding the propriety of the trial court’s issuance of a stay ....” Ms. *8.