Beau Townsend Ford Lincoln Inc v. Don Hinds Ford Inc

Filing 68

AGREED ORDERSTAYING EXECUTION OF JUDGMENT PENDING APPEAL granting 67 Motion to Stay. Signed by Judge Thomas M. Rose on 11/8/17. (pb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BEAU TOWNSEND FORD LINCOLN §
INC., d/b/a BEAU TOWNSEND
§
FORD,
§
§
Plaintiff,
§
§
v.
§
§
DON HINDS FORD, INC. d/b/a
§
DON HINDS FORD,
§
§
Defendant.
§

CASE NO. 3:15-cv-400
JUDGE THOMAS M. ROSE

AGREED ORDER
STAYING EXECUTION OF JUDGMENT PENDING APPEAL
On October 16, 2017, the Court entered judgment (ECF No. 64) in favor of Plaintiff
Beau Townsend Ford Lincoln Inc. d/b/a Beau Townsend Ford (“Beau Townsend Ford”)
and against Don Hinds Ford, Inc. d/b/a Don Hinds Ford (“Don Hinds Ford”) in the
amount of $786,589.41, plus post-judgment interest and costs (the “Judgment”). On
November 6, 2017, Don Hinds Ford timely appealed the Judgment to the United States
Court of Appeals for the Sixth Circuit. (ECF No. 66.)
Don Hinds Ford has moved the Court to stay execution of the Judgment pending
appeal and has sought leave to secure the judgment pending appeal through a letter of
credit. The parties have advised the Court that they have agreed with respect to the
terms of a letter of credit (together with any substitute or replacement for it acceptable
to Beau Townsend Ford, the “Letter of Credit”) in the amount of $850,000.00, the form
of which is attached hereto as Exhibit A, with appropriate redactions, to serve as

1

adequate security to stay the execution on the Judgment, and any proceedings to
enforce it, pending appellate proceedings, pursuant to FED. R. CIV. P. 62(d).
Accordingly, IT IS HEREBY AGREED AND ORDERED that Don Hinds Ford’s
Motion to Stay Execution (ECF No. 67) is hereby GRANTED. All proceedings to
enforce the Judgment (ECF No. 64) are hereby stayed as of November 6, 2017, pending
the final resolution of all appellate proceedings. Further, the Letter of Credit is approved
as adequate security under FED. R. CIV. P. 62(d) during appellate proceedings in this
matter. Don Hinds Ford shall tender the original Letter of Credit to Beau Townsend
Ford within three days from the date of this Order.
IT IS FURTHER AGREED AND ORDERED that Beau Townsend Ford may
make demands for payment on the Letter of Credit, and shall be entitled to the proceeds
thereof, without further order of this Court and consistent with the terms of the Letter of
Credit and this Order upon the occurrence of one or more of the following events
(“Demand Events”):
A. The Judgment or any portion of it in this case has become final and
nonappealable (as defined below), in which circumstance Beau Townsend
Ford may make demands in an aggregate amount for the Judgment or portion
of the Judgment that has become final and nonappealable in its favor,
including post-judgment interest and costs; or
B. The issuer of the Letter of Credit has provided notice to Beau Townsend Ford
of its election not to renew the Letter of Credit or the Letter of Credit is
otherwise subject to expiration within sixty days or less, in which
circumstance Beau Townsend Ford may make demand for the full amount
then available under the Letter of Credit.
2

In the event that one or more Demand Events has occurred, Beau Townsend Ford
may elect, in its sole discretion, to present demands on the Letter of Credit on the basis
of one or more such Demand Events, independently or in any combination.
IT IS FURTHER AGREED AND ORDERED that, for purposes of this Order, the
phrase “has become final and nonappealable” means:
A. that the United States Court of Appeals for the Sixth Circuit has affirmed the
Judgment in favor of Beau Townsend Ford with respect to any amount of
damages notwithstanding any reversal or remand for further proceedings
with respect to any other amount or type of damages or other matter (the
“Affirmed Judgment”), and that Don Hinds Ford’s time to petition for
certiorari in the United States Supreme Court or move for reargument,
rehearing, or reconsideration in the Court of Appeals with respect to the
Affirmed Judgment has expired, and:
i.

as to which no petition for certiorari in the Supreme Court or
motion for reargument, rehearing, or reconsideration shall then
be pending in the Court of Appeals, or

ii.

as to which any right to petition for certiorari, reargument,
rehearing, or reconsideration shall have been waived in writing
by Don Hinds Ford, or

iii.

in the event that a writ of certiorari in the Supreme Court, or
reargument, rehearing, or reconsideration with respect to the
Affirmed Judgment has been sought in the Court of Appeals,
such certiorari, reargument, or rehearing has been denied or
dismissed and the time to take any further appeal, petition for
3

certiorari, or move for reargument, rehearing, or
reconsideration in the Supreme Court or in the Court of Appeals
with respect to the affirmed judgment shall have expired; or
B. that Don Hinds Ford’s appeal in the United States Court of Appeals for the
Sixth Circuit has been dismissed or otherwise terminated without any order in
favor of Don Hinds Ford and that Don Hinds Ford’s time to move for
reargument, rehearing, or reconsideration in the Court of Appeals, or petition
for certiorari in the Supreme Court with respect to that dismissal or
termination, has expired, or in the event that Don Hinds Ford timely moves
for reargument, rehearing, or reconsideration in the Court of Appeals, or
petitions for certiorari in the Supreme Court, that such motion or petition has
been denied;
IT IS FURTHER AGREED AND ORDERED that, so long as Don Hinds Ford
and the issuer maintain the Letter of Credit in compliance with the above terms,
execution of the Judgment (ECF No. 64) is stayed and no execution may issue on that
Judgment nor may any proceedings be taken to enforce the Judgment during appellate
proceedings in this matter, other than as authorized in this Order. Nothing in this
paragraph shall preclude Beau Townsend Ford from drawing upon the Letter of Credit
consistent with the terms of this Order. In the event that Don Hinds Ford does not
maintain the Letter of Credit in compliance with the above terms, or the bank issuing
the Letter of Credit fails to honor a demand for payment thereunder for any reason, no
stay applies and execution on the Judgment may commence.
IT IS FURTHER AGREED AND ORDERED that, in the event the Judgment is
vacated or reversed in its entirety in a final and nonappealable order of an appellate
4

court so that no amount remains owing to Beau Townsend Ford, Beau Townsend Ford
shall immediately return the original Letter of Credit to Don Hinds Ford upon the
demand of same from Don Hinds Ford.
IT IS FURTHER AGREED AND ORDERED that, upon a showing of good cause,
either party may request that the Court modify the terms of this Order.
SO ORDERED.
Novermber 8, 2017
Dated: ____________________
s/Thomas M. Rose
UNITED STATES DISTRICT JUDGE

AGREED:

/s/ Brian S. Jones
RONALD C. SMITH (pro hac vice)
JEFFREY B. HALBERT (pro hac vice)
BRIAN S. JONES (pro hac vice)
BOSE MCKINNEY & EVANS LLP
111 Monument Circle, Suite 2700
Indianapolis, Indiana 46204
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

/s/ James M. Hill
James M. Hill (0030633)
JAMES M. HILL CO., L.P.A.
2365 Lakeview Drive, Suite A
Beavercreek, OH 45431-3639
Tel: [phone]
Fax: [phone]
E-Mail: [e-mail]
ATTORNEY FOR BEAU
TOWNSEND FORD LINCOLN,
INC.

ATTORNEYS FOR DON HINDS
FORD, INC. D/B/A DON HINDS
FORD

5