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)

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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: (317) 684-5000 Facsimile: (317) 684-5173 rsmith@boselaw.com jhalbert@boselaw.com b.jones@boselaw.com /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: (937) 427-2000 Fax: (937) 320-5393 E-Mail: kchapman@jmhilllaw.com ATTORNEY FOR BEAU TOWNSEND FORD LINCOLN, INC. ATTORNEYS FOR DON HINDS FORD, INC. D/B/A DON HINDS FORD 5

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