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Beau Townsend Ford Lincoln Inc. v. Don Hinds Ford Inc

United States District Court, S.D. Ohio, Western Division

November 8, 2017

BEAU TOWNSEND FORD LINCOLN INC., d/b/a BEAU TOWNSEND FORD, Plaintiff,
v.
DON HINDS FORD, INC. d/b/a DON HINDS FORD, Defendant.

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

          James M. Hill (0030633) JAMES M. HILL CO., L.P.A. ATTORNEY FOR BEAU TOWNSEND FORD LINCOLN, INC.

          AGREED ORDER STAYING EXECUTION OF JUDGMENT PENDING APPEAL

          THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE.

         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 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.

         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 ...

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