Free Order on Motion to Stay - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

Document 194

Filed 10/01/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 03-cv-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, v. GARY BOYCE, and JOANNE BOYCE, individuals, Defendants.

ORDER GRANTING DEFENDANTS/COUNTERCLAIMANTS' FORTHWITH RENEWED MOTION FOR STAY OF EXECUTION PENDING APPEAL PURSUANT TO FED. R. CIV. P. 62(d) AND FOR APPROVAL OF SUPERSEDEAS BOND Blackburn, J. THIS MATTER is before the court on the Defendants/Counterclaimants' Forthwith Renewed Motion for Stay of Execution Pending Appeal Pursuant to Fed. R. Civ. P. 62(d) And For Approval of Supersedeas Bond [#186], filed August 14, 2007. The plaintiff, Gary Hornick, filed a response [#187], and the defendants / counterclaimants, Gary and Joanne Boyce, filed a reply [#192]. Subsequently, the plaintiff filed a Consent To Relief Requested in Reply (#192) and To Entry of Revised Proposed Order as Modified (#192-5) [#193]. The plaintiff represents that the defendant / counterclaimants do not object to the amendments proposed by the plaintiff in his consent [#193]. I grant the relief requested. THEREFORE, THE COURT FINDS as follows:

Case 1:03-cv-02504-REB-CBS

Document 194

Filed 10/01/2007

Page 2 of 4

1. That the supersedeas bond proposed by the defendants / counterclaimants, Gary and Joanne Boyce, as security for a stay of execution of the Judgment pending appeal, in the form attached to their Reply [#192] as Exhibit E, is sufficient; 2. That the Gary and Joanne Boyce should have fifteen business days from the date of this Order to post said supersedeas bond; 3. That pending the submission to the Court of said supersedeas bond, execution of the Judgment should be stayed; 4. That pending the submission to the Court of said supersedeas bond, the Plaintiff, Peter Hornick, should, within five business days from the date of this Order, file with the Court a Release of Lien concerning his judgment liens in the form attached to his Consent To Relief Requested in Reply (#192) and To Entry of Revised Proposed Order as Modified (#192-5) [#193], filed September 18, 2007, as Exhibit 1, which release shall be held by the Clerk of the Court until the Boyces post the supersedeas bond with the Court; 5. That when the Boyces post the supersedeas bond with the court, the release executed by Hornick shall be released by the Clerk of the Court to the Boyces, or to their counsel of record, for filing with the Clerk and Recorder of Saguache County, Colorado. THEREFORE, IT IS ORDERED as follows: 1. That the terms and conditions of the supersedeas bond, as shown in Exhibit E to defendants' reply [#192], proposed by the defendants / counterclaimants as security for a stay execution of the Judgment pending appeal, is sufficient for posting as a supersedeas bond and is hereby APPROVED;

2

Case 1:03-cv-02504-REB-CBS

Document 194

Filed 10/01/2007

Page 3 of 4

2. That execution of the Judgment in this case is hereby STAYED for a period of fifteen business days from the date of this Order, to allow the defendants / counterclaimants, Gary and Joanne Boyce, to submit the supersedeas bond to this Court for posting as a supersedeas bond; 3. That within five business days from the date of this Order, the plaintiff SHALL DEPOSIT with the Clerk of the Court a Release of Judgment Lien in the form attached to the plaintiff's Consent To Relief Requested in Reply (#192) and To Entry of Revised Proposed Order as Modified (#192-5) [#193], filed September 18, 2007, as Exhibit 1; 4. That the Clerk of the Court SHALL HOLD AND RETAIN the Release of Judgment Lien deposited by the plaintiff, Peter Hornick, until the defendants / counterclaimants, Gary and Joanne Boyce, post with the Court the supersedeas bond approved in this order; 5. That when the defendants / counterclaiminants, Gary and Joanne Boyce, post the fully executed supersedeas bond, as shown in Exhibit E to defendants' reply [#192], the Clerk of the Court SHALL RELEASE to Gary and Joanne Boyce, or to their counsel of record, the Release of Judgment Lien deposited by the plaintiff, Peter Hornick, which Release of Judgment Lien may be filed with the Clerk and Recorder of Saguache County, Colorado; 6. That if the defendants / counterclaimiants, Gary and Joanne Boyce, do not post said supersedeas bond, as specified above, within the time set forth above, then the Release of Lien filed by plaintiff, Peter Hornick, SHALL BE RETURNED to Peter Hornick, or to his counsel of record, and the temporary stay of execution referred to 3

Case 1:03-cv-02504-REB-CBS

Document 194

Filed 10/01/2007

Page 4 of 4

above SHALL TERMINATE immediately; 7. That if the Boyces post the supersedeas bond specified above, and within the time specified above, then the plaintiff, Peter Hornick, SHALL BE STAYED from executing on the Judgment entered in this case, pending the outcome of the appeals in this matter. Dated October 1, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

4