Free Motion to Stay - District Court of Colorado - Colorado

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

Document 117

Filed 09/18/2006

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, vs. GARY BOYCE, and JOANNE BOYCE, individuals Defendants/Counterclaimants ________________________________________________________________ DEFENDANTS' FORTHWITH MOTION TO STAY JUDGMENT PENDING DETERMINATION OF POST-TRIAL MOTIONS ________________________________________________________________ Pursuant to Fed. R. Civ. P. 62(b), Defendants Gary and Joanne Boyce respectfully request the Court to stay execution of the judgment in this matter pending determination of post-trial motions, and for an additional period of thirty days thereafter, to allow Defendants an adequate opportunity to move the Court for an additional stay and approval of a supersedeas bond pursuant to Fed. R. Civ. P. 62(d). In support of this motion, Defendants state as follows: 1. Pursuant D.C.Colo.LCivR 7.1A, the undersigned certifies that he has

conferred with Plaintiff's counsel in good faith in an effort to reach agreement as to a consensual stay of execution. Pursuant to the terms of Defendants' proposal, Plaintiff would have retained the right to perfect a judgment lien upon the Villa Grove ranch notwithstanding such stay. Plaintiff was unwilling to agree to a stay on these terms

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

Document 117

Filed 09/18/2006

Page 2 of 6

unless the Defendants waived their right of appeal. Defendants are unwilling to agree to do so and, therefore, are required to file the instant motion. 2. On September 6, 2006, the Court entered judgment in favor of Plaintiff

Peter Hornick and against the Defendants in the amount of $3,500,000, together with pre- and post-judgment interest. 3. Based upon the date that judgment was entered in this case, the deadline

for Defendants to file a motion to amend the judgment pursuant to Fed. R. Civ. P. 52(b) is September 20, 2006. 4. Contemporaneously with this motion, Defendants are filing their Motion to

Alter or Amend Findings (the "Motion to Amend") pursuant to Fed. R. Civ. P. 52(b). 5. Pursuant to Rule 62(a), an automatic ten-day stay of execution on the

judgment is currently in place. That stay will expire on September 20, 2006. 6. Rule 62(b) provides that the Court, "[i]n its discretion and on such

conditions for the security of the adverse party as are proper, may stay the execution of or any proceedings to enforce a judgment pending the disposition of" a post-trial motion made pursuant to Rule 52(b). 7. Good cause exists for a stay of execution to be issued in this case. The

manner in which Hornick's damages should have been calculated was not formally briefed by the parties during the prior proceedings and was only tangentially addressed by Plaintiff's counsel during the rebuttal portion of his closing argument. In its Motion to Amend, the Boyce Defendants demonstrate that the method used by the Court to calculate damages effectively awarded Hornick an impermissible double recovery

2

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

Document 117

Filed 09/18/2006

Page 3 of 6

because it failed to account for the fact that on December 11, 2001 (the date of the breach of contract and the date upon which Hornick's damages must be measured), Hornick retained his fifty percent membership interest in Villa Grove and the Villa Grove ranch had not been transferred from the company. The Court's calculation also did not address the impact that a decision in the pending state court action--which will squarely address Hornick's ownership status in the Villa Grove ranch--will have on Hornick's ultimate damages. 8. If the Court grants this motion, Hornick will be adequately protected. He

has already localized the Court's judgment in the District Court for Saguache County, Colorado, in anticipation of placing a judgment lien upon the Villa Grove ranch. See Exhibit A, Notice of Filing a Foreign Judgment. To the extent that Hornick has not already done so, the Defendants have no objection to allowing Hornick to perfect his judgment lien on the Villa Grove ranch as a condition of this stay. 9. In addition, there is presently $1,125,000, plus accrued interest, on

deposit in the court registry in connection with Villa Grove Ranch Co., LLC. v. Peter Hornick, Joanne Boyce and Gary Boyce, Case No. 05-CV-53 (Saguache County Dist. Ct.) (the "Saguache Litigation"). If Hornick prevails in the Saguache Litigation, the transaction by which the Boyces acquired the Villa Grove ranch will be unwound, and the Villa Grove ranch will be returned to the company, subject to Hornick's 50%

3

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

Document 117

Filed 09/18/2006

Page 4 of 6

membership interest and his judgment lien.1 If Hornick is unsuccessful in that case, he will be paid the funds that are on deposit with the Saguache County District Court and he would still retain his judgment lien on the ranch. Either way, Hornick is adequately protected while the Motion to Amend is pending.2 10. Defendants anticipate that if the Court denies the Motion to Amend, they

will likely file an appeal of the judgment. Under the circumstances here, it makes sense for the stay to remain in place through the notice of appeal deadline. At trial, neither party presented evidence as to the present value of the Villa Grove ranch. Clearly, a fundamental issue relating to any Fed. R. Civ. P. 62(d) motion by Defendants will be whether the Villa Grove ranch is adequate security for a supersedeas bond. Hornick testified at trial that in January 2001, the Villa Grove ranch was worth at least $4,000,000. Assuming, solely for the purpose of this Motion, that Hornick's valuation was correct, there is no reason to believe the Villa Grove ranch has done anything other than appreciate in value. However, by extending the stay through the appeal deadline, the Defendants will have a fair opportunity to obtain a current valuation of the Villa Grove ranch3 and martial any additional assets that may be necessary if the Court

1

Hornick will inevitably argue that the First Southwest Bank Deed of Trust that the Boyces placed on the Villa Grove Ranch to finance their purchase reduces the value of the ranch as collateral. This argument is a red herring. The proceeds from the loan that is secured by that lien are on deposit in the court registry in the Saguache Litigation. These funds would be paid back to First Southwest Bank if the transaction were to be unwound, thereby discharging the bank's lien. Given that trial is presently set in the Saguache Litigation for February 2007, it is unlikely that either event will come to pass before the Court rules on the Motion to Amend and Defendants' deadline to file a notice of appeal has passed. On September 15, 2006, the undersigned spoke by telephone with a real estate broker who previously agreed to list the property for Hornick. This broker is willing to assist the parties by confirming in writing, or through testimony, the current value of the property.
3 2

4

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

Document 117

Filed 09/18/2006

Page 5 of 6

ultimately requires them to post a supersedeas bond in an amount over and above what could reasonably be secured by the Villa Grove ranch. WHEREFORE, for the reasons set forth above, Defendants request that the Court enter an Order (proposed order submitted herewith) staying execution of the judgment in this matter pending determination of post-trial motions, and, for an additional period of thirty days thereafter. Respectfully submitted this 18th day of September, 2006. Respectfully submitted,

Allan L. Hale______________________ Allan L. Hale (#14885) HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202-6171 (720) 904-6000 Attorneys for Defendants/Counterclaimants

5

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

Document 117

Filed 09/18/2006

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of September 2006, I caused a true and correct copy of the foregoing Defendants' Forthwith Motion to Stay Judgment Pending Determination of Post-Trial Motions to be served electronically via CM/ECF System, addressed to: Erich Schwiesow, Esq. Helen Sigmond, Esq. 311 San Juan Avenue P.O. Box 1270 Alamosa, CO 81101-7195

____/s/ Ann Grossmann_________________

6