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SCHREIBER v. KELLOGG

December 30, 1993

PALMER K. SCHREIBER
v.
CHRISTOPHER G. KELLOGG



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 Plaintiff Palmer K. Schreiber, an attorney, instituted this diversity action to collect fees and costs from his former client, Christopher Kellogg. On August 3, 1993, this Court, after a non-jury trial, entered judgment in favor of plaintiff and against defendant in the amount of $ 512,863.76. The court denied defendant's post-trial motions on November 19, 1993. Before the court is defendant's motion for a stay of the judgment pending appeal in accordance with Rule 62(d) of the Federal Rules of Civil Procedure. Also before the court is plaintiff's motion to register judgment pursuant to 28 U.S.C. ยง 1963.

 Rule 62(d) provides in relevant part:

 
When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court.

 Defendant asks the court to waive the requirement of a supersedeas bond based on the alleged sufficiency of his assets to satisfy the judgment, the financial hardship entailed in obtaining a bond, and his promise not to alienate or encumber his assets. *fn1"

 The purpose of the supersedeas bond is to preserve the status quo during the pendency of an appeal. It protects the winning party from the possibility of loss resulting from the delay in execution. See e.g., Federal Prescription Services v. American Pharmaceutical Asso., 205 U.S. App. D.C. 47, 636 F.2d 755 (D.C. Cir. 1980). "[A] plaintiff who has won in the trial court should not be put to the expense of defending his judgment on appeal unless the defendant takes reasonable steps to assure that the judgment will be paid if it is affirmed." Lightfoot v. Walker, 797 F.2d 505, 507 (7th Cir. 1986). The bond should normally be sufficient in amount to satisfy the judgment in full, plus interest and costs. Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979); U.S. v. Kurtz, 528 F. Supp. 1113, 1114 (E.D. Pa. 1981).

 The Court of Appeals for this Circuit has not addressed the question of whether the district court has discretion to excuse a judgment debtor from posting a bond pending appeal. It is the predominant and more persuasive view that Rule 62(d) permits the district court to waive or reduce the bond requirement. See e.g., Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988); Poplar Grove, 600 F.2d at 1191 (5th Cir. 1979); U.S. v. Kurtz, 528 F. Supp. 1113 (E.D. Pa. 1981); C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F. Supp. 501, 520 (E.D. Pa. 1973). However, the court should exercise the discretion to require less than a full supersedeas bond only in "extraordinary circumstances." Kurtz at 1115, C. Albert Sauter Co. at 520, Poplar Grove at 1191. The judgment debtor bears the burden of demonstrating objectively the need for departure from the usual requirement of full security by showing that posting a full bond is impossible or impracticable. Kurtz, 528 F. Supp. at 1115; Poplar Grove, 600 F.2d at 1191; Federal Prescription Services, 636 F.2d at 760. In Sauter, for example, Judge Broderick found that the defendants had insufficient assets to satisfy the judgment of $ 1,200,000 plus counsel fees and costs, were unable to obtain a full supersedeas bond, and that execution would probably render the defendant company and the individual defendants insolvent. Consequently, he ordered as alternative security that certain cash and securities be placed in escrow. He also restricted the payment of debts from corporate funds and required defendants to post a $ 100,000 bond.

 At least one court has waived the bond requirement without a showing of hardship to the judgment debtor or others where the debtor's financial soundness was sufficient to guarantee payment of the judgment. In Federal Prescription Service, 636 F.2d at 760, the Court of Appeals for the District of Columbia affirmed the district court's order granting a stay without a bond where both parties had appealed on the merits, the documented net worth of the judgment debtor was approximately 47 times greater than the amount of the damages award and the judgment debtor was a long time resident of the rendering district.

 Defendant asserts in his motion that the sufficiency of his assets renders a supersedeas bond unnecessary. However he further states that those assets are "non-liquid" and that "requiring defendant to post a bond in the full amount of this judgment is tantamount to ordering him to pay the judgment itself (given the local bonding company requirements) and that will work an enormous penalty upon defendant." While defendant has taken an affidavit that the factual statements in the motion are true, he provides little if any factual detail to support his conclusory statements.

 The only financial statement of the defendant which this court has before it is dated March 31, 1993, and was provided by the plaintiff. According to that document, now almost nine months old, defendant, a resident of Florida, has a net worth of $ 1,146,121. He has cash totalling $ 20,723. Defendant also has a gun collection worth $ 200,000, a furniture and art collection worth $ 200,000 and miscellaneous other personal property worth $ 31,000. He owns a home in Palm Beach, Florida with a value of $ 1,250,000. The financial statement discloses a mortgage payable on this property to Southeast Bank, N.A. in the amount of $ 350,000, and a mortgage payable to First Union Bank in the amount of $ 493,292. Defendant apparently paid off the First Union Bank mortgage sometime after the financial statement was prepared. Defendant has a partnership interest in an entity called Mill Pond Investment Co. worth $ 300,000. He has provided no information about the liquidity or availability of this investment to satisfy any judgment.

 Defendant is a current 1/12 income beneficiary of a trust under the will of Rodman Wanamaker and a contingent remainderman as to a fraction of the trust corpus which exceeds $ 120 million. The principal amount of the trust, however, will not be distributed until twenty-one years after the death of Rodman Wanamaker's last surviving grandchild, who is still living. According to the financial statement, defendant's interest in the Rodman Wanamaker Trust is not includable as an asset "under applicable accounting principles." Both parties agree that a spendthrift provision protects Mr. Kellogg's income from this trust, which amounts to $ 31,500 per month.

 Defendant is also the sole non-contingent beneficiary as to income and principal of a trust created by his mother, Fernanda Munn Kellogg, valued at approximately $ 532,858. Defendant has provided the court with no information regarding his income from this trust or his ability to withdraw money from the trust corpus. The court notes, however, that the trust agreement contains a spendthrift provision providing that the interest of any beneficiary "is not subject to any form of pledge, assignment, sale, attachment, garnishment, execution, or other form of transfer."

 Although the total value of defendant's assets appears to exceed the amount of the judgment, plaintiff may not be able to reach a substantial portion of those assets. As stated above, spendthrift provisions protect defendant's income from both the Rodman Wanamaker Trust and the Fernanda Munn Kellogg Trust. These provisions probably prevent plaintiff from satisfying the judgment with trust assets. In addition, plaintiff contends and defendant does not dispute that Florida's Homestead exemption may prevent plaintiff from reaching defendant's real property. *fn2" Defendant in fact increased his net value in this exempt property when he paid off one of its ...


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