Transcript Judge Crenshaw Aug 14 2008

Neil J Gillespie v Barker, Rodems & Cook, PA et al, Case No. 05-CA-7205, Hillsborough Co. Florida, Thirteenth Judicial Circuit
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1 1 2 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN THE STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY GENERAL CIVIL DIVISION 3 4 5 NEIL J. GILLESPIE, Plaintiff, Case No. 05-CA-7205 -vsDivision: "F" BARKER, RODEMS & COOK, P.A. a Florida corporation; and WILLIAM J. COOK, Defendants. 6 7 8 9 -----------------------------/ TRANSCRIPT OF EMERGENCY HEARING 10 11 12 13 BEFORE: TAKEN AT: HONORABLE MARVA CRENSHAW Circuit Judge Courtroom 502 George E. Edgecomb Courthouse Tampa, Florida 14 August 2008 14 15 DATE & TIME: 16 17 18 19 TRANSCRIBED BY: Michael J. Borseth Court Reporter Notary Public 20 21 22 23 24 25 Michael J. Borseth (ORIGINAL (COpy Court Reporter/Legal Transcription (813) 598-2703 ~) ) 2 1 2 3 4 APPEARANCES: For the Plaintiff: (Via telephone) ROBERT w. BAUER, ESQUIRE Robert W. Bauer, P.A. 2815 NW 13th Street 5 6 7 Gainesville, Florida 32609 (352) 375-2518 NEIL J. GILLESPIE, PLAINTIFF (Via telephone) For the Defendants: 8 9 RYAN C. RCl>EKS, ~ Barker, Rodems & Cook, P.A. 10 11 400 North Ashley Drive Suite 2100 Tampa, Florida 33602 (813) 489-1001 c 12 13 14 15 16 17 18 19 20 21 22 23 C 24 25 3 1 2 3 4 5 6 7 8 9 10 11 PRO C E E 0 I N G S (This transcript was made from a voice recording of the home office business extension telephone of Neil J. Gillespie with attorney Robert W. Bauer of Gainesville. Mr. Bauer called Mr. Gillespie on August 14, 2008, at 3:51 p.m. to attend the hearing telephonically.) THE COURT: All right. Counsel on the line, give us your name, please. MR. BAUER: This is Robert Bauer, Your Honor. And I also have my client, Neil Gillespie, on the line. THE COURT: All right. MR. BAUER: THE COURT: MR. BAUER: You can have a seat. We're here on your Motion to Stay. Yes, Your Honor. Go C 12 13 14 15 16 17 18 19 20 21 22 23 24 25 forward on your Motion to Stay. Your Honor, this is an action It between the two parties for breach of contract. arises out of a situation with a attorney/client relationship and a belief that there was not proper execution of that contract. It has survived motions to dismiss and issues and there are still count -- one count out that's staying against the law firm itself and it survived and is ready to move forward with discovery. 4 1 Initially my client, as many individuals do, have great difficulty in finding people to represent them in cases against other attorneys and he did a lot of pro se work on this. He was not 2 3 4 5 6 very good at it and did a lot of things that were improper, incorrect. And the Court did give However, and there 7 sanctions against him for that. was a judgment issued on this. 8 9 The Motion to Stay was filed and it was my understanding that there would -- we would get this hearing scheduled before any actual collection processes proceeded on before any writs of garnishment were issued and before any money was seized. Unfortunately, Mr. Rodems has chose to not 10 11 12 13 14 15 16 17 18 respect our motion to stay and just continue forward and do those. chance -THE COURT: We have not had the Mr. Bauer, just a second. I need 19 20 21 22 to make sure that I'm understanding you, because this is Judge Barton's case. MR. BAUER: THE COURT: Yes, Your Honor. Are you telling me that the Motion Because 23 to Stay was called up from a hearing? c 24 25 that's not what I am getting from the file. MR. BAUER: No, ma' am, it was not called up 5 1 for a hearing, it was just filed. And we have not 2 3 4 5 had a chance to get it called up for a hearing yet. THE COURT: MR. BAUER: Go ahead. And as best -- there is still We there is much left to be done with this case. 6 7 feel it's appropriate for the judgment itself to be stayed until the case is complete, because we feel it's likely that we will prevail in this action and damages will be awarded to us. Which can offset 8 9 10 11 the punitive damages that opposing is entitled to. r believe that opposing is attempting to use this in a situation to attempt to make it even more difficult for my client to proceed forward with this case monetarily. And we would request that 12 13 14 15 16 17 18 19 the Court enter a stay on this action, as also in the writ of garnishment itself we have not gotten the pleading in time for this hearing. We have claim of exemptions for request for the hearing. All the money that has been secured under the writ of garnishment is Social Security money, and thus, would be exempt from this. There's also a head of 20 21 22 household claim that originally on the information sheet was indicated there wasn't a head of household claim, but we have done a better accounting of my client's assets and we realize 23 24 25 6 1 that his elderly mother living with him -- the amount of money that he is using for her would qualify him for a head of household exemption. So there is two credit exemptions that would apply to my client in this case for the writ of garnishment and we request simply that the -- that in reviewing the Motion for Stay the Court consider that issue and allow the stay to be put in place so that we can move forward with this case, get to a final resolution of this. And if there is money 2 3 4 5 6 7 8 9 10 11 that's entitled to my client then that money would be offset by the amount currently awarded to the 12 13 14 15 16 17 defendant. MR. RODEMS: Thank you, Your Honor. First, I want to make it perfectly clear MR. GILLESPIE: MR. BAUER: Hello. Hello. I can't hear anything. 18 19 20 21 22 MR. GILLESPIE: MR. BAUER: THE COURT: Hold on for me. You accidently got disconnected while I was trying to turn the volume up so that you could hear opposing counsel. MR. RODEMS: Go ahead. The first c 23 24 25 Thank you, Your Honor. point I would like to make is to address a concern by Mr. Bauer. The Final Judgment entered in favor 7 1 of my client was entered on March 27th, 2008, by Judge Barton. The Motion for Stay that we're here 2 3 4 5 on I believe was filed on June 9th by Mr. Bauer. The way I heard his argument, there was sort of some implication that there was some agreement that we wouldn't take collection actions until he got that set for hearing. clear with the Court. I want to make sure that's There was never any 6 7 8 9 discussion whatsoever about the Motion for Stay or tabling any collection efforts. discussed about that. Nothing ever 10 11 Moreover, there was never 12 any effort by the plaintiff's counsel to set the Motion for Stay for hearing. It just sat there. 13 14 15 16 Then earlier this week when the writ of garnishment was served on the bank, then he filed this request for an emergency hearing. here today. And that's how we're 17 18 19 20 21 22 And of course we thank you for your time, Your Honor, on such short notice. Under Florida Rule of Appellate Procedure 9.310 A and B there is the procedure for obtaining a stay. With a money judgment, which is what we have here, Rule 9.210 B provides that there can be an automatic stay without the necessity of a motion or court order by the filing of a good and sufficient bond, which commonly is referred to as a 23 24 25 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 supersedeas bond. that. Mr. Gillespie has not filed So what he's asking for is a stay under Rule 9.310 A. this. And the Second DCA has written about And if I could, your Honor, I would like to hand you a copy of the case Platt, P-L-A-T-T vs. Russek. Which is at 921 So.2d 5. And in that case The the Second DCA dealt with a number of things. first of which was, could the Court -- could the Circuit Court enter a stay of execution on a judgment under 9.310 A without imposing any conditions whatsoever. that it could not. And the Second DCA said What -- as it's claimed, we concluded the trial court does not have that authority. That's on page 7 of that decision. And then the next issue the court considered is, if the Trial Court could not stay a judgment without imposing some conditions, the next question is whether a trial court could stay a judgment upon conditions that do not necessarily guarantee the full payment of the judgment at the conclusion of the appeal. And the Second DCA said with some hesitation: We conclude that the trial court has this authority but it should be exercised with great care. And C 24 25 9 1 then the Court went on to say that the burden of proof and persuasion to impose conditions that do not guarantee the full payment of the judgment at the conclusion of the appeal should be upon the judgment debtor, or in this case, Mr. Gillespie. So a Motion for Stay under 9.310 A is an evidentiary hearing. And Mr. Gillespie bears the 2 3 4 5 6 7 8 burden of proving to you that you should enter a stay for some reason, imposing conditions less than guarantying full payment. And after Mr. Bauer's 9 10 11 made his presentation he's offered you no basis for doing this. He has made comments about the Writ of 12 13 14 Garnishment and what challenges they have with that. That's a separate proceeding, Your Honor, 15 16 17 18 and we haven't gotten to the point yet where that matter would naturally corne before the Court. In fact, when I went back to my office this afternoon in between hearings to appear before Judge Levens, my secretary told me that something had been faxed over. I didn't even have time to 19 20 21 22 look at it, but apparently he filed objections to the Writ of Garnishment. Which means that in due At 23 24 25 course that would be taken up by the Court. really has no bearing on whether a stay should be imposed or not. 10 1 2 3 4 5 6 7 8 9 10 11 If you look at their Motion for Stay they give two reasons. And I don't know if you have the motion in front of you, but reason -- paragraph 4 says: Defendant will not be prejudiced by the granting of this Motion to Stay. And I would suggest, Your Honor, that we would certainly be prejudiced. We have a Final Judgment that has been issued and Mr. Gillespie is continuing to do operations through his bank account that, you know, we have a judgment that has been issued. Delaying us from collecting certainly C 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would prejudice us, just because it prevents us from getting money that this circuit court has said that we're entitled to recover from Mr. Gillespie. The second reason that they give is that there are current claims in the still pending -- in the above-styled action which may serve to offset the damages awarded as far as the judgment. really no reason either. Because if But that's they have the right to file a supersedeas bond and have an automatic stay. Then we're guaranteed payment at If the appeal is But the conclusion of the case. successful, then they will get the bond back. the idea that hey, at a further point in litigation there may be claims that we win on, our Final 11 1 2 3 4 5 6 7 8 9 10 11 Judgment is final as of right now. And it's speculative to assume that they're going to win on anything and there's nothing in any of the rules that has a good basis or any basis to stay the proceedings because of the fact that there's continuing claim in the case. Clearly if the authors of the rules had felt that staying a judgment in a case where multiple claims were going on until all of the judgments were final, the Court could have easily written that. So they haven't offered you any proof or any reasons or any persuasions, they haven't suggested to you any conditions that they would be willing to accept short of guaranteeing full payment that would put my client in a protective position. And in the ~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Platt case that I referred to earlier, the court said -- the court noted that staying a case when the party who owes the debt might have assets would certainly prejudice the judgment holder by not providing them with protection to the extent that that would be income. Now, the one thing that the Second DCA said, even with the ability to issue conditions and even with using great care, it would be reasonable for the Circuit Court before entering a stay under 12 1 2 3 4 5 6 7 8 9 10 11 9.310 under any circumstances, to require the judgment debtor to submit to a deposition in aide of execution and a production of financial records before the entry of such a stay. In other words, before you get to the point of having a stay Mr. Gillespie would have to come in and we would have to have a chance to fully examine him. We have received his Fact Information Sheet, which is required by the Florida Rules of Civil Procedure in the judgment, but that doesn't provide us with enough information. chance to depose him yet. So even if the Court was inclined to consider imposing some stay under 9.310(a) we would ask that the suggestion by the Second DCA and that we be given an opportunity before the stay is entered to a full deposition. The other thing I would like to point out, Your Honor, is that even if a stay is issued, all that does is it puts a brake on all the action. The garnishment has already occurred. Once the We have not had a C 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court issues a stay it doesn't -- what's the word I'm looking for? I have a case here from the Second DCA, Florida Steel Corporation vs. Enterprises. And what it says is that -- 13 1 MR. BAUER: MR. RODEMS: DCA, 1976. Could I have the citation, please. Yes. It is 332 So.2d 663, Second 2 3 4 5 The stay on a -- of execution doesn't dissolve the writ, it stays the proceedings for collection. So wherever we are today we're frozen. 6 7 So therefore, he wouldn't even be able to go forward with his objection to the writ of garnishment. was concluded. It would be frozen until the appeal And for that reason this really 8 9 10 11 isn't even an emergency, because he -- whether you -- if you impose the stay, his bank account is still going to be locked up until the appellate proceedings are concluded under this case law. you don't impose a stay a garnishment proceeding can continue to occur. emergency. But he painted this as an If 12 13 14 15 16 17 18 We don't feel that he's met the basis for obtaining a stay under Florida Rule of Appellate Procedure 9.310. Certainly has not 19 20 21 22 offered any evidence and hasn't given the Court anything to suggest that imposing a stay without conditions guaranteeing full payment would be reasonable under the circumstances. Mr. Gillespie hasn't even testified that he doesn't have the means to satisfy the judgment. So 23 24 25 for all we know, Your Honor, and again, because we 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 haven't taken his deposition, Mr. Gillespie could be sitting on enough assets to pay this judgment. And if the Court imposed the stay he could dispose of those assets in the interim and we would -- my clients would be severely prejudiced from recovering whatsoever. the motion to stay. THE COURT: So we would ask you to deny Mr. Bauer, according to the court lS file that I'm looking at, the Final Judgment entered in March, the Notice of Appeal was filed in April and no Motion to Stay the action is filed until June. Why the delay? Your Honor, we had some issues Actually, it MR. BAUER: within -- part of it was my fault. was our office's fault and I have actually forwarded something to the Court and put in the file specifically stated as that. Is that we thought that the plaintiff had a copy of the information sheet to be filed and had that to be delivered. It was not delivered to us to be filed with the Court. With all of those issues pending it didn't make any sense to be filing a Motion to Stay while there were still the discovery issue of the information sheet being filed. Because there was C 24 25 15 1 nothing for the defendant to be proceeding on in the first place, they didn't have the information or any of the numbers or anything to go forward on so they weren't able to. We did file the Motion to Stay shortly thereafter on that. And it has been my practice 2 3 4 5 6 7 8 and the practice in my community and my error in not realizing it would be different there, is whenever a Motion to Stay has been filed the collection actions don't proceed on until after that motion has been heard. We have extended that 9 10 11 12 13 courtesy and practice that way since I've started. Admittedly, I've only been practicing for three years, but in all situations that I have encountered that's been the practice with it. I did not state or attempt to imply that there was any agreement with Mr. Rodems that they would stay. I didn't say that. I simply said it was my 14 15 16 17 18 19 20 understanding that this is what would happen. As far as his inability to object to the writ itself, that doesn't make any sense. Simply 21 22 23 24 25 because there was a stay on -- actually on the execution of the writ, logically that has nothing to do with whether or not your ability to do an objection to the writ itself and say, look, I'm 16 1 exempt from this. So it does still make sense to 2 3 4 stay the underlying judgment and say, we need to stop at this point. We are willing to take any other possible exceptions that the Court requires to make sure. If the Court wants to impose the requirement that Mr. Gillespie submit to a deposition for the financial purposes, yes. I think that's perfectly We 5 6 7 8 9 reasonable and goes along with the case law. will do those things. 10 11 If the Court wants to set a bond amount that is reasonable, we will happily comply with whatever the Court requires. We're simply asking that relief from this point so that we can proceed forward with the case and honestly quit having these distractions from moving forward with the underlying case. There has 12 13 14 15 16 17 18 19 20 21 22 been a lot of attempts -- there was problems with that when Mr. Gillespie was pro se and I have corne on board and attempted to have a more focused approach. Me and Mr. Rodems did initially have that professional discourse and were able to do that. Unfortunately, there has been recently do to 23 24 25 apparently some rulings that we have received, Mr. Rodems has, you know, decided to take a full nuclear blast approach instead of us trying to work 17 1 this out in a professional manner. It is my 2 3 4 mistake for sitting back and giving him the opportunity to take this full blast attack. I think it's appropriate for the Court to issue a stay, that any reasonable exceptions that the Court wants we will be happy to comply with and that's what we ask for. THE COURT: What precludes your client from 5 6 7 8 9 opposing a stay in accordance with the rule in the form of a supersedeas bond? MR. BAUER: Your Honor. We don't have a problem with that, 10 11 12 13 The biggest lssue with this is that we were caught unaware in a situation where there wasn't the Court that we could go to dealing with this situation and we needed -- because of what was going on because of the money that he had and was being seized from the bank and everything was being closed up, we needed to take just as quick a return approach; call the Court, get their assistance, have this stopped. Whatever bond that the Court 14 15 16 17 18 19 20 21 22 23 requires we will get posted. THE COURT: My ruling is then that he post a supersedeas bond in accordance with the appellate rules. MR. BAUER: In the -- 24 25 18 1 THE COURT: His posting of that bond then the 2 3 4 5 6 action will be stayed. MR. BAUER: Your Honor? reasonable. And the amount of that bond is, The requirement is an amount that's That doesn't necessarily mean that So we need to know what the it's the full amount. 7 amount is for us to be able to post that. THE COURT: Well, in the absence of an 8 9 evidentiary hearing for which this matter is not set, today I would have to require that he post a supersedeas bond in the amount of the judgment pending the matter being set for an evidentiary hearing in front of Judge Barton. MR. BAUER: And Your Honor, we would request 10 11 12 13 14 15 16 17 18 that the Court stay this action for five days to allow us to get that done. I'm not in Tampa. It's going to take some logistic issues to get that done. And we request that the Court give us a 19 20 21 22 23 24 25 reasonable amount of time to effectuate that before any further actions are taken against my client. MR. RODEMS: If Mr. Bauer is representing that he will post a bond within five days we would agree to a stay for five days to post a bond. or business days? Calender If he representing to the Court he's going to post a bond, that's fine with me. 19 1 THE COURT: I will approve a stay based upon 2 3 4 5 that representation, Mr. Bauer, that you will post a supersedeas bond in according with the appellate rules within -- are we talking five calendar days or five business days? MR. BAUER: Well, of course, Your Honor, if I 6 7 could get business days I would prefer that. THE COURT: All right. Well, then the bond 8 9 10 must be posted no later than Thursday, which is no later than the close of the day on Thursday, August 21st. MR. RODEMS: Your Honor, I would offer this, 11 12 13 14 15 16 17 18 19 20 too, because I am familiar with some of the difficulties in obtaining a bond. If he can post the cash equivalent with a third party agent. THE COURT: MR. BAUER: do. MR. RODEMS: And I am willing to work with him Did you hear that, Mr. Bauer? That is what we would intend to to find an escrow agent that we can agree to, but in lieu of going out and hiring a bonding company and paying them the money, if there is 21 22 23 u.s. currency posted with a third party escrow agent, we can agree on who that would be. It could be 24 25 another attorney or something in a trust account. 20 1 2 3 4 5 6 7 I would suggest that would be acceptable to the defendants in lieu of the actual posting of a bond. Provided it can be done within the same time frame. THE COURT: The Court will approve any of those alternatives to posting an official supersedeas that the parties agree to. My only requirement is that it be done within the time frame on or before the close of business on August 31st, which is a Thursday, at five o'clock. And if 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 you will submit me an order to that affect then the matter will be stayed for that short period. MR. RODEMS: Your Honor? I'm sorry, what day did you say, I thought you said August 31st. August 21st, I stand corrected. THE COURT: Yeah, August the 21st is the five business days. MR. BAUER: And I assume, Your Honor, that direction to submit the order, that was directed to me? MR. RODEMS: Honor. THE COURT: Mr. Rodems indicated that he will I'd be happy to do it, Your submit the order, counsel. MR. RODEMS: e-mail. I'll send it to Mr. Bauer by ~ 24 25 He'll have that by tomorrow at noon. Thank you. MR. BAUER: 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 THE COURT: MR. BAUER: THE COURT: MR. RODEMS: Anything further, gentlemen? No, rna' am. All right. That's all. Thank you, Your Honor. (Whereupon, the above hearing was concluded. ) C 24 25 22 1 2 3 4 5 6 7 8 9 10 11 STATE OF FLORIDA C-E-R-T-I-F-I-C-A-T-E COUNTY OF HILLSBOROUGH I, Michael J. Borseth, Court Reporter for the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County, DO HEREBY CERTIFY, that I was authorized to and did transcribe a tape/CD recording of the proceedings and evidence in the above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute an accurate transcription of the tape recording of said proceedings and evidence, to the best of my ability. IN WITNESS WHEREOF, I have hereunto set my hand in the City of Tampa, County of Hillsborough, State of Florida, this 1 November 2008. MICHAEL J. BORSETH, Court Reporter C 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -