TRANSCRIPT Judge Crenshaw Aug 14 2008

8/13/2019 TRANSCRIPT Judge Crenshaw Aug 14 2008

1/22

5

10

15

20

25

1

1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUITIN THE STATE OF FLORIDA, IN ND FOR HILLSBOROUGH COUNTY2 GENERAL CIVIL DIVISION34 NEIL J. GILLESPIE,Plaint iff Case No. 05-CA-7205-vs6 Division: FBARKER, RODEMS COOK, P.A.7 a Florida corporation; andWILLIAM J. COOK,8 Defendants.-----------------------------/9

TRANSCRIPT OF EMERGENCY HEARING1112 BEFORE:1314 TAKEN AT:

1617

DATE & TIME:TRANSCRIBED BY:

1819

21222324

HONORABLE M RV CRENSHAWCircuit JudgeCourtroom 502George E. Edgecomb CourthouseTampa, Florida14 August 2008Michael J. BorsethCourt ReporterNotary Public

ORIGINALCOpy )ichael J Borseth

Court Reporter Legal Transcription(813) 598-2703


2/22

123456789

10111213 41516 7 81920222232425

2

APPEARANCES:For the Plaint i ff Via telephone)

ROBERT w. BAUER ESQUIRERobert W Bauer P.A.2815 W 13th StreetGainesville, Florida 32609352) 375-2518

NEIL J . GILLESPIE, PLAINTIFF Via telephone)For the Defendants:

RYAN C RCl>EKSBarker odems Cook P.A.400 North Ashley DriveSuite 2100Tampa, Florida 33602813) 489-1001


3/22

123456789

10111213141516171819202122232425

3

PR O C E E 0 I N G S(This t ranscript was made from a voice

recording of the home office business extensiontelephone of Neil J. Gillespie with attorney RobertW Bauer of Gainesville. Mr. Bauer cal led Mr.Gillespie on August 14, 2008, a t 3:51 p.m. toattend the hearing telephonically.)

THE COURT: All right. Counsel on the l ine,give us your name please.

MR BAUER: This is Robert Bauer, Your Honor.And I also have my cl ient , Neil Gillespie, on thel ine.

THE COURT: You can have a seat .All right. We re here on your Motion to Stay.MR BAUER: Yes Your Honor.THE COURT: o forward on your Motion to Stay.MR BAUER: Your Honor th is is an action

between the two part ies for breach of contract . I tarises out of a si tuation with a attorney/clientrelationship and a belief that there was not properexecution of that contract. I t has survivedmotions to dismiss and issues and there are s t i l lcount - - one count out tha t s staying against thelaw firm i t s e l f and i t survived and is ready tomove forward with discovery.


4/22

1234

6

789

10111213141516171819202122232425

4

In i t ia l ly my cl ient , as many individuals do,have great diff icul ty in finding people torepresent them in cases against other attorneys andhe did a lo t of pro se work on th is . He was notvery good a t t and did a lo t of things that wereimproper, incorrect . And the Court did givesanctions against him for that . However, and therewas a judgment issued on this .

The Motion to Stay was f i led and t was myunderstanding tha t there would - - we would get th ishearing scheduled before any actual collect ionprocesses proceeded on before any writs ofgarnishment were issued and before any money wasseized. Unfortunately, Mr. Rodems has chose to notrespect our motion to stay and jus t continueforward and do those. We have not had thechance -

THE COURT: Mr. Bauer, jus t a second. I needto make sure that I m understanding you, becauseth is i s Judge Barton s case.

MR. BAUER: Yes, Your Honor.THE COURT: Are you te l l ing me tha t the Motion

to Stay was called up from a hearing? Becausetha t s not what I am getting from the f i le .

MR. BAUER: No, ma am t was not called up


5/22

23456789

101213141516171819202122232425

5

for a hearing, t was jus t fi led. And we have nothad a chance to get i t called up for a hearing yet.

THE COURT: Go ahead.MR BAUER: And as best there i s s t i l l

there i s much l e f t to be done with this case. efeel i t s appropriate for the judgment i t se l f to bestayed unti l the case i s complete, because we feeli t s l ikely that we will prevail in this action anddamages will be awarded to us. Which can offsetthe punitive damages that opposing i s ent i t led to.

r believe that opposing i s attempting to usethis in a si tuat ion to attempt to make i t even morediff icul t for my client to proceed forward withthis case monetarily. And we would request thatthe Court enter a stay on this action, as also inthe writ of garnishment i t se l f we have not gottenthe pleading in time for this hearing. We haveclaim of exemptions for request for the hearing.All the money that has been secured under the writof garnishment i s Social Security money and thus,would e exempt from this . There s also a head ofhousehold claim that originally on the informationsheet was indicated there wasn t a head ofhousehold claim, but we have done a bet teraccounting of my cl ient s assets and we realize


6/22

12346789

10111213141516171819202122232425

6

that his elderly mother l iving with him - - theamount of money that he is using for her wouldqualify him for a head of household exemption.

So there is two credi t exemptions that wouldapply to my client in th is case for the writ ofgarnishment and we request simply that the - - thatin reviewing the Motion for Stay the Court considerthat issue and allow the stay to be put in place sothat we can move forward with th is case, get to af inal resolution of this . And i f there is moneytha t s ent i t led to my client then that money woulde offset by the amount currently awarded to the

defendant.MR RODEMS: Thank you Your Honor. First ,

want to make t perfect ly clearMR GILLESPIE: Hello.MR BAUER: Hello.MR GILLESPIE: I can t hear anything.MR BAUER: Hold on for me.THE COURT: You accidently got disconnected

while I was trying to turn the volume up so thatyou could hear opposing counsel. Go ahead.

MR RODEMS: Thank you Your Honor. The f i rs tpoint I would l ike to make is to address a concernby Mr. Bauer. The Final Judgment entered in favor

I


7/22

1234

789

10111213141516171819202122232425

7

of my client was entered on March 27th, 2008 byJudge Barton. The Motion for Stay that we re hereon I believe was f i led on June 9th by Mr Bauer.The way I heard his argument, there was sort ofsome implication that there was some agreement thatwe wouldn t take collection actions unt i l he gotthat set for hearing. I want to make sure tha t sclear with the Court. There was never anydiscussion whatsoever about the Motion for Stay ortabling any collection efforts . Nothing everdiscussed about that . Moreover there was neverany effor t by the pla in t i f f s counsel to set theMotion for Stay for hearing. I t jus t sat there.Then ear l ier this week when the writ of garnishmentwas served on the bank, then he f i led this requestfor an emergency hearing. And tha t s how we rehere today. And of course we thank you for yourtime, Your Honor on such short notice.

Under Florida Rule of Appellate Procedure9.310 A and B there is the procedure for obtaininga stay. With a money judgment, which is what wehave here, Rule 9.210 B provides that there can bean automatic stay without the necessity of a motionor court order by the f i l ing of a good andsufficient bond, which commonly is referred to as a


8/22

123456789

10111213141516171819202122232425

8

supersedeas bond. Mr. Gillespie has not f i ledthat.

So what he s asking for is a stay under Rule9.310 A And the Second DCA has written aboutth is . And i f I could, your Honor I would l ike tohand you a copy of the case Plat t P L A T T vsRussek Which is a t 921 So.2d 5. And in that casethe Second DC dealt with a number of things. Thef i rs t of which was could the Court - - could theCircuit Court enter a stay of execution on ajudgment under 9.310 A without imposing anyconditions whatsoever. And the Second DCA saidthat t could not. What as i t s claimed, weconcluded the t r i a l court does not have thatauthority. That s on page 7 of that decision.

And then the next issue the court consideredi s , i f the Trial Court could not stay a judgmentwithout imposing some conditions, the next questionis whether a t r i a l court could stay a judgment uponconditions that do not necessari ly guarantee theful l payment of the judgment a t the conclusion ofthe appeal.

And the Second DCA said with some hesitation:We conclude that the t r i a l court has th is authoritybut i t should be exercised with great care. And


9/22

23456789

1

1213141516171819202122232425

9

then the Court went on to say that the burden ofproof and persuasion to impose conditions that donot guarantee the full payment of the judgment a tthe conclusion of the appeal should be upon thejudgment debtor, or in th is case, Mr. Gillespie.

So a Motion for Stay under 9.310 A i s anevidentiary hearing. And Mr. Gillespie bears theburden of proving to you that you should enter astay for some reason, imposing conditions less thanguarantying ful l payment. And af ter Mr. Bauer smade his presentation he s offered you no basis fordoing this . He has made comments about the Writ ofGarnishment and what challenges they have withthat . That s a separate proceeding, Your Honorand we haven t gotten to the point yet where thatmatter would naturally corne before the Court.

In fact, when I went back to my office th isafternoon in between hearings to appear beforeJudge Levens, my secretary told me that somethinghad been faxed over. I didn t even have time tolook at i t but apparently he f i led objections tothe Writ of Garnishment. Which means that in duecourse that would be taken up by the Court. Atreal ly has no bearing on whether a stay should beimposed or not.


10/22

123456789

10111213141516171819202122232425

10

I f you look a t their Motion for Stay they givetwo reasons. nd I don t know i f you have themotion in front of you but reason paragraph 4says: Defendant will not be prejudiced by thegranting of th is Motion to Stay.

nd I would suggest, Your Honor that we wouldcertainly be prejudiced. e have a Final Judgmentthat has been issued and Mr. Gillespie iscontinuing to do operations through his bankaccount that , you know we have a judgment that hasbeen issued. Delaying us from collecting certainlywould prejudice us, jus t because i t prevents usfrom getting money that this circui t court has saidthat we re ent i t led to recover from Mr. Gillespie.

The second reason that they give is that thereare current claims in the s t i l l pending in theabove-styled action which may serve to offset thedamages awarded as far as the judgment. But tha t sreal ly no reason ei ther. Because i f they havethe right to f i le a supersedeas bond and have anautomatic stay. Then we re guaranteed payment a tthe conclusion of the case. I f the appeal issuccessful, then they will get the bond back. Butthe idea that hey, a t a further point in l i t igat ionthere may be claims that we win on, our Final


11/22

123456789

10111213141516171819202122232425

11

Judgment i s final as of right now And i t sspeculative to assume that they re going to win onanything and there s nothing in any of the rulesthat has a good basis or any basis to stay theproceedings because of the fact that there scontinuing claim in the case. Clearly i f theauthors of the rules had fe l t that staying ajudgment in a case where multiple claims were goingon unti l a l l of the judgments were final , the Courtcould have easi ly written that . So they haven toffered you any proof or any reasons or anypersuasions, they haven t suggested to you anyconditions that they would be willing to acceptshort of guaranteeing full payment that would putmy client in a protective position. And in thePlat t case that I referred to earl ier , the courtsaid the court noted that staying a case whenthe party who owes the debt might have assets wouldcertainly prejudice the judgment holder by notproviding them with protection to the extent thatthat would be income.

Now the one thing that the Second DCA said,even with the abi l i ty to issue conditions and evenwith using great care, i t would be reasonable forthe Circuit Court before entering a stay under


12/22

123456789

10111213141516171819202122232425

12

9.310 under any circumstances, to require thejudgment debtor to submit to a deposition in aideof execution and a production of financial recordsbefore the entry of such a stay. In other words,before you get to the point of having a stayMr Gillespie would have to come in and we wouldhave to have a chance to fully examine him.

e have received his Fact Information Sheet,which is required by the Florida Rules of CivilProcedure in the judgment, but that doesn t provideus with enough information. We have not had achance to depose him yet.

So even i f the Court was inclined to considerimposing some stay under 9.310(a) we would ask thatthe suggestion by the Second DCA and that we begiven an opportunity before the stay is entered toa ful l deposition.

The other thing I would l ike to point out,Your Honor is that even i f a stay is issued, l lthat does is i t puts a brake on l l the action.The garnishment has already occurred. Once theCourt issues a stay i t doesn t what s the wordI m looking for? I have a case here from theSecond DCA Florida Steel Corporation vs.Enterprises. And what i t says is that


13/22

235

6789

10

1213141516171819202122232425

13

MR. BAUER: Could I have the ci ta t ion, please.MR. RODEMS: Yes. I t is 332 So.2d 663 Second

DCA 1976. The stay on a - - of execution doesn tdissolve the writ, t stays the proceedings forcollection. So wherever we are today we re frozen.So therefore, he wouldn t even be able to goforward with his objection to the writ ofgarnishment. I t would be frozen unt i l the appealwas concluded. And for that reason th is real lyi sn t even an emergency, because he - - whetheryou - - i f you impose the stay, his bank account iss t i l l going to be locked up unti l the appellateproceedings are concluded under th is case law. I fyou don t impose a stay a garnishment proceedingcan continue to occur. But he painted this as anemergency. We don t feel that he s met the basisfor obtaining a stay under Florida Rule ofAppellate Procedure 9.310. Certainly has notoffered any evidence and hasn t given the Courtanything to suggest that imposing a stay withoutconditions guaranteeing ful l payment would bereasonable under the circumstances.

Mr. Gillespie hasn t even tes t i f ied that hedoesn t have the means to sat isfy the judgment. Sofor al l we know Your Honor and again, because we


14/22

123456789

10111213141516171819202122232425

14

haven t taken his deposition, Mr. Gillespie couldbe s i t t ing on enough assets to pay th is judgment.And i f the Court imposed the stay he could disposeof those assets in the interim and we would - - mycl ients would be severely prejudiced fromrecovering whatsoever. So we would ask you to denythe motion to stay.

THE COURT: Mr. Bauer, according to the courtf i le that I m looking at , the Final Judgment lSentered in March the Notice of Appeal was f i led inApril and no Motion to Stay the action is f i ledunt i l June. Why the delay?

MR BAUER: Your Honor we had some issueswithin - - part of t was my fault . Actually, twas our off ice s faul t and I have actuallyforwarded something to the Court and put in thef i le specifically stated as that . Is that wethought that the pla in t i f f had a copy of theinformation sheet to be f i led and had that to bedelivered. I t was not delivered to us to be f i ledwith the Court.

With a l l of those issues pending t didn tmake any sense to be f i l ing a Motion to Stay whilethere were s t i l l the discovery issue of theinformation sheet being f i led. Because there was


15/22

23456789

10111213141516171819202122232425

15

nothing for the defendant to be proceeding on inthe f i rs t place, they didn t have the informationor any of the numbers or anything to go forward onso they weren t able to.

We did f i le the Motion to Stay shortlythereafter on that. And t has been my practiceand the practice in my community and my error innot realizing i t would be different there, iswhenever a Motion to Stay has been f i led thecollection actions don t proceed on unti l af terthat motion has been heard. We have extended thatcourtesy and practice that way since I ve star ted.Admittedly, I ve only been practicing for threeyears, but in a l l si tuations that I haveencountered tha t s been the practice with i t .

I did not s tate or attempt to imply that therewas any agreement with Mr Rodems that they wouldstay. I didn t say that. I simply said i t was myunderstanding that this is what would happen.

s far as his inabil i ty to object to the writi t se l f , that doesn t make any sense. Simplybecause there was a stay on - - actually on theexecution of the writ, logically that has nothingto do with whether or not your abi l i ty to do anobjection to the writ i t se l f and say, look, I m


16/22

23456789

10111213141516171819202122232425

16

exempt from this . So t does s t i l l make sense tostay the underlying judgment and say, we need tostop a t this point.

e are willing to take any other possibleexceptions that the Court requires to make sure.I f the Court wants to impose the requirement thatMr. Gillespie submit to a deposition for thefinancial purposes, yes. I think tha t s perfectlyreasonable and goes along with the case law. ewill do those things. I f the Court wants to set abond amount that is reasonable, we will happilycomply with whatever the Court requires.

We re simply asking that re l ief from th ispoint so that we can proceed forward with the caseand honestly quit having these distractions frommoving forward with the underlying case. There hasbeen a lo t of attempts there was problems withthat when Mr. Gillespie was pro se and I have corneon board and attempted to have a more focusedapproach. e and Mr. Rodems did in i t ia l ly havethat professional discourse and were able to dothat . Unfortunately, there has been recently do toapparently some rulings that we have received,Mr. Rodems has, you know decided to take a fullnuclear blas t approach instead of us trying to work


17/22

23456789

10111213141516171819202122232425

17

this out in a professional manner. I t is mymistake for s i t t ing back and giving him theopportunity to take this ful l blast attack.

I think i t s appropriate for the Court toissue a stay, that any reasonable exceptions thatthe Court wants we will be happy to comply with andtha t s what we ask for.

THE COURT: What precludes your cl ient fromopposing a stay in accordance with the rule in theform of a supersedeas bond?

MR BAUER: We don t have a problem with that ,Your Honor The biggest lssue with this is that wewere caught unaware in a si tuation where therewasn t the Court that we could go to dealing withthis si tuation and we needed because of what wasgoing on because of the money that he had and wasbeing seized from the bank and everything was beingclosed up, we needed to take just as quick a returnapproach; cal l the Court, get their assistance,have this stopped. Whatever bond that the Courtrequires we will get posted.

THE COURT: My ruling is then that he post asupersedeas bond in accordance with the appellaterules.

MR BAUER: In the


18/22

234

6

789

10111213141516171819202122232425

18

THE COURT: His posting of that bond then theaction will be stayed.

MR BAUER: And the amount of that bond is ,Your Honor? The requirement is an amount that sreasonable. That doesn t necessarily mean thati t s the full amount. So we need to know what theamount is for us to be able to post that.

THE COURT: Well, in the absence of anevidentiary hearing for which th is matter is notset , today I would have to require that he post asupersedeas bond in the amount of the judgmentpending the matter being set for an evidentiaryhearing in front of Judge Barton.

MR BAUER: And Your Honor we would requestthat the Court stay th is action for five days toallow us to get that done. I m not in Tampa. I t sgoing to take some logist ic issues to get thatdone. And we request that the Court give us areasonable amount of time to effectuate that beforeany further actions are taken against my client .

MR RODEMS: I f Mr. Bauer is representing thathe will post a bond within five days we would agreeto a stay for five days to post a bond. Calenderor business days? I f he representing to the Courthe s going to post a bond, tha t s fine with me.


19/22

2346789

10111213141516171819202122232425

19

THE COURT: I will approve a stay based uponthat representation Mr. Bauer that you will posta supersedeas bond in according with the appellaterules within are we talking five calendar daysor five business days?

MR BAUER: Well of course Your Honor i f Icould get business days I would prefer that .

THE COURT: All right. Well then the bondmust e posted no l a te r than Thursday which isno la ter than the close of the day on ThursdayAugust 21st.

MR RODEMS: Your Honor I would offer thistoo because I am familiar with some of thedif f icul t ies in obtaining a bond. f he can postthe cash equivalent with a third party agent.

THE COURT: Did you hear that Mr. Bauer?MR BAUER: That is what we would intend to

do.MR RODEMS: And I am willing to work with him

to find an escrow agent that we can agree to butin l ieu of going out and hiring a bonding companyand paying them the money i f there is u.s.currency posted with a third party escrow agent wecan agree on who that would be. t could beanother attorney or something in a t rus t account.


20/22

123456

89

10111213141516171819202122232425

20

I would suggest that would be acceptable to thedefendants in l ieu of the actual posting of a bond.Provided i t can be done within the same time frame.

THE COURT: The Court will approve any ofthose alternatives to posting an off ic ia lsupersedeas that the part ies agree to. My onlyrequirement is that i t be done within the timeframe on or before the close of business on August31st, which is a Thursday, a t five o clock. And i fyou will submit me an order to that affect then thematter will be stayed for that short period.

MR RODEMS: I m sorry, what day did you say,Your Honor? I thought you said August 31st.

THE COURT: August 21st, I stand corrected.Yeah August the 21st is the five business days.

MR BAUER: And I assume Your Honor thatdirection to submit the order, that was directed tome?

MR RODEMS: I d be happy to do i t , YourHonor.

THE COURT: Mr. Rodems indicated that he willsubmit the order, counsel.

MR RODEMS: I l l send t to Mr. Bauer bye-mail. He l l have that by tomorrow a t noon.

MR BAUER: Thank you.


21/22

123456789

10111213141516171819202122232425

21

THE COURT: Anything fur ther , gentlemen?MR BAUER: No, rna' am.THE COURT: All r igh t . That 's a l l .MR RODEMS: Thank you, Your Honor.

(Whereupon, the above hearing wasconcluded. )


22/22

123456789

10111213141516171819202122232425

22

C-E-R-T-I-F-I-C-A-T-ESTATE OF FLORIDACOUNTY OF HILLSBOROUGH

I Michael J. Borseth Court Reporterfor the Circuit Court of the Thirteenth JudicialCircuit of the State of Florida in and forHillsborough County O HEREBY CERTIFY that I wasauthorized to and did transcribe a tape/CD recording ofthe proceedings and evidence in the above-styled causeas stated in the caption hereto and that the foregoingpages consti tute an accurate transcription of the taperecording of said proceedings and evidence to the bestof my abil i ty .

IN WITNESS WHEREOF I have hereunto set my handin the City of Tampa County of Hillsborough State ofFlorida th is 1 November 2008.

MICHAEL J. BORSETH Court Reporter

Documents

TRANSCRIPT Judge Crenshaw Aug 14 2008