Baker v. Bennett
| Decision Date | 03 March 1995 |
| Citation | 660 So.2d 980 |
| Parties | Leon C. BAKER v. J.R. BENNETT and Laura Bennett. 1931768. |
| Court | Alabama Supreme Court |
John D. Snodgrass of Balch & Bingham, Huntsville, for appellant.
J. Timothy Francis and James L. North of James L. North & Associates, John W. Haley and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellees.
The defendant/appellant, Leon C. Baker, has filed a motion in his pending appeal asking this Court to grant a stay of proceedings on appeal without requiring him to post a supersedeas bond. The case involves the plaintiffs' attempt to collect on a judgment.
The plaintiffs, J.R. and Laura Bennett, sued Baker, alleging fraud, negligence, and malpractice. Baker, a New York tax attorney, had created a tax shelter for the profits realized from the Bennetts' business. The IRS found the tax shelter to be abusive but did not charge penalties, because the Bennetts had relied on advice from Baker. The amount of the judgment against Baker was $440,025.
This Court affirmed the judgment in Baker v. Bennett, 603 So.2d 928 (Ala.1992). One of the issues on that appeal was whether the trial court had had personal jurisdiction over Baker. We held that the trial court had had personal jurisdiction over Baker, a resident of New York, because Baker had had such contacts with Alabama that maintenance of the action did not offend the traditional notions of fair play and substantial justice. Baker was "transacting business" in Alabama (see Rule 4.2, A.R.Civ.P.); he had intentionally sent documents to this state to be executed by Alabama residents, he had obtained from Alabama residents promissory notes that were payable to Alabama banks, he had mailed numerous items to Alabama regarding this tax shelter, and he had accepted money from the tax shelter. 603 So.2d at 934.
After this Court's affirmance, the Bennetts filed a garnishment proceeding in Alabama in order to enforce their judgment. They filed the proceeding against three national securities firms that had offices in Alabama, namely, Merrill Lynch; Prudential Bache; and Shearson Lehman. Baker had accounts with the three firms; however, he never had an account in Alabama and the actual securities in Baker's accounts were located in New York and Boston.
The trial court dismissed the garnishment proceeding. This Court affirmed the dismissal, holding that the trial court did not have jurisdiction over Baker's securities even though the court had personal jurisdiction over these securities firms. Baker v. Bennett, 644 So.2d 901 (Ala.1994).
The Bennetts then filed an equitable proceeding pursuant to § 6-6-180 et seq., Ala.Code 1975, seeking discovery of assets and an order directing Baker to transfer property to satisfy the judgment. After several evidentiary hearings, the trial court found that the funds located in Baker's personal account could be attached by garnishment. Baker appealed.
The trial court entered an order directing Baker to post a supersedeas bond by October 26, 1994, and, if such bond was not posted, ordering Merrill Lynch to transfer to the Bennetts' attorneys title to enough of Baker's securities to equal the amount of the judgment. Baker refused to comply with the court's order. The trial court then ordered Merrill Lynch to transfer the securities to an account for the Bennetts' attorneys. The trial court gave Baker sufficient time to post a supersedeas bond in order to stay execution of the order pending the appeal. Baker refused to post the bond. Thereafter, Merrill Lynch complied with the order of the court, placing the money in an account in the name of the Bennetts' attorneys.
Baker then filed a motion with this Court for a stay while his appeal from the garnishment order was pending with this Court. Baker did not post a supersedeas bond. This Court granted the motion to stay the trial court's orders, conditioned upon Baker's posting a supersedeas bond or paying the judgment amount to the Circuit Court of Jefferson County.
Baker then attempted to order Merrill Lynch to transfer $750,000 from the account of Leon Baker, P.C., to the circuit court, stating, "For this purpose you should use, as part of the $750,000, the $724,353.33, you previously transferred to the account of the attorneys for [the Bennetts]." The Bennetts objected to this transfer. Merrill Lynch filed a motion to interplead the $750,000, seeking to use as part of that money the $724,353.33. The trial court denied the motion to interplead and would not permit Merrill Lynch to deposit the $750,000. Additionally, the trial court found that Baker had not complied with the order of this Court and further noted that Merrill Lynch was not liable to Leon Baker or Leon Baker, P.C., as a result of its complying with the order not to deposit the $750,000 from the account of Leon Baker, P.C. Thus, Baker failed to post a supersedeas bond as ordered by this Court.
On November 22, 1994, Baker filed a motion to extend this Court's conditional stay. However, Baker's "motion to extend the stay" is really a second motion to stay, because our original stay was conditioned upon Baker's posting a supersedeas bond or depositing the judgment amount with the circuit court.
The Bennetts have also filed a garnishment proceeding in Florida; that is where Baker now resides. The Florida proceeding has been stayed pending the decision of this Court. In the Florida courts, Baker argues that the funds are either held in tenancies by the entireties or belong to his professional corporation and are not attachable under Florida law. Of course, the Bennetts cannot recover twice. If the Bennetts are successful in Alabama, then the Florida proceeding will be moot.
A supersedeas bond posted on appeal stays execution of the judgment. The purpose of requiring a supersedeas bond is to preserve the status quo pending the appeal. Ex parte Spriggs Enterprises, Inc., 376 So.2d 1088 (Ala.1979). When one appeals without posting a supersedeas bond, the appellee's right to enforce the judgment is not suspended during the appeal, and, whatever measures are necessary for the execution of the judgment, it is the...
To continue reading
Request your trial
-
Davis v. Davis
...pursue them on application of the party in interest. Ex parte Dekle , 278 Ala. 307, [309,] 178 So.2d 85[, 86] (1965)." Baker v. Bennett , 660 So.2d 980, 982 (Ala. 1995). The posting of a supersedeas bond stays execution of the judgment and secures the status quo for an appellant, thereby av......
-
LEON C. BAKER, PC v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
...Owen, 729 So.2d 834 (1998) ("Alabama-Baker I"); Baker v. Bennett, 644 So.2d 901 (Ala.1994) ("Alabama-Baker II"); Baker v. Bennett, 660 So.2d 980 (Ala.1995) ("Alabama-Baker III"); and Baker v. Bennett (No. 1940172), 667 So.2d 743 (Ala.1995) (table) (affirming without an opinion circuit court......
-
BIRMINGHAM PAIN CENTER, INC. v. Cosgrove
...the judgment free to execute on the judgment." 5 Am.Jur.2d Appellate Review § 442 (1995) (footnotes omitted). See, e.g., Baker v. Bennett, 660 So.2d 980 (Ala.1995); Ex parte Dekle, 278 Ala. 307, 178 So.2d 85 (1965); Estate of Mollett, 749 So.2d 466 Our holding in this regard is consistent w......
-
Leon C. Baker, P.C. v. Bennett, 95 Civ. 7780 (WCC).
...affirmed the rulings in the Jefferson County Circuit Court, and denied Baker's motion for a rehearing of its decision. Baker v. Bennett, 660 So.2d 980 (Ala.1995), reh'g denied, 667 So.2d 743 Plaintiff alleges that Judge Monroe at that time was a candidate or a prospective candidate for elec......