STATE OF OKLAHOMA

1st Extraordinary Session of the 54th Legislature (2013)

HOUSE BILL 1023	By:	Perryman

AS INTRODUCED

An Act relating to civil procedure; repealing Section 8, Chapter 228, O.S.L. 2009, which relates to stays of enforcement of judgments; amending 12 O.S. 2011, Section 990.4, which relates to stays of enforcement of judgments; modifying grounds for obtaining stay of enforcement; limiting amount of appeal bond; authorizing court to enter certain orders; providing that appeal bonds shall not be required for certain appeals; amending 12 O.S. 2011, Section 990.4, as amended by Section 2 of this act, which relates to stays of enforcement of judgments; modifying grounds for obtaining stay of enforcement; modifying amount of appeal bond; providing for construction of act; providing for noncodification; and declaring an emergency.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     REPEALER     Section 8, Chapter 228, O.S.L. 2009, is hereby repealed.
SECTION 2.     AMENDATORY     12 O.S. 2011, Section 990.4, is amended to read as follows:
Section 990.4  A.  Except as provided in subsection C of this section, a party may obtain a stay of the enforcement of a judgment, decree or final order:
1.  While a posttrial post-trial motion is pending;
2.  During the time in which an appeal may be commenced in any court in or outside of this state; or
3.  While an appeal is pending in any court in or outside of this state.
Such stay may be obtained by filing with the court clerk a written undertaking and the posting of a supersedeas bond or other security as provided in this section.  In the undertaking the appellant shall agree to satisfy the judgment, decree or final order, and pay the costs and interest on appeal, if it is affirmed.  The undertaking and supersedeas bond or security may be given at any time.  The stay is effective when the bond and the sufficiency of the sureties are approved by the trial court or the security is deposited with the court clerk.  The enforcement of the judgment, decree or order shall no longer be stayed, and the judgment, decree or order may be enforced against any surety on the bond or other security:
1.  If neither a posttrial post-trial motion nor a petition in error is filed, and the time for appeal has expired;
2.  If a posttrial post-trial motion is no longer pending, no petition in error has been filed, and the time for appeal has expired; or
3.  If an appeal is no longer pending.
B.  The amount of the bond or other security shall be as follows:
1.  When the judgment, decree or final order is for payment of money:
a.	Subject to the limitations hereinafter provided, the The bond shall be double the amount of the judgment, decree or final order, unless the bond is executed or guaranteed by a surety as hereinafter provided.  The bond shall be for the amount of the judgment, decree or order including costs and interest on appeal where it is executed or guaranteed by an entity with suretyship powers as provided by the laws of Oklahoma.
b.	Upon On a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post bond in the amount required by this paragraph, the court shall balance the likely substantial economic harm to the judgment debtor with the ability of the judgment creditor to collect the judgment in the event the judgment is affirmed on appeal and may lower the bond accordingly.  "Substantial economic harm" means insolvency or creating a significant risk of insolvency.  The court shall not lower a bond as provided in this paragraph to the extent there is in effect an insurance policy, or agreement under which a third party is liable to satisfy part or all of the judgment entered and such party is required to post all or part of the bond.
c.	Subject to the limitations contained in this paragraph, the bond shall not exceed Twenty-five Million Dollars ($25,000,000.00).
d.	Upon limiting lowering the bond pursuant to subparagraphs b or c of as provided in this paragraph, the court shall enter an order enjoining a judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the court shall not make any order that interferes with the judgment debtor's use of assets in the normal course of business.  If it is proven by a preponderance of the evidence that the appellant for whom the bond would be or has been limited pursuant to subparagraph b or c of this paragraph likely will be or is intentionally dissipating or diverting assets or engaging in other conduct outside of the ordinary course of its business for the purpose of avoiding payment of the judgment, the court shall enter such orders as are necessary to prevent such conduct including, but not limited to, requiring that a bond be posted equal to the full amount of security required pursuant to this section, without the reduction or limitations allowed by subparagraph b or c of this paragraph.; and
e. d.	Instead of filing a supersedeas bond, the appellant may obtain a stay by depositing cash with the court clerk in the amount of the judgment or order plus an amount that the court determines will cover costs and interest on appeal.  The court shall have discretion to accept United States Treasury notes or general obligation bonds of the State of Oklahoma in lieu of cash.  If the court accepts such notes or bonds, it shall make appropriate orders for their safekeeping and maintenance during the stay;
2.  When the judgment, decree or final order directs execution of a conveyance or other instrument, the amount of the bond shall be determined by the court.  Instead of posting a supersedeas bond or other security, the appellant may execute the conveyance or other instrument and deliver it to the clerk of the court for deposit with a public or private entity for safekeeping, as directed by the court in writing;
3.  When the judgment, decree or final order directs the delivery of possession of real or personal property, the bond shall be in an amount, to be determined by the court, that will protect the interests of the parties.  The court may consider the value of the use of the property, any waste that may be committed on or to the property during the pendency of the stay, the value of the property, and all costs.  When the judgment, decree or final order is for the sale of mortgaged premises and the payment of a deficiency arising from the sale, the bond must also provide for the payment of the deficiency;
4.  When the judgment or final order directs the assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which the judgment or order was rendered, for deposit with a public or private entity for safekeeping during the pendency of the stay, as directed by the court in writing, or the bond shall be in such sum as may be prescribed by the court;
5.  The bond in any action or litigation brought under any legal theory involving a nonparticipating manufacturer to the Master Settlement Agreement dated November 23, 1998, shall be in an amount not to exceed one hundred percent (100%) of the judgment, exclusive of interest and costs, ten percent (10%) of the net worth of the judgment debtor, or Twenty-five Million Dollars ($25,000,000.00), whichever is less.  Provided, however, these bond limitations shall not apply to judgments in favor of the State of Oklahoma, its agencies or officers; or
6.  In order to protect any monies payable to the Tobacco Settlement Fund as set forth in Section 50 of Title 62 of the Oklahoma Statutes, the bond in any action or litigation brought under any legal theory involving a signatory, successor of a signatory or an affiliate of a signatory to the Master Settlement Agreement dated November 23, 1998, or a signatory, successor of a signatory or an affiliate of a signatory to the Smokeless Tobacco Master Settlement Agreement, also dated November 23, 1998, shall be in an amount not to exceed one hundred percent (100%) of the judgment, exclusive of interest and costs, ten percent (10%) of the net worth of the judgment debtor, or Twenty-five Million Dollars ($25,000,000.00), whichever is less.  However, if it is proved by a preponderance of the evidence that the appellant for whom the bond has been limited pursuant to this paragraph is intentionally dissipating or diverting assets outside of the ordinary course of its business for the purpose of avoiding payment of the judgment, the court shall enter such orders as are necessary to prevent dissipation or diversion, including, but not limited to, requiring that a bond be posted equal to the full amount of security required pursuant to this section.  For purposes of this paragraph, "Master Settlement Agreement" shall have the same meaning as that term is defined in paragraph 5 of Section 600.22 of Title 37 of the Oklahoma Statutes, and "Smokeless Tobacco Master Settlement Agreement" means the settlement agreement and related documents entered into on November 23, 1998, by this state and leading United States smokeless tobacco product manufacturers.
C.  Subsections A and B of this section shall not apply in actions involving temporary or permanent injunctions, actions for divorce, separate maintenance, annulment, paternity, custody, adoption, or termination of parental rights, or in juvenile matters, postdecree post-decree matrimonial proceedings or habeas corpus proceedings.  The trial or appellate court, in its discretion, may stay the enforcement of any provision in a judgment, decree or final order in any of the types of actions or proceedings listed in this subsection during the pendency of the appeal or while any posttrial post-trial motion is pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.  If a temporary or permanent injunction is denied or dissolved, the trial or appellate court, in its discretion, may restore or grant an injunction during the pendency of the appeal and while any posttrial post-trial motions are pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.
D.  In any action not provided for in subsection A, B or C of this section, the court may stay the enforcement of any judgment, decree or final order during the pendency of the appeal or while any posttrial motion is pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.
E.  The trial court shall have continuing jurisdiction during the pendency of any posttrial motion and appeal to modify any order it has entered regarding security or other conditions in connection with a stay.
F.  The execution of a supersedeas bond shall not be a condition for the granting of a stay of judgment, decree or final order of any judicial tribunal against any county, municipality, or other political subdivision of the State of Oklahoma.
G.  Executors, administrators and guardians who have given bond in this state, with sureties, according to law, are not required to provide a supersedeas bond if they are granted a stay of enforcement of a judgment, decree or final order.
H.  After an appeal has been decided, but before the mandate has issued, a party whose trial court judgment has been affirmed, may move the appellate court to order judgment on the bond or other security in the amount of the judgment plus interest, appeals costs and allowable appeal-related attorney fees.  After mandate has issued, a party who has posted a bond or other security may move for exoneration of the bond or other security only in the trial court; and all motions concerning the bond or other security must be addressed to the trial court.
I.  For judgments entered after November 1, 2009, appeal bonds shall not be required for appeals of punitive damages.
SECTION 3.     AMENDATORY     12 O.S. 2011, Section 990.4, as amended by Section 2 of this act, is amended to read as follows:
Section 990.4  A.  Except as provided in subsection C of this section, a party may obtain a stay of the enforcement of a judgment, decree or final order:
1.  While a post-trial posttrial motion is pending;
2.  During the time in which an appeal may be commenced; or
3.  While an appeal is pending.
Such stay may be obtained by filing with the court clerk a written undertaking and the posting of a supersedeas bond or other security as provided in this section.  In the undertaking the appellant shall agree to satisfy the judgment, decree or final order, and pay the costs and interest on appeal, if it is affirmed.  The undertaking and supersedeas bond or security may be given at any time.  The stay is effective when the bond and the sufficiency of the sureties are approved by the trial court or the security is deposited with the court clerk.  The enforcement of the judgment, decree or order shall no longer be stayed, and the judgment, decree or order may be enforced against any surety on the bond or other security:
1.  If neither a post-trial posttrial motion nor a petition in error is filed, and the time for appeal has expired;
2.  If a post-trial posttrial motion is no longer pending, no petition in error has been filed, and the time for appeal has expired; or
3.  If an appeal is no longer pending.
B.  The amount of the bond or other security shall be as follows:
1.  When the judgment, decree or final order is for payment of money:
a.	The Subject to the limitations hereinafter provided, the bond shall be double the amount of the judgment, decree or final order, unless the bond is executed or guaranteed by a surety as hereinafter provided.  The bond shall be for the amount of the judgment, decree or order including costs and interest on appeal where it is executed or guaranteed by an entity with suretyship powers as provided by the laws of Oklahoma.
b.	On Upon a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post bond in the amount required by this paragraph, the court shall balance the likely substantial economic harm to the judgment debtor with the ability of the judgment creditor to collect the judgment in the event the judgment is affirmed on appeal and may lower the bond accordingly.  "Substantial economic harm" means insolvency or creating a significant risk of insolvency.  The court shall not lower a bond as provided in this paragraph to the extent there is in effect an insurance policy, or agreement under which a third party is liable to satisfy part or all of the judgment entered and such party is required to post all or part of the bond.
c.	Subject to the limitations contained in this paragraph, the bond shall not exceed Twenty-seven Million Five Hundred Thousand Dollars ($27,500,000.00).
d.	Upon lowering limiting the bond as provided in pursuant to subparagraph b or c of this paragraph, the court shall enter an order enjoining a judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the court shall not make any order that interferes with the judgment debtor's use of assets in the normal course of business; and.  If it is proven by a preponderance of the evidence that the appellant for whom the bond would be or has been limited pursuant to subparagraph b or c of this paragraph likely will be or is intentionally dissipating or diverting assets or engaging in other conduct outside of the ordinary course of its business for the purpose of avoiding payment of the judgment, the court shall enter such orders as are necessary to prevent such conduct including, but not limited to, requiring that a bond be posted equal to the full amount of security required pursuant to this section, without the reduction or limitations allowed by subparagraph b or c of this paragraph.
d. e.	Instead of filing a supersedeas bond, the appellant may obtain a stay by depositing cash with the court clerk in the amount of the judgment or order plus an amount that the court determines will cover costs and interest on appeal.  The court shall have discretion to accept United States Treasury notes or general obligation bonds of the State of Oklahoma in lieu of cash.  If the court accepts such notes or bonds, it shall make appropriate orders for their safekeeping and maintenance during the stay;
2.  When the judgment, decree or final order directs execution of a conveyance or other instrument, the amount of the bond shall be determined by the court.  Instead of posting a supersedeas bond or other security, the appellant may execute the conveyance or other instrument and deliver it to the clerk of the court for deposit with a public or private entity for safekeeping, as directed by the court in writing;
3.  When the judgment, decree or final order directs the delivery of possession of real or personal property, the bond shall be in an amount, to be determined by the court, that will protect the interests of the parties.  The court may consider the value of the use of the property, any waste that may be committed on or to the property during the pendency of the stay, the value of the property, and all costs.  When the judgment, decree or final order is for the sale of mortgaged premises and the payment of a deficiency arising from the sale, the bond must also provide for the payment of the deficiency;
4.  When the judgment or final order directs the assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which the judgment or order was rendered, for deposit with a public or private entity for safekeeping during the pendency of the stay, as directed by the court in writing, or the bond shall be in such sum as may be prescribed by the court;
5.  The bond in any action or litigation brought under any legal theory involving a nonparticipating manufacturer to the Master Settlement Agreement dated November 23, 1998, shall be in an amount not to exceed one hundred percent (100%) of the judgment, exclusive of interest and costs, ten percent (10%) of the net worth of the judgment debtor, or Twenty-five Million Dollars ($25,000,000.00) Twenty-seven Million Five Hundred Thousand Dollars ($27,500,000.00), whichever is less.  Provided, however, these bond limitations shall not apply to judgments in favor of the State of Oklahoma, its agencies or officers; or
6.  In order to protect any monies payable to the Tobacco Settlement Fund as set forth in Section 50 of Title 62 of the Oklahoma Statutes, the bond in any action or litigation brought under any legal theory involving a signatory, successor of a signatory or an affiliate of a signatory to the Master Settlement Agreement dated November 23, 1998, or a signatory, successor of a signatory or an affiliate of a signatory to the Smokeless Tobacco Master Settlement Agreement, also dated November 23, 1998, shall be in an amount not to exceed one hundred percent (100%) of the judgment, exclusive of interest and costs, or Twenty-five Million Dollars ($25,000,000.00), whichever is less.  However, if it is proved by a preponderance of the evidence that the appellant for whom the bond has been limited pursuant to this paragraph is intentionally dissipating or diverting assets outside of the ordinary course of its business for the purpose of avoiding payment of the judgment, the court shall enter such orders as are necessary to prevent dissipation or diversion, including, but not limited to, requiring that a bond be posted equal to the full amount of security required pursuant to this section.  For purposes of this paragraph, "Master Settlement Agreement" shall have the same meaning as that term is defined in paragraph 5 of Section 600.22 of Title 37 of the Oklahoma Statutes, and "Smokeless Tobacco Master Settlement Agreement" means the settlement agreement and related documents entered into on November 23, 1998, by this state and leading United States smokeless tobacco product manufacturers.
C.  Subsections A and B of this section shall not apply in actions involving temporary or permanent injunctions, actions for divorce, separate maintenance, annulment, paternity, custody, adoption, or termination of parental rights, or in juvenile matters, post-decree postdecree matrimonial proceedings or habeas corpus proceedings.  The trial or appellate court, in its discretion, may stay the enforcement of any provision in a judgment, decree or final order in any of the types of actions or proceedings listed in this subsection during the pendency of the appeal or while any post-trial posttrial motion is pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.  If a temporary or permanent injunction is denied or dissolved, the trial or appellate court, in its discretion, may restore or grant an injunction during the pendency of the appeal and while any post-trial posttrial motions are pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.
D.  In any action not provided for in subsection A, B or C of this section, the court may stay the enforcement of any judgment, decree or final order during the pendency of the appeal or while any posttrial motion is pending upon such terms as to bond or otherwise as it considers proper for the security of the rights of the parties.
E.  The trial court shall have continuing jurisdiction during the pendency of any posttrial motion and appeal to modify any order it has entered regarding security or other conditions in connection with a stay.
F.  The execution of a supersedeas bond shall not be a condition for the granting of a stay of judgment, decree or final order of any judicial tribunal against any county, municipality, or other political subdivision of the State of Oklahoma.
G.  Executors, administrators and guardians who have given bond in this state, with sureties, according to law, are not required to provide a supersedeas bond if they are granted a stay of enforcement of a judgment, decree or final order.
H.  After an appeal has been decided, but before the mandate has issued, a party whose trial court judgment has been affirmed, may move the appellate court to order judgment on the bond or other security in the amount of the judgment plus interest, appeals costs and allowable appeal-related attorney fees.  After mandate has issued, a party who has posted a bond or other security may move for exoneration of the bond or other security only in the trial court; and all motions concerning the bond or other security must be addressed to the trial court.
SECTION 4.     NEW LAW     A new section of law not to be codified in the Oklahoma Statutes reads as follows:
The amendatory provisions contained in Section 2 of this act conform the statute to the holding in Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.2d 789 (Okla. 2013).  The amendatory provisions contained in Section 3 of this act conform the statute in some, but not all, respects to the amendatory provisions of Enrolled House Bill No. 1603 of the 1st Session of the 52nd Oklahoma Legislature, c. 228, O.S.L. 2009.
SECTION 5.  It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.

54-1EX-50030	SD	09/03/13