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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 990
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 991
Richard M. Scrushy, the defendant in this case, appealed from a partial summary judgment entered in favor of the plaintiff, Wade Tucker. The trial court made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. As a preliminary matter, Scrushy filed in this Court an emergency motion to stay execution of the judgment against him. This Court ordered execution of the judgment stayed pending further orders of the Court and, in addition, ordered the parties to show cause whether the partial summary judgment is appropriate for certification as a final appealable order pursuant to Rule 54(b). An adverse determination of that issue would eliminate the basis for enforcement of the judgment. After considering the parties' responses to the Court's show-cause order, we conclude that the trial court's Rule 54(b) certification was appropriate, and, accordingly, we vacate the stay of the execution of the judgment and allow the appeal in this case to proceed. We further conclude that the emergency motion to stay execution of the judgment is due to be denied as premature.
Tucker's complaint alleges that Scrushy and others perpetrated an accounting fraud against HealthSouth, resulting in massive financial losses by HealthSouth and ultimately its shareholders. Tucker's complaint alleges claims of insider open-market trading, fraud, breach of fiduciary duty by corporate directors, professional negligence by auditors, aiding and abetting or civil conspiracy by an investment banking firm, and breach of contract. Tucker's complaint also alleges that Scrushy was unjustly enriched when he accepted bonuses as a result of overvalued financial statements that misstated HealthSouth's net income, which, Tucker alleges, was in violation of a contract between HealthSouth *Page 992 and Scrushy. As to the claim of unjust enrichment, Tucker's complaint alleges, in pertinent part, as follows:
"34. Beginning in or about January 1997, and continuing into March 2003, defendants Scrushy [and others] knowingly and willfully conspired and agreed with each other, to commit the wrongdoing alleged herein, specifically, to misrepresent and falsely inflate earnings and HealthSouth's true financial condition. Scrushy [and other defendants] engaged in this fraud, misrepresentation and manipulation of income and earnings of HealthSouth to enrich themselves by artificially inflating HealthSouth's publicly reported earnings and earnings per share an[d] by fraudulently enhancing its reported financial condition.
"35. Since 1999, Scrushy [and other defendants] overstated HealthSouth's earnings by at least $1.4 Billion. This massive overstatement occurred because Scrushy insisted that HealthSouth meet or exceed earnings expectations. When HealthSouth's earnings fell short of estimates, Scrushy directed HealthSouth's accounting personnel . . . to `fix it' by artificially inflating the company's earnings to match Wall Street expectations.
"36. Scrushy [and other defendants] also created false journal entries to HealthSouth's income statement and balance sheet accounts. . . .
"37. It was part of the wrongdoing and conspiracy that Scrushy [and other defendants] engaged in an unlawful scheme to inflate artificially Health-South's publicly reported earnings and earnings per share and to falsify reports of HealthSouth's financial condition so that they could reward themselves with bonuses, stock options, and other corporate perks. Scrushy personally benefitted from the scheme to artificially inflate earnings, having sold at least 7, 782, 130 shares of stock since 1999 at prices grossly inflated by the materially misstated financial statements. Scrushy [and other defendants] `earned' tens of millions of dollars in bonuses, stock options, and excessive salary and perks based on the inflated earnings.
". . . .
"118. During each year from 1992 through his departure in March 2003, Scrushy received tens of millions of dollars in compensation from HealthSouth, including, but not limited to, salary, stock options, benefits, bonuses, incentive compensation, and other income from the corporation in the form of loans, benefits, and/or the use of equipment and facilities of HealthSouth.
"119. The amounts paid by Health-South to Scrushy were grossly excessive, particularly when one considers the value of stock and dividends.
"120. What is more, incentive compensation to Scrushy [and other defendants] in executive management, is based on HealthSouth's reported financial results. As these results are and were false, Scrushy [and the others] . . . benefitted improperly and were unjustly enriched to the extent they received incentive compensation based on exaggerated revenues and profits.
". . . .
"COUNT VII
"Unjust Enrichment
"188. Plaintiff realleges and incorporates by reference the allegations in the preceding paragraphs 1 through 187 as though fully set out herein.
"189. As a result of the transactions set out herein, all Individual Defendants [and other defendants] held money which, in equity and good conscience and under law, belongs to HealthSouth. Defendants *Page 993 have unjustly enriched themselves by breaches of the duty not to engage in self-dealing and interested transactions as pled herein. All such monies in the hands of defendants are due to be repaid to and for the benefit of HealthSouth.
"190. Wherefore, Plaintiff, for and on behalf of HealthSouth, seeks money damages from the Defendants . . . in an amount to be determined by the trier of fact to compensate HealthSouth for its damage[ ], plus interest, attorneys' fees, costs, and all such other relief at law and equity to which the corporation may be entitled."
(Emphasis added.)
After Scrushy was acquitted of the criminal charges, Tucker moved for a partial summary judgment in this case, seeking only restitution from Scrushy of bonuses he received from 1996 to 2002. The trial court's judgment summarizes the criminal activities affecting HealthSouth for the years 1996-2002 as follows:
"HealthSouth, as a publicly traded company, is legally required to file accurate, audited and reliable financial information regarding its ongoing business operations. Some of this information is required to be filed on a quarterly basis and other information on an annual basis. Since March 2003 fifteen (15) senior HealthSouth executives have pled guilty to sundry and various criminal acts, including criminal fraud, specifically regarding the accuracy, reliability, falsification and fabrication of the financial information and documentation that HealthSouth was legally required to file during the years 1996 through 2002 inclusive. Included in the fifteen pleading executives are the five (5) chief financial officers who held that position at HealthSouth prior to March 18, 2003. As of this date, the fifteen pleading executives have been sentenced regarding their criminal activities and Defendant Scrushy's trial resulted in an acquittal. It is with this background that the instant matter comes before the Court."
Scrushy served as the Chief Executive Officer ("CEO") and as the Chairman of the Board of Directors of HealthSouth from 1984 until March 2003, except that he was not the CEO from August 27, 2002, to January 6, 2003. He was fired as HealthSouth's CEO on March 19, 2003, the day after the fraudulent activities were revealed, and he also resigned as Chairman of the Board of Directors. Scrushy signed the annual reports for HealthSouth on Forms 10K submitted to the Securities and Exchange Commission for the years 1996 through 2001, filed annual proxies on Forms 14A for the years 1996 through 2002, and ran for reelection as a director on these proxies. In each annual proxy on Form 14A from 1996 through 2002, HealthSouth disclosed the following criteria for the incentive bonuses it paid its executives:
"Incentive Compensation: In addition to base salary, the [Compensation] Committee recommends to the Board of Directors cash incentive compensation for HealthSouth's executives, based on each executive's success in meeting qualitative and quantitative performance goals on an annual basis. The total incentive bonus pool available for the company's executives and management personnel is capped at the lesser of (a) the amount by which the company's annual net income exceeds the budgeted annual net income established by the Board of Directors and (b) 10% of the company's annual net income. No bonuses are payable unless annual net income exceeds budgeted net income. Individual incentive bonuses are determined on a basis that takes into account each executive's *Page 994 success in achieving standards of performance, which may or may not be quantitative, established by the Board of Directors and an executive's superiors. Bonus determinations are made on a case-by-case basis, taking into account appropriate quantitative and qualitative factors, and there is no fixed relationship between any particular performance factor and the amount of a given executive's bonus. Historically, incentive compensation has been a major component of HEALTHSOUTH's executive compensation, and the Committee believes that placing executives at risk for such a component has been effective in motivating such executives to achieve such goals."
(Emphasis added.)
HealthSouth executives were eligible for two kinds of incentive bonuses — annual bonuses and monthly target bonuses — during 1996 through 2002. However, according to the incentive compensation disclosure on the Form 14A proxies, no bonuses were to be paid in any year to any executive, including Scrushy, unless they were paid from the bonus pool that was capped at the lesser of 10% of HealthSouth's net income or the extent by which the actual net income exceeded the budgeted net income.
HealthSouth paid both annual and target bonuses to Scrushy for the years 1996, 1997, 2001, and 2002, and only target bonuses to him for the years 1998-2000. The amounts of those bonuses are shown as follows:
Year Annual Bonus Target Bonus Total Bonus ____ ____________ ____________ ___________ 2002 $10,000,000 $ 1,200,000 $11,200,000 2001 $56,500,000 $ 2,400,000 $ 8,900,000 2000 None $ 2,154,849 $ 2,154,849 1999 None $ 134,031 $ 134,031 1998 None $ 1,577,829 $ 1,577,829 1997 $10,000,000 $ 2,400,000 $12,400,000 1996 $58,000,000 $ 2.400,000 $10,400,000 ___________ ___________ ___________ Total $34,500,000 $12,266,709 $46,766,709After HealthSouth's financial problems became public, audits were conducted. Those audits revealed that for the year 1996 HealthSouth's actual net income was far less than had been originally reported and that for the years 1997-2002 Health-South had actually lost millions of dollars annually. The reported and actual net income for those years is shown as follows:
Year Reported Net Income Actual Net Income ____ ___________________ _________________ 2002 $135,704,000 $(466,824,000) 2001 $202,387,000 $(191,225,000) 2000 $278,465,000 $(364,243,000) 1999 $ 76,517,000 $(326,443,000) 1998 $ 46,558,000 $(556,482,000) 1997 $330,608,000 $( 65,432,000) 1996 $189,864,000 $ 88,360,000Based upon the actual annual net income for 1996 and the annual losses for the remaining years, Tucker argued in his summary-judgment motion that there was no bonus pool from which executive bonuses could have been paid and, therefore, that Scrushy should refund the bonuses that were wrongfully paid to him. The trial court noted in its judgment that "Scrushy . . . [did] not dispute that the originally filed financial information that HealthSouth filed as required by law was inaccurate, unreliable, false and fabricated. To the contrary, Defendant Scrushy's position is simply that he played no part in and is not responsible for any of the criminal activities that resulted in the falsification and fabrication of said financial statements."
With regard to the bonuses paid to Scrushy in 1996, the trial court held that because HealthSouth earned positive net income in 1996 issues of material fact precluded a summary judgment as to the 1996 bonuses. With regard to the bonuses paid to Scrushy in 1997-2002, however, the trial court concluded as follows:
"As to all bonuses paid to Defendant Scrushy for the years 1997 through 2002 inclusive, HealthSouth incurred actual losses and no bonus pool existed out of which the bonuses for these years could *Page 995 properly have been paid to Scrushy. Scrushy was unjustly enriched by these payments to the detriment of Health-South and to allow Scrushy to retain the benefit of these payments would be unconscionable. These payments must be returned and Plaintiff Tucker is entitled to summary judgment for the bonuses paid to Scrushy for the years 1997 through 2002 inclusive."
The trial court entered a total judgment against Scrushy in the amount of $47,828,106, representing the bonuses paid for the years 1997-2002, plus prejudgment interest. The trial court further held that the judgment did not resolve other claims against Scrushy that remained pending, but it certified pursuant to Rule 54(b) that there was no just reason for delay and directed the entry of a final judgment concerning the bonuses for 1997-2002. Scrushy appealed and asked this Court to stay execution of the judgment pending appeal.
We do not address herein the merits of Scrushy's appeal. We decide at this point only the questions whether the trial court properly concluded that this judgment was appropriate for Rule 54(b) certification — i.e., that the action involved more than one claim, that there was a final decision as to one of those claims, and that there was no just reason for delay — and, if the Rule 54(b) certification was proper, whether to stay execution of the judgment.
In Samaad v. City of Dallas,
"We note initially that the proper method for reviewing a rule 54(b) judgment is not well established. The language of the rule lends itself to two distinct challenges to a rule 54(b) judgment predicated upon the existence of multiple claims. First, an appellee seeking dismissal of an appeal could argue that the complaint does not present `more than one claim for relief.' This is a legal question that could be raised sua sponte by a court of appeals concerned that it might not have jurisdiction. The court of appeals would review de novo the district court's finding of separate claims.
"Second, an appellee could contend that, assuming the complaint presents multiple claims, the district court nonetheless abused its discretion in entering judgment. In such a situation, the court of appeals would consider whether the district court abused its discretion in determining whether `there [was] no just reason for delay.' If the appellee did not challenge the district court's exercise of discretion (as opposed to its finding of multiple claims), the court of appeals could not consider the issue sua *Page 996 sponte, for it would not go to the appellate court's jurisdiction."
(Footnote omitted.) See also Stearns v. ConsolidatedManagement, Inc.,
"There are three prerequisites to a Rule 54(b) certification. First, the action must involve separate claims. Liberty Mutual Insurance Co. v. Wetzel,
424 U.S. 737 ,96 S.Ct. 1202 ,47 L.Ed.2d 435 (1976). Second, there must be a final decision as to at least one of these claims. Third, the district court must expressly determine that there is `no just reason for delay.' The existence of the first two criteria is open to our de novo review, but the determination of `just reason for delay' is addressed to the sound discretion of the district court. Curtiss-Wright Corp. v. General Electric Co.,446 U.S. 1 ,7-8 ,100 S.Ct. 1460 ,1464-1465 ,64 L.Ed.2d 1 (1980); -Sears Roebuck Co. v. Mackey,351 U.S. 427 ,76 S.Ct. 895 ,100 L.Ed. 1297 (1956); Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co.,642 F.2d 1065 ,1069 (7th Cir.1981)."
We agree with the reasoning expressed by the Fifth Circuit and the Seventh Circuit and will apply different standards of review to the issues presented here. Whether the action involves separate claims and whether there is a final decision as to at least one of the claims are questions of law to which we will apply a de novo standard of review. Whether there was "no just reason for delay" is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.
Rule 54(b) states, in pertinent part: "When more than one claim for relief is presented in an action, . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. . . ."
Clearly, Tucker's complaint involves multiple claims and multiple parties. "[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one
claim or fully dispose of the claims as they relate to at least one party." Haynes v. Alfa Fin. Corp.,
We first address the question whether Tucker's unjust-enrichment claim was a separate and distinct claim that was fully adjudicated by the partial summary judgment. InPrecision American Corp. v. Leasing Service Corp.,
"The question before this Court is whether the partial summary judgment LSC received completely disposed of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim. Tolson v. United States,
732 F.2d 998 ,999 (D.C. Cir.1984). Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson,732 F.2d at 1001 ; Cates v. Bush,293 Ala. 535 ,307 So.2d 6 (1975). However, authorities have stated that `when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply.' 10 *Page 997 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A.,762 F.2d 462 ,464 (5th Cir.1985)."
Federal authorities have also recognized that the "separate claim" question is not easily resolved. For example, the Fifth Circuit stated in Samaad:
"Even if we are able to differentiate nicely between the legal and discretionary aspects of rule 54(b) judgments, a great deal of uncertainty nonetheless remains, for we must consider the unsettled question of what exactly is a `claim for relief.' The most that can be said confidently about this question is that various courts focus upon different things but are reluctant to articulate hard-and-fast tests."Some courts concentrate on the facts underlying the putatively separate claims. For instance, in Jack Walters Sons [v. Morton Bldg.],
737 F.2d [698 ] at702 [(7th Cir.1984)], the court sought to define `claim for relief in light of what it deemed to be rule 54(b)'s purpose: `to spare the court of appeals from having to keep relearning the facts of a case on successive appeals.' Accordingly, it held that `if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes.' Id."Similarly, in Purdy Mobile Homes [v. Champion Home Builders Co.],
594 F.2d [1313 ] at1316 [(9th Cir.1979)], the court rejected an argument that there was only one claim because some facts were common to all the theories of recovery. The fact that one claim required proof of facts different from those required to prove another claim rendered it `separate.' Id. See also Gas-A-Car[, Inc. v. American Petrofina, Inc.],484 F.2d [1102 ] at1105 [(10th Cir.1973)]; 6 [James W.] Moore et al., [Moore's Federal Practice], ¶ 54.332 at 54-194 [(2d ed. 1991)]."Other courts have rejected this fact-bound test and have focused upon the possibility of separate recoveries under arguably separate claims. They have developed what one commentator has labeled a `legal rights test,' under which common underlying facts do not preclude the existence of similar claims. 6 Moore et al., supra, ¶ 54.33 at 54-196 n. 31 (discussing Tolson [v. United States,
732 F.2d 998 (D.C. Cir.1984)])."Nonetheless, certain points of agreement emerge from the cases. For instance, `[i]t is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b).' Page [v. Preisser],
585 F.2d [336 ] at339 [(8th Cir.1978)] (citing Edney v. Fidelity Guar. Life Ins. Co.,348 F.2d 136 ,138 (8th Cir.1965)). Although courts generally agree on these points, they do not fully reveal the contours of the phrase `claim for relief.' And we are reluctant, at least in this case, to rush in where other courts fear to tread. Like them, rather than attempting to formulate a generally applicable definition, we take note of the foregoing `rules of thumb' and decide the case at hand."
"Unfortunately, there is no clear test to determine when claims are separate for purposes of the rule. Local P-171 [Amalgamated Meat Cutters v. Thompson Farms Co.],642 F.2d [1065 ] at1070 [(7th Cir.1981)]. Nonetheless, we have recognized certain rules of thumb to identify those types of claims that can never be considered separate, and have examined the remainder on a case-by-case basis. The first rule is that `claims cannot be separate unless separate recovery is possible on each. . . . Hence, mere variations of legal theory do not constitute separate claims.'642 F.2d at 1071 . The second is that `claims so closely related that they would fall afoul of the rule against splitting claims if brought separately' may not be considered as separate. Id."
The United States Court of Appeals for the Second Circuit enunciated the following test in Rieser v. Baltimore Ohio R.R.,
"A single claimant presents multiple claims for relief under the Second Circuit's formulation when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action. . . . However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b). Similarly, when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) does not apply."
10 Charles Alan Wright et al., Federal Practice Procedure § 2657 (3d ed.1998) (footnotes omitted).
In his complaint, Tucker alleges the following claims against Scrushy: breach of fiduciary duty by insider trading; breach of fiduciary duty by false accounting and omissions in public disclosures; interested transactions and waste of corporate assets; misappropriation of corporate assets; unjust enrichment; breach of contract; civil conspiracy; willful violation of the law; intentional, reckless, and innocent misrepresentation and suppression; breach of duty of loyalty and good faith; and fraud, misrepresentation, and the breach of the fiduciary duties of loyalty, care, and disclosure. We conclude that the various claims in the complaint are not all variations on a single theme. Scrushy's alleged breach of duty in accepting bonuses that HealthSouth was not legally obligated to pay is a sufficiently separate breach that is not alleged elsewhere in the complaint. Therefore, the unjust-enrichment claim is a separate claim that will support a Rule 54(b) certification.
No substantial issue appears to be presented with reference to the extent to which the financial statements were incorrect. Scrushy does not argue that any of the revised yearly income gain or loss totals are incorrect. As we have previously *Page 999 stated, for purposes of the partial summary judgment appealed here, the trial court assumed "that Defendant Scrushy had no actual knowledge of, played no part in and had no active participation in any of the criminal activities that resulted in the falsification and fabrication of the originally filed financial documents that are at issue." The facts presented in support of the unjust-enrichment claim appear at this juncture in the proceedings to be straight-forward3 — the Form 14A proxies provided that no bonuses would be paid unless HealthSouth's annual net income exceeded its budgeted net income, bonuses were paid based on incorrect financial statements, and it is now known that during the years in question HealthSouth actually had net losses instead of net gains. The facts underlying the unjust-enrichment claim are sufficiently discrete that the claim can be reviewed separately and apart from the other claims in the complaint. The narrow issues surrounding the bonuses paid to Scrushy are not likely to be presented to us again in the event the remainder of this case is appealed to this Court. See 10 Charles Alan Wright et al.,Federal Practice Procedure § 2659: "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the district court renders its decision on the remaining claims or as to the remaining parties."
We now turn to the question whether the trial court exceeded its discretion in concluding that there was no just reason for delay in bringing this interlocutory appeal. Under the facts presented by this case, we cannot say that the trial court exceeded its discretion. Such a discretionary standard of review requires a presumption in favor of the ruling of the trial court, and this Court will not set aside that ruling unless we are convinced that the trial court exceeded the discretion vested in it.
Scrushy points to the claims that he asserts in other actions and proceedings that, he says, give rise to the prospect for a setoff. In Curtiss-Wright Corp. v. General ElectricCo.,
"The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case. As we have noted, that assessment merits substantial deference on review. Here, the District Court's assessment of the equities between the parties was based on an intimate knowledge of the case *Page 1000 and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in granting petitioner's motion for certification under Rule 54(b)."
Rule 8, Ala. R.App. P., provides, in pertinent part:
"The appellant shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in Rule 62(e), Ala. R. Civ. P.) unless the appellant executes bond with good and sufficient sureties, approved by the clerk of the trial court, payable to the appellee (or to the clerk or register if the trial court so directs), with condition, failing the appeal, to satisfy such judgment as the appellate court may render, when the judgment is:"(1) For the payment of money only, in an amount equal to . . . 125% [of the amount of the judgment] if the judgment exceeds $10,000.00. . . ."
(Emphasis added.) The default rule is that the prevailing party may immediately execute on the judgment. If the appellant desires a stay, it is his responsibility to post the required bond. This Court has held that "[t]he language utilized in the rule is mandatory; the trial judge is given no discretion in setting the amount of the supersedeas bond." Ex parteSpriggs Enters., Inc.,
In Ware v. Timmons, case no. 1030488, in response to a motion to suspend the requirement of Rule 8(a)(1), this Court issued an order in which it recognized a narrow exception to Rule 8. In that case, this Court directed the trial court to accept "the maximum bond obtainable, based on the appellants' entire net worth and available insurance coverage. . . ." TheWare exception is now recorded in the Committee Comments to Rule 8(a) and (b), Adopted January 12, 2005. The Comments note that the modification to the supersedeas bond requirement in Ware was derived from this Court's authority under Rule 2(b), Ala. R.App. P., to suspend *Page 1001 a rule of procedure for "good cause shown."4
In his brief in support of his motion to stay execution of the judgment that he filed with the trial court, Scrushy stated that "[t]hrough counsel, [he] has investigated obtaining a supersedeas bond and cannot do so." As evidence, he presented an affidavit by William S. Dodson, Jr., president of Robinson-Adams Insurance, Inc., a property and casualty insurance agency in Birmingham. Dodson's affidavit states, in pertinent part, as follows:
"4. After being contacted by . . . counsel for Mr. Scrushy, I have worked to help Mr. Scrushy procure an appeal/supersedeas bond in the amount of $59,300,000 in this case."5. Specifically, I have talked to Safe-co, CNA, St. Paul/Travelers, AIG, Hartford Indemnity Company and Centennial Casualty Company. All of these sureties have declined to offer a bond to Mr. Scrushy.
"6. I have also talked to Capitol Indemnity Insurance Company and Zurich Insurance Company. Each of these surety companies said that they would not consider issuing the required supersedeas bond unless Mr. Scrushy would fully collateralize the surety's bond obligation by posting an irrevocable evergreen letter of credit in the amount of the bond penalty issued by a bank that was acceptable to the surety company. To date, I have not been informed that Mr. Scrushy can or will obtain an acceptable letter of credit in the required amount to fully collateralize an appeal bond, so no surety has, at this point, been willing to entertain further the issuance of the bond."
This evidence did not show that Scrushy could not obtain a bond, but only that he would first have to obtain a letter of credit. Notably, Scrushy presented no evidence indicatingthat he could not obtain a letter of credit. Dodson's statement that he had "not been informed" that Scrushy could obtain a letter of credit explains the state of his knowledge, but it does not offer any evidence as to Scrushy's ability to do so. In Scrushy's emergency motion to stay execution of the judgment, counsel asserted that "[n]either he [Scrushy] nor any other individual could conceivably come up with $60 million in cash for such a bond." Absent evidence from Scrushy as to his inability to make any arrangements that would satisfy the requirements for posting a supersedeas bond, consideration of the Ware option is premature. We therefore deny the emergency motion to stay execution of the judgment.
STAY ISSUED FEBRUARY 8, 2006, VACATED; EMERGENCY MOTION TO STAY EXECUTION OF THE JUDGMENT DENIED.
NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.
Richard M. Scrushy, the defendant in this case, appealed from a partial summary judgment entered in favor of the plaintiff, Wade Tucker, concerning bonuses paid by HealthSouth Corporation to Scrushy during the years 1997 through 2002. The trial court made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. As a preliminary matter, this Court ordered the parties to show cause whether the judgment was appropriate for certification as a final judgment pursuant to Rule 54(b). In addition, *Page 1002
we ordered execution of the judgment stayed pending further orders of the Court. After considering the parties' responses to this Court's show-cause order, we concluded that the trial court's Rule 54(b) certification was appropriate, and we vacated the stay of the execution of the judgment and allowed the appeal in this case to proceed. See Scrushy v. Tucker,
"Wade Tucker, a shareholder of HealthSouth Corporation, filed a shareholder's derivative lawsuit on behalf of HealthSouth against Scrushy, the former chief executive officer for Health-South, and numerous other defendants. This case is one of three civil actions filed as a result of alleged fraudulent accounting practices at HealthSouth. The other two civil cases are pending in the United States District Court for the Northern District of Alabama and in the Delaware Chancery Court. In addition, criminal charges were brought against Scrushy in the same federal court. All of the civil cases were stayed during the pendency of the criminal proceedings against Scrushy. After a lengthy trial, Scrushy was acquitted of the criminal charges against him."Tucker's complaint alleges that Scrushy and others perpetrated an accounting fraud against HealthSouth, resulting in massive financial losses by HealthSouth and ultimately its shareholders. Tucker's complaint alleges claims of insider open-market trading, fraud, breach of fiduciary duty by corpor