Enviropower, L.L.C. v. Bear, Stearns & Co., Inc.

Summary

In this concurring opinion on an en banc order, Justice Bland addresses how a judgment debtor's net worth should be calculated for purposes of setting a supersedeas bond. The opinion distinguishes net worth, measured as assets minus liabilities, from the unrealized market value or potential sale value of a company. It concludes that a proposed sale's unrealized gain does not constitute current net worth, while recognizing that the trial court may protect the judgment creditor if a sale later produces a realized gain.

Holdings

1. Market value based on an unrealized gain from a proposed sale of the company does not equal current net worth for purposes of setting a supersedeas bond.
2. Although an unrealized gain may not be counted as current net worth, the trial court may require the company to escrow an amount sufficient to post an appropriate bond if a completed sale produces a realized gain that moves the company from negative to positive net worth.

Questions Presented

1. Whether unrealized gain reflected in a proposed sale of a company may be treated as current net worth when setting a supersedeas bond.
2. Whether net worth for supersedeas-bond purposes is calculated as assets less liabilities under basic accounting principles.
3. Whether the trial court may protect the judgment creditor by requiring an escrow or other security if a proposed sale is completed and produces a realized gain.

Disposition

other