Aliera Healthcare, Inc. v. Anabaptist Healthshare ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 4, 2020
In the Court of Appeals of Georgia
A20A0435. ALIERA HEALTHCARE, INC. v. ANABAPTIST
HEALTHSHARE et al.
MCFADDEN, Chief Judge.
This dispute arises from the acrimonious termination of a business
relationship. Aliera Healthcare, Inc. appeals an order appointing a receiver and
granting an interlocutory injunction to Anabaptist Healthshare and its wholly owned
subsidiary, Unity Healthshare, LLC.
The trial court’s extensive findings of fact are not clearly erroneous. Under
those findings, Aliera cannot show that the trial court manifestly abused her
discretion in either ruling. So we affirm.
1. Trial court’s findings of fact.
The trial court’s order was entered after a two-day hearing. We owe deference
to her findings of fact. Where, as here, the trial judge hears evidence and sits as the
trier of facts,
[her] findings based upon conflicting evidence are analogous to the
verdict of a jury and should not be disturbed by a reviewing court if
there is any evidence to support them. . . . [T]he trial court’s decision
with regard to questions of fact and credibility must be accepted unless
clearly erroneous [and] the reviewing court must construe the evidence
most favorably to the upholding of the trial court’s findings and
judgment. . . . [T]his standard of review requires us to focus on the
findings of fact made by the trial court in [her] order and the evidence
supporting those findings, rather than other evidence gleaned from the
record, construing it in favor of upholding the trial court’s order.
State v. Rosenbaum, 305 Ga. 442, 449 (2) (826 SE2d 18) (2019) (citations and
punctuation omitted). See also Mondy v. Magnolia Advanced Materials, 303 Ga. 764,
773 (4) (b) (815 SE2d 70) (2018) (Trial court’s order that “expressly specified which
portions of the factual record the judge credited and relied upon as well as the judge’s
legal analysis . . . affect[ed] how the . . . ruling would be reviewed on appeal.”)
So viewed, the record shows that the parties entered into an agreement under
which their complementary products were marketed together. Aliera was tasked with
administering that undertaking and so gained exclusive control over Unity’s
membership roster and website. Anabaptist and Unity came to believe that Aliera was
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misappropriating funds and so terminated the agreement. Aliera retained control over
the lists and website and used that control to issue opt-out offers to the
members/customers.
Appellant Aliera and appellees Anabaptist and Unity all provide alternatives
to health insurance. Aliera is a for-profit company. Anabaptist is a non-profit, tax-
exempt organization; it manages a health care sharing ministry for members of
Anabaptist communities in Virginia. Health care sharing ministries are non-profit
organizations that facilitate the sharing of certain medical expenses among their
members.
At the relevant time, members of a qualifying health care sharing ministry were
exempt from the Affordable Care Act’s individual mandate, which required persons
to purchase health insurance or pay a tax penalty. See 26 USC § 5000A (a), (d) (1)
& (d) (2) (B). (Congress eliminated the individual mandate tax penalty beginning
January 1, 2019. See Pub. L. No. 115-97, § 11081 (2017).) So the members of
Anabaptist were exempt from the individual mandate. The purchasers of Aliera’s
products were not exempt from the individual mandate.
Aliera determined that the parties’ plans were complementary — and that it
could increase its sales if it could sell its plans side by side with an Affordable Care
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Act-exempt health care sharing ministry plan. To this end, in 2016, Aliera approached
Anabaptist to propose a relationship between Aliera and Anabaptist. Eventually they
entered the contract at issue.
Under that contract, Anabaptist created Unity, a wholly owned subsidiary, to
offer health care sharing ministry plans.
The contract provided that Anabaptist granted Aliera the exclusive license to
sell and distribute Unity products. It provided that Anabaptist “was the sole and
exclusive owner or authorized licensor of and [would] retain all right, title, and
interest, including all intellectual property rights, in and to the ‘membership roster,’”
an undefined term in the agreement. The contract provided that Aliera remained “the
sole and exclusive authorized non-insurance health care company allowed to market
and sell health care products to Aliera and Unity HealthShare members [and]
retain[ed] all right, title, and interest, including all intellectual property rights, in and
to the Aliera products.”
Anabaptist board chair Tyler Hochstetler testified that under the parties’
contract, member funds collected for Unity products were to be segregated into a
separate bank account that belonged to Unity. Hochstetler also testified that
Anabaptist and Unity trusted that Aliera would properly account for Unity plan assets
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and that Aliera would keep the Unity plan assets separate from Aliera’s funds. Unity
entrusted Aliera with its member information and plan assets.
Aliera offered its products to the public in conjunction with the Unity plans.
Aliera served as the program administrator for the Unity plans. The marketing
materials for the side-by-side plan offerings emphasized the Unity exemption from
the tax penalty of the Affordable Care Act’s individual mandate.
Some individuals purchased plans that contained only an Aliera product and
some individuals purchased plans that contained only a Unity product. But the vast
majority purchased both. Though those plans were offered side by side, only the
Unity plan was Affordable Care Act-exempt; so Aliera made clear in its
representations to the public and regulators that the plans were legally separate and
distinct. Aliera described itself to insurance regulators as a third-party administrator
of the Unity plans. It also represented to insurance regulators that it was segregating
the Unity plan assets from other funds.
The separate and distinct nature of the Unity plans was also reflected in the
Member Guide, which Aliera drafted. The Member Guide delineated between the
Aliera component and the Unity component of the combined plans. The Member
Guide made clear that the health care sharing ministry was a Unity plan and that the
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members of that plan were Unity Healthshare members.
Anabaptist representative Hochstetler testified that in January 2018, he learned
for the first time that Aliera was not properly segregating Unity plan assets.
According to Hochstetler, Aliera’s principal, Timothy Moses, who became a member
of Anabaptist’s board, stated at a January 2018 board meeting that since April 2017,
Aliera had not segregated the Unity plan assets, but instead unilaterally allocated
revenues in the manner in which Aliera saw fit, keeping as much of the incoming
member funds for Aliera’s own benefit as it desired. Hochstetler testified that Aliera
did not have Anabaptist or Unity’s permission or authorization to treat member funds
in this way, and that Anabaptist and Unity never authorized Aliera to place Unity
funds into Aliera accounts or to use Unity funds for Aliera’s own purposes.
Moses’ admissions to Anabaptist and Unity demonstrated that Aliera’s
representations to insurance regulators about the way it treated Unity plan funds were
incorrect. Indeed, Aliera’s comptroller acknowledged at the interlocutory injunction
hearing that member contributions associated with the Unity plans were not sent
directly to Unity Healthshare. Rather, he testified that Aliera deposited payments into
an account it controlled; that Aliera transferred money from that account to pay
claims; and that Aliera performed monthly reconciliations whereby payments were
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segregated into Aliera and Unity accounts.
Anabaptist presented evidence that it became increasingly concerned about
Aliera’s administration of the Unity plans during the summer of 2018. It was
particularly troubled by Aliera’s repeated refusals to disclose information about the
Unity plans over which Aliera had assumed complete control.
On May 4, 2018, Unity learned that Moses had written approximately $150,000
in checks to himself out of the Unity operating account without Anabaptist’s or
Unity’s knowledge or authorization.
Hochstetler testified that after learning that the Unity plan assets were not
being properly segregated, Anabaptist and Unity took immediate steps to secure the
integrity of Unity’s funds. Anabaptist first demanded an accounting of Unity funds
so that Anabaptist could assess whether Aliera was handling Unity plan assets
appropriately. Aliera did not provide Unity with an accounting. On July 25, 2018,
Anabaptist instructed Aliera to turn over control of Unity funds to Unity immediately
and to direct Unity plan members to make future payments to Unity. Aliera did not
comply with either of these demands and continued to collect funds associated with
the Unity component of member plans.
Hochstetler testified that Moses had a criminal history, and given that history,
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Moses’ taking funds from the Unity operating account, and Aliera’s refusal to
disclose complete financial information, he and other Anabaptist board members
became seriously concerned that the Unity plan assets were at risk of
misappropriation. He testified that Anabaptist removed Moses and his wife, another
Aliera executive, from certain Unity bank accounts as signers and ultimately froze
two accounts containing approximately $5 million in funds used to pay claims.
On August 10, 2018, following a failed mediation with Aliera, Anabaptist
terminated the contract.
The parties’ contract provided that, upon termination, “all licenses granted
hereunder shall immediately terminate, and the [p]arties will promptly destroy or
return all materials in [their] possession which belong to the other [p]arty, including
any and all confidential information which may have come into [their] possession.”
Anabaptists’s termination included an express revocation of Aliera’s right to
hold the Unity plan funds and demanded that Aliera return control over those funds
as well as the Unity membership roster to Anabaptist. Aliera did not turn over the
Unity plan funds or the Unity membership roster. Aliera retained possession of the
Unity membership roster, all of the Unity plans, all of the Unity plan assets, Unity’s
intellectual property, including the Unity website, and Unity’s employees.
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After termination of the agreement, Aliera retained the entirety of the Unity
member base for itself and continued to maintain control over Unity’s website and
refused Unity’s claims to it.
The testimony at the hearing demonstrated, to the trial court’s satisfaction, that
Aliera continued to control the Unity website, www.unityhealthshare.org and
www.unityhealthshare.com. Aliera has configured those websites so that when a
member visits them, the member is automatically redirected to the website of Trinity
Healthshare, an entity created by Aliera and its principals on January 1, 2019.
Hochstetler testified that Aliera’s retention of the financial information
concerning the Unity plans has prevented Anabaptist and Unity from completing
2017 and 2018 audits, which are necessary to retain Unity’s status as a health care
sharing ministry, and has jeopardized Unity’s status as a tax exempt and Affordable
Care Act-approved health care sharing ministry. Hochstetler testified that if Unity’s
status as an Affordable Care Act-approved health care sharing ministry is lost, it may
become very difficult to recover, as health care sharing ministries must share health
care expenses of its members continuously and without interruption.
On November 15, 2018, Aliera sent a notice to all Unity HealthShare members
informing them that, unless they opted out, their membership would be transferred
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to a new health care sharing ministry:
Dear AlieraCare 5000 - Premium Plan Member,
As the year 2018 comes to an end, Aliera Healthcare, Inc. would like to
communicate some exciting and important plan information for the
upcoming 2019 plan year.
No Action is Needed
Beginning January 1st, 2019 Aliera is excited to announce Trinity
HealthShare as its new Healthcare Sharing Ministry (HCSM) partner.
Trinity HealthShare is deeply rooted in the traditions of faith with a
ministry that is open to providing healthcare sharing to all churches,
their employees, missionaries, and individuals who share the same
ethical and moral beliefs.
All plan features, including eligible medical services, Member Shared
Responsibility Amount (“MSRA”), and monthly member contribution
amounts (how much you are billed each month) will remain the same.
You also retain access to the same network providers and facilities with
the same discounts. Nothing changes on your plan except for the HCSM
name.
Your MSRA will continue to accrue through your membership
anniversary date. You will not lose any credit for the out-of-pocket
expenses.
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You don’t have to do anything to maintain your current plan. You will
retain your Member ID number and continue to contact Aliera Member
Services for any assistance you may need regarding your membership.
You will receive an updated plan membership card. All contact and
processing information remains the same.
If for any reason, you wish not to continue with your AlieraCare 5000 -
Premium [] Plan, you may opt-out by clicking here to complete a
member cancellation form. An Aliera representative will follow up with
you promptly to process your request.
Please contact Aliera’s Member Services at (###) ###-####.
Representatives are available, Monday through Friday, 8:00 a.m. – 8:00
p.m. ET to answer any questions.
We wish you health and prosperity in the New Year!
Sincerely,
Your Aliera Family
“No Action Is Needed” was in bold, italicized font, near the top of the notice.
The notice made no mention of Unity or of the fact that Unity had terminated its
agreement with Aliera. The notice announced that it would transition all Unity
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members to Trinity, the entity created by Aliera and its principals on January 1, 2019,
which is not affiliated with Unity. Unity members had to take affirmative action to
opt out of the transition of their plans from Unity to Trinity.
2. Terms of the injunction.
Anabaptist and Unity moved for an interlocutory injunction, and the trial court
granted the motion. She enjoined Aliera from moving, converting, or in any way
unilaterally transitioning to Trinity those individuals who had Unity plans on or
before August 10, 2018 (the date Anabaptist terminated the contract), and the assets
related to those individuals. The court ordered Aliera to provide Anabaptist and Unity
with the names and contact information of those individuals who had Unity plans on
or before August 10, 2018. The court ruled that once Aliera had provided Anabaptist
and Unity with the contact information, Aliera could solicit those individuals to join
Trinity “under the traditional confines of fair competition.” .
3. The trial court did not abuse her discretion in granting an interlocutory
injunction.
Whether to grant a request for interlocutory injunctive relief is within the trial
court’s discretion, and we will not reverse the trial court’s decision absent a manifest
abuse of that discretion. Grossi Consulting, LLC v. Sterling Currency Group, LLC,
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290 Ga. 386, 388 (1) (722 SE2d 44) (2012) (citations omitted). See OCGA § 9-5-8
(“The granting and continuing of injunctions shall always rest in the sound discretion
of the judge, according to the circumstances of each case.”). In determining whether
to issue an interlocutory injunction, a trial court should consider four factors:
(1) [whether] there is a substantial threat that the moving party will
suffer irreparable injury if the injunction is not granted; (2) [whether] the
threatened injury to the moving party outweighs the threatened harm that
the injunction may do to the party being enjoined; (3) [whether] there is
a substantial likelihood that the moving party will prevail on the merits
of [its] claims at trial; and (4) and [whether] granting the interlocutory
injunction will not disserve the public interest.
Grossi Consulting, 290 Ga. at 388 (1) (citation omitted). “[T]he four factor test for
issuing an interlocutory injunction is a balancing test and . . . it is not incumbent upon
the movant to prove each factor.” City of Waycross v. Pierce County Bd. of Commrs.,
300 Ga. 109, 112 (1) (793 SE2d 389) (2016). “All that is material on appeal is that
there is evidence which supports the trial court’s finding. . . . Where the evidence is
conflicting, it can not be said that the court abused its discretion in either granting or
denying the injunction.” Bailey v. Buck, 266 Ga. 405, 406 (1) (467 SE2d 554) (1996)
(citation and punctuation omitted).
(a) Whether there is a substantial threat that Anabaptist and Unity will suffer
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irreparable injury if the injunction is not granted.
Aliera argues that the trial court erred by finding a risk of irreparable harm,
given its finding that Aliera is permitted to solicit people who had been members of
Unity to join Trinity. We disagree.
First, we reject Aliera’s premise that the trial court’s conclusion that Aliera
could fairly compete with Anabaptist and Unity conflicts with her conclusion that
Aliera likely had misappropriated plan assets by attempting to convert Unity plans to
Trinity plans in the November 15, 2018, notification. Aliera characterizes the
notification as a solicitation, permissible under the trial court’s ruling allowing fair
competition. We observe that Aliera sent the notification while Anabaptist lacked
Unity members’ contact information because Aliera had not provided it and, as the
trial court observed, while this litigation was pending. The trial court’s findings of
fact, which are supported by the evidence, support its conclusion: Aliera used Unity’s
membership list to notify Unity members that nothing in their plans had changed,
except the name of the health care sharing ministry — when in truth Aliera was
misappropriating Unity plan assets by unilaterally moving the Unity members to
Trinity. There is no conflict between this conclusion and the trial court’s ruling that
Aliera may fairly compete with Unity.
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The trial court found that Anabaptist and Unity demonstrated a substantial
threat of irreparable injury. It found that Aliera planned to transfer all Unity members
to Trinity, and that the loss of customers amounted to irreparable injury. , It also
found that Aliera’s failure to provide Anabaptist and Unity with information about
the Unity plan assets and its failure to return control of the plan assets threatened
Anabaptist’s and Unity’s status as 501 (c) (3) organizations, which is integral to their
status as Affordable Care Act-approved health care sharing ministries and their ability
to operate as health care sharing ministries under numerous state laws. The court
observed that once lost, an Affordable Care Act exemption cannot be recovered
because the Affordable Care Act requires continuous operation from December 1999.
26 USC § 5000A (d) (2) (B) (ii) (IV). Finally, the court found that Aliera’s conduct
harmed Anabaptist’s and Unity’s goodwill by conveying the impression to Unity’s
members that Unity was somehow unable to maintain its plans. Given that some
evidence supports the trial court’s findings, we hold that the trial court did not
manifestly abuse her discretion in ruling that there is a substantial threat that
Anabaptist and Unity would suffer irreparable injury if the injunction were not
granted. Jansen-Nichols v. Colonial Pipeline Co., 295 Ga. 786, 788 (764 SE2d 361)
(2014) (affirming trial court’s ruling on injunction because some evidence, although
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disputed, supported trial court’s conclusions).
Aliera argues that Anabaptist’s offer to settle the case for a certain sum
(evidence that Aliera argues the trial court erroneously excluded) proves that
Anabaptist and Unity had an adequate remedy at law, so an injunction could not be
entered. See OCGA § 9-5-1. But “[i]t is important to note it is not enough that there
is a remedy at law. It must be plain and adequate, or, in other words, as practical and
as efficient to the ends of justice and its prompt administration as the remedy in
equity.” Owens v. Ink Wizard Tattoos, 272 Ga. 728, 729 (533 SE2d 722) (2000)
(citation and punctuation omitted). Pretermitting whether or not the trial court erred
in excluding evidence of the offer to settle, the fact that a possible monetary
settlement was considered does not constitute plain evidence that monetary damages
are an adequate remedy, particularly as the trial court found that Aliera’s conduct
threatened Unity’s status as a health care sharing ministry. See Savannah Cemetery
Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 214-215 (5) (704 SE2d 858)
(2010) (permanent injunction). Additionally, “[i]f [Unity’s] assets were dissipated
because no [injunction was granted], any remedy at law would be meaningless.” D.C.
Micro Dev. v. Lange, 259 Ga. App. 611, 614 (3) (578 SE2d 251) (2003).
(b) Whether the threatened injury to Anabaptist and Unity outweighs the
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threatened harm that the injunction may do to Aliera.
As for the second factor, the trial court found that the threatened irreparable
harm to Anabaptist and Unity outweighed any harm to Aliera. The court found that
any harm to Aliera was largely self-inflicted. The court found that if Aliera had
returned the Unity plans to Unity, it would not have had to incur costs associated with
maintaining those plans after the contract was terminated; and that if Aliera had not
attempted to transition the Unity plan members to the Trinity plan, then it would not
have incurred the costs of having to stop the transition. Finally, the court observed
that the injunction did not prevent Aliera from selling its own products and marketing
and selling Trinity health care sharing ministry plans. Given that some evidence
supports the trial court’s findings, we hold that the trial court did not manifestly abuse
her discretion in ruling that the threatened injury to Anabaptist and Unity outweighs
the threatened harm that the injunction may do to Aliera. Jansen-Nichols, 295 Ga. at
788.
(c) Whether there is a substantial likelihood that Anabaptist and Unity will
prevail on the merits of their claims at trial.
As for the third factor, the trial court concluded that Anabaptist and Unity were
substantially likely to succeed on their declaratory judgment, breach of contract, and
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breach of fiduciary duty claims. We agree with the trial court about the claims for
declaratory judgment and breach of contract. About the claim for breach of fiduciary
duty, we are in doubt; but as this is a balancing test, do not need to decide.
The trial court so concluded on the basis of her findings: Anabaptist and Unity
held all rights to the Unity plans under the terms of the parties’ agreement. Aliera
serviced the plans solely as a third-party administrator under the parties’ agreement.
By virtue of its role, Aliera held substantial control over the Unity assets. And Aliera
took steps to misappropriate those assets by unilaterally attempting to transition Unity
plans to Trinity.
The court observed that her interpretation of the agreement — that the Unity
plans belong to Anabaptist and Unity — is consistent with statutes that require health
care sharing ministries to be nonprofit organizations, see 26 USC § 5000A (d) (2) (B)
(ii) (I); OCGA § 33-1-20, since Aliera is a for-profit company. She also observed that
her interpretation is consistent with the fact that under the agreement, Anabaptist
granted Aliera a license to market and sell the Unity plans, which demonstrates that
Anabaptist owned the Unity plans.
(i) Declaratory judgment claim.
Aliera does not argue that the trial court erred by finding that Anabaptist and
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Unity are likely to succeed on the merits of their claim for a declaratory judgment.
(ii) Breach of contract claim.
Aliera argues that the trial court erred in finding that Anabaptist and Unity
were likely to succeed on the merits of their breach of contract claim because only
Anabaptist (not Unity) has rights under the agreement; and Anabaptist’s rights are
limited to rights to the roster of members of the Anabaptist health care sharing
ministry, not rights to Unity plan assets, including the roster of members who joined
Unity. The trial court’s interpretation of the contract as described above is plausible
and “the record does not demand a finding that [Anabaptist and Unity] are unlikely
to succeed on the merits [of the breach of contract claim].” City of Waycross, 300 Ga.
at 113 (1) (given that interpretation of contract was plausible, record did not demand
a finding that movants were unlikely to succeed on the merits).
Aliera also argues that the trial court’s interpretation of the contract violates
federal antitrust laws in that it allocates customers among horizontal competitors
(competitors at the same level of the market structure. See Yeager’s Fuel v.
Pennsylvania Power & Light Co., 953 FSupp 617, 654 (ED Pa. 1997)). The trial court
rejected this argument on the ground that Anabaptist’s and Unity’s construction of the
contract does not allocate customers between horizontal competitors, because Aliera
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and Unity are not horizontal competitors, given that Aliera cannot qualify as a health
care sharing ministry and that under a fair reading of the contract, Anabaptist only
granted a license to market and sell the plans of its wholly owned subsidiary, Unity.
See Ad-Vantage Telephone Directory Consultants v. GTE Directories Corp., 849 F2d
1336, 1346 (II) (11th Cir. 1987) (Applying Florida law, which tracks federal law, to
hold that “there can be no antitrust violation without a competitor, and agents do not
compete with those whom they represent.”). Aliera’s antitrust argument does not
require reversal of the trial court’s order.
(iii) Breach of fiduciary duty claim.
Aliera argues that the trial court erred in concluding that Anabaptist and Unity
are likely to succeed on the merits of their breach of fiduciary duty claim because it
owes Anabaptist and Unity no fiduciary duty. It relies on language in the contract
disclaiming a confidential relationship and establishing an independent contractor
relationship. (We observe that this language did not prevent Aliera from asserting
breach of fiduciary duty claims against Anabaptist and Unity in its own complaint.)
Georgia law does not offer definitive guidance as to the merits of that
argument. There is authority from the United States District Court for the Northern
District of Georgia that supports it. Monopoly Hotel Group, LLC v. Hyatt Hotels
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Corp., Case No. 1:12-CV-1250-AT, 2016 WL 9735798, at *26 (ND Ga. Aug. 16,
2016), affd., 694 Fed. Appx. 752 (11th Cir. 2017), and cases cited therein (“Georgia
courts have held that fiduciary duty claims fail where the parties’ relationship stems
from a contractual agreement and the contract expressly provides that it does not give
rise to a confidential, fiduciary, or agency relationship between the parties.”). But
another district court reached a different conclusion. Lenexa Hotel, LP v. Holiday
Hospitality Franchising, Case No. 15-9196-KHV, 2017 WL 2264358, at *9 (D. Kan.
May 24, 2017), and cases cited therein (“Defendant cites Georgia cases which have
declined to recognize fiduciary duties in cases where a contract explicitly states that
it does not create such a duty. Those cases involve additional facts, however, which
demonstrate that the parties were acting to further independent business objectives.”).
We need not decide whether Anabaptist and Unity are likely to succeed on the
merits of the breach of fiduciary duty claim because of the disclaimer in the contract.
This is so because “it is not incumbent upon the movant to prove each [of the four]
factor[s]” relevant to determining the appropriateness of an injunction. City of
Waycross, 300 Ga. at 112 (1). So any failure to prove that Anabaptist and Unity are
likely to succeed on one of its three claims does not mean that the trial court
manifestly abused her discretion in granting an injunction.
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(d) Whether granting the interlocutory injunction will not disserve the public
interest.
As for the fourth factor, the trial court found that an interlocutory injunction
is in the members’ interest, and thus the public interest. See City of Waycross, 300
Ga. at 113 (1) (evidence supported trial court’s determination that “public interest,
i.e., the public as a whole” would not be disserved by the grant of interlocutory
injunction requiring city to continue to provide water and sewer services). Aliera has
not shown that the trial court abused her discretion in so finding.
For these reasons, we conclude that the trial court did not abuse her
“considerable discretion,” Jansen-Nichols, 295 Ga. at 788, in granting the motion for
an interlocutory injunction.
4. The appointment of a receiver.
Aliera argues that the trial court erred by appointing a receiver. We disagree.
“When any fund or property is in litigation and the rights of either or both
parties cannot otherwise be fully protected . . . a receiver of the same may be
appointed by the judge of the superior court having jurisdiction thereof.” OCGA § 9-
8-1. Further, “[e]quity may appoint a receiver to take possession of and hold, subject
to the direction of the court, any assets charged with the payment of debts where there
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is manifest danger of loss, destruction, or material injury to those interested.” OCGA
§ 9-8-3.”The grant or refusal of a receivership is a matter addressed to the sound legal
discretion of the trial court, the exercise of which will not be interfered with on
appeal unless such discretion be manifestly abused.” Treu v. Humanism Investment,
284 Ga. 657, 659 (670 SE2d 409) (2008) (citation and punctuation omitted).
The trial court appointed a receiver to oversee the Unity plans and the Unity
plan assets, specifically, the member funds that are properly allocated to the Unity
component of member plans, to ensure that the members’ claims are paid. The court
found that the appointment of a receiver was particularly appropriate in this case
because of Aliera’s failure to account for Unity funds when Anabaptist demanded
such an accounting.
Aliera argues that the trial court abused her discretion because this is merely
a contract dispute that does not justify the appointment of a receiver, absent a finding
that Aliera is wasting Unity funds or that Aliera may become insolvent. But the court
heard evidence that Aliera was misapplying Unity funds by failing to properly
segregate them from Aliera’s own funds. And those funds were used to pay members’
claims. The trial court did not abuse her discretion by appointing a receiver without
finding that Aliera was wasting Unity funds or could become insolvent. See Fulp v.
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Holt, 284 Ga. 751, 753-754 (670 SE2d 785) (2008) (appointment of receiver was not
an abuse of discretion when partners had agreed to an equal division of income and
expenses, and defendant had previously misappropriated funds from partnership).
Finally, Aliera argues that the appointment of a receiver violates a limitation-
of-liability clause in the parties’ agreement. Limitation-of-liability clauses may not
relieve a party from “liability for acts of gross negligence or wilful or wanton
conduct.” Holmes v. Clear Channel Outdoor, 284 Ga. App. 474, 477 (2) (644 SE2d
311) (2007). Anabaptist and Unity have alleged such acts against Aliera.
Consequently, the trial court did not manifestly abuse her discretion in appointing a
receiver simply because the contract contained a limitation-of-liability clause.
Judgment affirmed. Doyle, P. J., and Markle, J., concur.
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