Mahalo Investments III, LLC v. First Citizens Bank & Trust Company, Inc.

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, 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.
http://www.gaappeals.us/rules/
February 19, 2015
In the Court of Appeals of Georgia
A14A1940. MAHALO INVESTMENTS III, LLC et al. v. FIRST
CITIZENS BANK & TRUST COMPANY, INC.
MCMILLIAN, Judge.
This appeal presents an issue of first impression – whether under OCGA § 14-
11-504 (a), an order charging a member’s interest in a limited liability company with
payment of an unsatisfied judgment must be initiated as a separate action against the
limited liability company. As more fully set forth below, we discern no error in the
issuance of the charging order by the trial court that also entered judgment on the
underlying debt and therefore affirm.
Pertinent to the issues presented here, the record shows that on August 18,
2011, appellee First Citizens Bank & Trust Company, Inc. (“FCB”) obtained a
judgment in excess of three million dollars (hereinafter referred to as the “original
judgment”) against Mahalo Investments III, LLC (“Mahalo”), Mark B. Epstein, and
Andrew Kelly (hereinafter collectively referred to as “appellants”) in the State Court
of Cobb County. Appellants appealed to this Court, and we affirmed the original
judgment without opinion pursuant to our Rule 36. See Mahalo Investments III v.
First Citizens Bank & Trust Company, Inc., 319 Ga. App. XXVII (January 24, 2013)
(unpublished opinion).1
Following remittitur, FCB engaged in discovery in an effort to collect its
judgment. During their post-judgment depositions, both Epstein and Kelly revealed
they owned interests in several limited liability companies (the “LLCs”), and FCB
filed an application under OCGA § 14-11-504 (a) seeking an order charging their
interests in the LLCs with payment of the unsatisfied judgment. FCB filed its
application in the same court under the same file number assigned to the original civil
action in which the original judgment was rendered, and appellants opposed FCB’s
request for a charging order on the basis that, inter alia, OCGA § 14-11-504 (a)
requires the judgment debtor seeking a charging order to initiate a separate
proceeding, apart from the proceeding in which the judgment establishing the debt
1
Although our opinion may be found in the section listing unpublished written
opinions issued under our Rule 33 (b), we decided this case under Court of Appeals
Rule 36, which governs judgments which are affirmed without an opinion.
2
was rendered. Following a hearing, the trial court issued a charging order against
appellants’ interests in the LLCs, without specifically addressing whether the
application had been properly filed in that court.
On appeal, appellants contend the trial court erred by entering the charging
order against their interest in the LLCs as part of the same action in which the original
judgment was entered, and without first establishing that venue and jurisdiction over
the LLCs was proper.2 Appellants argue that their position is supported by both the
“statutory text and structure of the charging order remedy” as it relates to limited
liability companies, limited partnerships, and partnerships, and our Supreme Court’s
decision in Prodigy Centers/Atlanta No. 1 v. T-C Assoc., 269 Ga. 522 (501 SE2d 209)
(1998).
We begin with the premise that in construing a statute, we look at its terms,
giving words their plain and ordinary meaning, and “[w]here the plain language of
a statute is clear and susceptible of only one reasonable construction, we must
construe the statute according to its terms.” Atlanta Independent School System v.
2
Appellants do not appear to contest FCB’s general entitlement to a charging
order against their interests in the LLCs.
3
Atlanta Neighborhood Charter School, Inc., 293 Ga. 629, 631 (748 SE2d 884)
(2013).
Under OCGA § 14-11-504, a judgment creditor of a member of a limited
liability company has a statutory right to collect a judgment debt from the member’s
distributional interests in a limited liability company by obtaining a charging order
and diverting payments to the creditor which would otherwise have been made to the
member. Subsection (a) of that section sets out the procedure for obtaining a charging
order:
On application to a court of competent jurisdiction by any judgment
creditor of a member or of any assignee of a member, the court may
charge the limited liability company interest of the member or such
assignee with payment of the unsatisfied amount of the judgment with
interest. . . .
The court that can issue a charging order is mentioned twice in this provision.
First, subsection (a) makes it clear that the application must be filed with a court of
competent jurisdiction. Appellants do not assert on appeal that the state court does not
have subject matter jurisdiction over an application for a charging order.3 The second
3
Although in the proceedings below appellants argued that a charging order
is an equitable remedy that can only be imposed by a superior court, they have not
pressed this argument on appeal.
4
reference to court simply refers to “the court,” and grammatically refers back to the
“court of competent jurisdiction,” which received the application. Thus, under the
plain language and unambiguous language of OCGA § 14-11-504 (a), we can discern
no basis for disallowing the court that entered the underlying judgment to also enter
the charging order so long as that court is a “court of competent jurisdiction.” See
Couch v. Red Roof Inns, Inc., 291 Ga. 359, 363 (729 SE2d 378) (2012) (“Instead,
what a legislature normally does, if it wants to make sure that readers understand that
a word with a broad ordinary meaning does not include something within that
meaning, is to expressly define that thing out of the category.”).
Appellants point to slightly different language in the Georgia Uniform
Partnership Act’s charging order provision to support their argument that the
judgment creditor must initiate an action in a separate court to obtain a charging
order. OCGA § 14-8-28 (a) provides:
On due application to a competent court by any judgment creditor of a
partner . . ., the court which entered the judgment, order, or decree, or
any other court, may charge the interest of the debtor partner . . . with
payment of the unsatisfied amount of such judgment debt with interest
thereon. . . .
5
Relying on the language “the court which entered the judgment, order, or decree,”
appellants assert that these charging order provisions must be read in pari materia
and the absence of this language in OCGA § 14-11-504 (a) means that the court that
entered the judgment is not permitted to also enter the charging order.
Pretermitting the question of whether the charging order provisions are related
statutes for purposes of applying the in pari materia rule, we disagree that the
Georgia Uniform Partnership Act’s charging order provision has any bearing on
construing the plain and unambiguous language in OCGA § 14-11-504 (a). It has
long been held that “[e]ven statutes in pari materia may not be resorted to where the
language of the statute under consideration is clear.” Corey Outdoor Advertising, Inc.
v. Board of Zoning Adjustments of the City of Atlanta, 254 Ga. 221, 222 (1) (327
SE2d 178) (1985) (citing Ryan v. Commrs. of Chatham County, 203 Ga. 730, 732 (48
SE2d 86) (1948)).
The reason for this rule is obvious – construing statutes together that separately
are plain and unambiguous may create ambiguities where none exist. In this case, the
Georgia Uniform Partnership Act’s charging provision specifies that the charging
order may be issued by “the court which entered the judgment, order, or decree, or
any other court.” If, as appellants argue, the absence of the language “which entered
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the judgment, order, or decree” in OCGA § 14-11-504 (a) means that such courts are
prohibited from issuing charging orders, then the same rule ought to apply to the term
“or any other court,” which is also absent from subsection (a). But construing the
statutes together to prohibit in one what is expressly mentioned in the other would
mean that under OCGA § 14-11-504 (a), no court could issue a charging order, an
absurd result that has no basis in the text.
In addition to the statutory textual argument, appellants also assert that their
interpretation of the statute is supported by our Supreme Court’s decision in Prodigy
Centers/Atlanta v. T-C Assoc. Ltd., 269 Ga. 522 (501 SE2d 209) (1998). In Prodigy,
the issue was whether an interest in a limited liability partnership constitutes a chose
in action under Georgia law. The underlying facts were that T-C Associates (“TCA”)
first obtained a monetary judgment against Prodigy Child Development Centers
(“PCDC”) in the Superior Court of Fulton County. TCA then filed a judgment lien
and an application for a charging order against PCDC’s interests in several limited
partnerships in the Superior Court of DeKalb County. Id. at 522-523. However,
before TCA’s judgment lien was recorded or a charging order was issued, the Internal
Revenue Service filed a federal tax lien against PCDC in the Superior Court of Fulton
County. The case was subsequently removed to federal court, where the federal
7
government argued that its federal tax lien should have priority over TCA’s lien
because its lien was recorded prior to TCA’s lien. On the other hand, TCA contended
it should have priority because it obtained its judgment before the federal tax lien was
filed. The government responded to this contention by asserting that the debtor’s
partnership interest is a chose in action, which requires a charging order, garnishment,
or some other collateral proceeding in order for the judgment to attach, which had not
taken place at the time the federal government filed its tax lien. The district court
granted summary judgment to TCA, and this ruling was appealed to the United States
Court of Appeals for the Eleventh Circuit, which certified the question to our
Supreme Court. Id. at 522, (citing Prodigy Centers/Atlanta v. T-C Assoc., 127 F3d
1021, 1022 (11th Cir. 1997)). Our Supreme Court answered that question in the
affirmative, supporting its conclusion in part by reference to the charging order
statutes under the limited liability partnership acts and the Georgia Uniform
Partnership Act:
[e]ach statute provides a means by which a judgment creditor or a
partner may cause the diversion of monetary payments the partner
expects to receive from the partnership to the partner’s judgment
creditor. Under both statutory schemes, the judgment creditor must
initiate a collateral proceeding in which the creditor seeks a court order
charging the debtor partner’s partnership interest with payment of the
8
unsatisfied amount of the judgment, or serves process of garnishment on
the partnership. (OCGA §§ 14-9-703 (a); 14-9A-52 (a); 14-8-28 (a)). A
judgment creditor must initiate the identical collateral proceedings in
order to attach a lien to a chose in action. [Cit.]
Id. at 526 (4).
Appellants argue that the Court’s use of the phrase “initiate a collateral
proceeding” means that the application for a charging order must be filed in a wholly
separate action. However, we are not persuaded that Prodigy stands for the
proposition urged by appellants. First, the question of whether an entirely new
proceeding, meaning, according to appellants, a separate proceeding under a different
case number and possibly in a different court, must be initiated by a judgment creditor
to obtain a charging order against a member’s interests in a limited liability entity was
not at issue in Prodigy. Our appellate courts have “repeatedly cautioned that our
decisions stand only for the points raised by the parties and decided by the court.
Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.” (Citations and punctuation omitted.) Holton v. Physician
Oncology Svcs., L.P., 292 Ga. 864, 869-870 (2) (742 SE2d 702) (2013).
9
Moreover, appellants’ own statutory textual argument is antithetical to its
interpretation of Prodigy. In referencing “collateral proceedings” to obtain a charging
order, Prodigy cited to the charging order statutes under the limited liability
partnership acts and the Georgia Uniform Partnership Act. But both Georgia’s
Uniform Limited Partnership Act, OCGA § 14-9A-52 (a), (“ULPA”) and Georgia’s
Revised Uniform Limited Partnership Act, OCGA § 14-9-703 (a), (“RULPA”)4
contain language similar to the language used in OCGA § 14-11-504 (a), authorizing
a judgment creditor to bring an application for a charging order in “a court of
competent jurisdiction,” or a “competent court,” respectively, and each of these
statutes refers generally to “the court” that may issue the charging order.5 In addition,
Prodigy cited the Georgia Uniform Partnership Act’s charging order provision,
OCGA § 14-8-28, which appellants rely on, without distinguishing it from the limited
4
Georgia’s ULPA applies to limited partnerships existing before 1988, unless
the pre-existing limited partnership elects to adopt the provisions of Georgia’s
RULPA in writing. OCGA § 14-9A-2.1; Prodigy, 269 Ga. at 524, n.1.
5
OCGA § 14-9A-52 (a) provides: “On due application to a court of competent
jurisdiction by any judgment creditor of a limited partner, the court may charge the
interest of the indebted limited partner with payment of the unsatisfied amount of the
judgment debt. . . .” OCGA § 14-9-703 (a) provides: “On application to a competent
court by a judgment creditor of a partner or of any assignee of a partner, the court
may charge the partnership interest of the partner or such assignee with payment of
the unsatisfied amount of the judgment, with interest. . . .”
10
partnership charging order statutes, implying that the language should be read
consistently.
Thus, the language cited by appellants in Prodigy merely confirms that, beyond
obtaining a judgment establishing a debt, a creditor must initiate an additional
proceeding, collateral to the one establishing the debt, and request a separate order
from the court to charge a debtor’s interests in a limited liability company, limited
liability partnership, or partnership. See generally Brown v. King, 266 Ga. 890, 891
(1) (472 SE2d 65) (1996) (“a contempt action to enforce court-ordered child support
payments is an independent proceeding that is ancillary to the divorce action and not
a new civil action”). And the charging order statutes further direct that the additional
proceeding be initiated by a written application filed in a court of competent
jurisdiction.
However, that conclusion merely brings us to the ultimate issue in this case –
what is meant by a “court of competent jurisdiction” as that term is used in OCGA §
14-11-504 (a). And more specifically, whether jurisdiction and venue over the
judgment debtor and member of the limited liability company is sufficient or whether,
as appellants contend, a court is competent to issue a charging order only if
jurisdiction and venue over the limited liability company is proper.
11
As to this issue, we begin again with the charging order statute and the remedy
that it provides to a judgment creditor vis-à-vis the limited liability company. As an
initial matter, we note that OCGA § 14-11-504 (a) is silent as to whether the limited
liability company is to be made a party to the proceeding initiated by the application
for a charging order.
Instead, subsection (a) focuses on the judgment debtor/member’s interest in the
limited liability company, limits the rights of the judgment creditor under the
charging order: “[t]o the extent so charged, the judgment creditor has only the rights
of an assignee of the limited liability company interest,” and makes it clear that “[t]his
chapter does not deprive any member of the benefit of any exemption laws applicable
to his or her limited liability company interest.” OCGA § 14-11-504 (a). See also
OCGA § 14-11-502 (concerning assignment of a limited liability company interest).
Moreover, under OCGA § 14-11-504 (b), unless provided in the articles of
organization or in a written operating agreement, “a judgment creditor shall have no
right under this chapter or any other state law to interfere with the management or
force dissolution of a limited liability company or to seek an order of the court
requiring a foreclosure sale of the limited liability company interest.” See generally
L. Andrew Immerman & Bryan N. Baird, The Georgia LLC Act: Recent
12
Developments and Future Possibilities, 6 John Marshall L. J. 565, 597 (2013) (“The
amendment to section 14-11-504 (b) of the Georgia LLC Act clarifies that when a
creditor receives a judgment against a member or an assignee of an LLC interest, the
creditor is not thereby granted leave to interfere in the management of the LLC or to
take certain other actions that would be disruptive to the company’s business.”).
We glean from these provisions that the charging order is a mechanism by
which a judgment creditor can attach a member’s limited liability company interest
to satisfy an unpaid judgment, but that the charging order does not permit the
judgment creditor to replace the member or otherwise interfere in the governance of
the limited liability company. Moreover, it is the judgment debtor’s right to
possession of distributions in the future that is essentially being levied or charged.
Thus, from the limited liability company’s standpoint, it is business as usual except
that any distributions to the member subject to the charging order are diverted to the
judgment creditor. Because the limited liability company has no right or direct
interest that is affected by the charging order, we see no reason why it must be added
as a party to the proceeding to obtain the charging order. See Bank of America, N. A.
v. Freed, 983 N.E.2d 509, 520-521 (Ill. App. Ct. 2012) (rejecting contention that a
court must obtain jurisdiction over a limited liability company or partnership in order
13
to charge a judgment debtor’s distributional interest in those entities under similar
charging order statutes). Thus, we hold that under Georgia’s limited liability company
act, it is only necessary for a court to have jurisdiction over the judgment debtor to
have the authority to enter charging orders against the judgment debtor’s interest.
In the present case, there is no contention that the court that entered the
charging order did not have jurisdiction over Epstein and Kelly. Accordingly, and
because appellants assert no other error warranting reversal, we hereby affirm the
order of the trial court charging Epstein and Kelly’s interests in the named LLCs.
Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.
14