Disalvo Props., LLC v. Bluff View Commercial, LLC
| Decision Date | 16 June 2015 |
| Docket Number | No. ED 101977,ED 101977 |
| Citation | 464 S.W.3d 243 |
| Parties | Disalvo Properties, LLC, Appellant, v. Bluff View Commercial, LLC, Defendant, and Debi Purvis, Respondent. |
| Court | Missouri Court of Appeals |
Steven W. Koslovsky, 7733 Forsyth Blvd., Ste. 1100, St. Louis, MO 63105, for Appellant.
Steven M. Hamburg, 231 South Bemiston, Ste. 1111, Clayton, MO 63105, for Respondent.
DiSalvo Properties, LLC (“Appellant”) appeals the judgment denying its request for a court-ordered foreclosure and sale of the membership interests held by Debi Purvis (“Respondent”) in two Missouri limited liability companies. We affirm.
In October 2010, Appellant filed a petition asserting two counts of fraud against Respondent.1 Respondent did not respond to the petition, and in January 2011 the trial court entered a $1,501,041 default judgment against Respondent (“the underlying judgment”).
As of May 2014, the amount of the underlying judgment against Respondent remained unsatisfied. Therefore, Appellant filed an application for a charging order against the membership interests owned by Respondent in two Missouri limited liability companies, Perrydise Properties, LLC and WR Management, LLC (“the two Missouri LLC's”), for the amount of the underlying judgment plus post-judgment interest. Appellant's application for a charging order requested the trial court to, inter alia, order Respondent's membership interests in the two Missouri LLC's “to be foreclosed and sold by the Sheriff of St. Louis County at public sale.”
On August 1, 2014, the trial court entered a charging order in favor of Appellant and against Respondent's membership interests in the two Missouri LLC's for the amount of the underlying judgment plus post-judgment interest. The trial court also ordered the parties to file memoranda of law on the issue of whether the court could order a foreclosure and sheriff's sale of the membership interests.
Thereafter, on August 13, 2014, the trial court entered a judgment denying Appellant's request for a court-ordered foreclosure and sale of Respondent's membership interests in the two Missouri LLC's. In denying Appellant's requested relief, the trial court found “[a] foreclosure and [s]heriff's [s]ale is not available to a [j]udgment [c]reditor who has obtained a [c]harging [o]rder on the [m]embership [i]nterest of a [m]ember of a Missouri limited liability company.” This appeal followed.
In Appellant's sole point on appeal, it asserts the trial court erred in denying its request for a court-ordered foreclosure and sale of the charged membership interests in the two Missouri LLC's. Appellant maintains such a remedy is authorized by Missouri statutes and case law.
As with any court-tried case, we review a trial court's judgment involving the entry of a charging order pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Regions Bank v. Alverne Associates, LLC, 456 S.W.3d 52, 55 (Mo.App.E.D.2014). Accordingly, we will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 55.
Statutory interpretation is a question of law which this Court reviews de novo. Dynasty Home, L.C. v. Public Water Supply District Number 3 of Franklin County, 453 S.W.3d 876, 879 (Mo.App.E.D.2015). Our primary rule in interpreting statutes is to determine the intent of the legislature from the language used, to give effect to that intent, and to consider the words in their plain and ordinary meaning. Id.
In ascertaining legislative intent, courts are guided by established rules of statutory construction, including the rule known as “expressio unius est exclusio alterius ,” which means, “the express mention of one thing implies the exclusion of another.” McCoy v. The Hershewe Law Firm, P.C., 366 S.W.3d 586, 593–94 (Mo.App.W.D.2012) (quotations omitted). This particular rule, which should be used with great caution, allows an inference that obvious omissions by the legislature are generally presumed to be intentional exclusions. Id. at 594 ; Six Flags Theme Parks, Inc. v. Director of Revenue, 179 S.W.3d 266, 269–70 (Mo. banc 2005). It is only proper to use the rule of expressio unius est exclusio alterius “when it would be natural to assume by a strong contrast that [ ] which is omitted must have been intended for the opposite treatment.” Six Flags, 179 S.W.3d at 269–70.
We presume the General Assembly legislates with knowledge of existing laws. Turner v. School Dist. Of Clayton, 318 S.W.3d 660, 667 (Mo. banc 2010). Accordingly, when engaging in statutory interpretation, “it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times.” Dodson v. City of Wentzville, 216 S.W.3d 173, 177 (Mo.App.E.D.2007) (quotations omitted).
In this case, Appellant, a judgment creditor of Respondent, obtained a charging order against Respondent's membership interests in the two Missouri LLC's. As recently explained by this Court, “[a] charging order is a post-judgment remedy that allows [a] judgment creditor of an individual debtor-member of a limited liability company (or a partnership) to enforce a judgment by charging the individual member's distributional interests with the unsatisfied amount of a judgment.” Regions Bank, 456 S.W.3d at 56. Moreover, a charging order entered against a membership interest of an LLC or a partnership interest requires an LLC or partnership “to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.” Id. (quotations omitted).
This case raises an issue of first impression under Missouri law: whether a foreclosure or court-ordered sale of charged membership interests in a limited liability company (“LLC”) is a remedy authorized by Missouri statutes or case law.
There are three Missouri statutes which authorize charging orders as a post-judgment remedy for judgment creditors of individual debtors who hold interests in LLCs or partnerships: section 347.119 RSMo 20002 of the Missouri Limited Liability Company Act3 (“the Missouri LLC Act”) authorizes a charging order to be entered against an individual debtor-member's interest in an LLC; section 359.421 of the Uniform Limited Partnership Law4 authorizes a charging order to be entered against an individual debtor-partner's interest in a partnership; and section 358.280.1 of the Uniform Partnership Law5 authorizes a charging order to be entered against an individual debtor-partner's interest in a partnership.
Section 347.119 of the Missouri LLC Act states, in full:
On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the member's interest in the limited liability company with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the member's interest. Sections 347.010 to 347.187 do not deprive any member of the benefit of any exemption laws applicable to his interest in the limited liability company.
A foreclosure or court-ordered sale of charged membership interests in an LLC is not expressly contemplated by section 347.119 or any other section of the Missouri LLC Act.6 See id .; see generally sections 347.010 to 347.187.
Section 359.421 of the Uniform Limited Partnership Law, which governs limited partnerships, states, in full:
On application to a court of competent jurisdiction by any judgment creditor of a partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the partnership interest. This chapter does not deprive any partner of the benefit of any exemption laws applicable to his partnership interest.
This language of section 359.421 is nearly identical to the language of section 347.119 of the Missouri LLC Act and does not expressly contemplate a foreclosure or court-ordered sale of charged partnership interests. See sections 359.421 and 347.119. Similarly, no other section of the Uniform Limited Partnership Law expressly contemplates a foreclosure or court-ordered sale of charged partnership interests. See generally Chapter 359. However, section 359.671 of the Uniform Limited Partnership Law does expressly provide: “In any case not provided for in this chapter, the provisions of the [U]niform [P]artnership [L]aw govern.”
Section 358.280 of the Uniform Partnership Law states, in relevant part:
(emphasis added). Accordi...
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