Gaslowitz v. Stabilis Fund I, LP

• Decision Date: 12 March 2015
• Docket Number: A15A0433.,Nos. A14A2029,s. A14A2029
• Citation: 770 S.E.2d 245,331 Ga.App. 152
• Parties: GASLOWITZ et al. v. STABILIS FUND I, LP (two cases).
• Court: Georgia Court of Appeals

331 Ga.App. 152

770 S.E.2d 245

GASLOWITZ et al.

v.STABILIS FUND I, LP (two cases).

Nos. A14A2029

A15A0433.

Court of Appeals of Georgia.

March 12, 2015.

Craig M. Frankel, Atlanta, Leanne Marie Gilbert, for Appellant.

Ted William Hight III, Kevin Scott Kovalchik, Norcross, for Appellee.

Opinion

ELLINGTON, Presiding Judge.

In Case No. A14A2029, Adam Gaslowitz, Adam R. Gaslowitz & Associates, LLC (“G & A, LLC”), and Gaslowitz and Associates, Inc. (“G & A, Inc.”) (collectively, the “appellants”), appeal from the trial court's grant of Stabilis Fund I, LP's (“Stabilis”) motion for partial summary judgment on Stabilis's post-judgment petition for, among other relief, a charging order and an accounting. The appellants claim that the trial court erred in (i) issuing a charging order against Gaslowitz's membership interest in G & A, LLC and (ii) ordering an accounting of the assets of G & A, LLC. For the reasons that follow, we affirm the order issuing the charging order, but we reverse the order for an accounting of the assets of G & A, LLC. In Case No. A15A0433, the appellants appeal the trial court's order requiring that they, jointly and severally, post a supersedeas bond to preserve the supersedeas effect of their main appeal. For reasons set forth below, we affirm as to Gaslowitz but reverse as to G & A, Inc. and G & A, LLC.

Case No. A14A2029

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

So viewed, the record shows that on June 21, 2011, Stabilis obtained a judgment in the Superior Court of Fulton County against Gaslowitz, and two others,¹ in the total amount of $1,621,132.78. Stabilis filed a verified petition against the appellants seeking, among other things, a charging order against Gaslowitz's membership interest in G & A, LLC,² and “an accounting of the proceeds of G & A, LLC ... to adequately monitor Stabilis' rights.” Stabilis then moved for partial summary judgment on its claims for a charging order and for an accounting.

The evidence adduced in that proceeding shows that Gaslowitz is the sole member of G & A, LLC. In support of its motion for summary judgment, Stabilis's representative averred that the $1,621,132.78 judgment against Gaslowitz remained unpaid. In opposition, the appellants adduced evidence that $848,000 of the judgment debt had been collected through foreclosure on two properties, and that Stabilis had garnished certain bank accounts in furtherance of its collection efforts, although the appellants maintained that they were unaware of the amount collected thereby. Stabilis did not come forward with evidence as to the amount of the judgment that remained outstanding. The trial court found that, “[t]o the extent that the remaining amount of the judgment is unknown, that is not a bar to the charging order.” Rather, the trial court held, because Stabilis was a judgment creditor of Gaslowitz, it was “entitled to a charging order against Mr. Gaslowitz's membership interest in G & A, LLC, and to an accounting of the assets of that same company.” On this basis, the trial court granted Stabilis's motion for summary judgment.

1. The appellants argue that Stabilis failed to adduce evidence of the amount of the judgment debt, if any, that remains due, and that the trial court therefore erred in granting summary judgment on Stabilis's petition for a charging order. They also assert that it cannot be determined from the order what distributions are due Stabilis, nor when such distributions can again be paid to Gaslowitz, rendering the trial court's order impermissibly vague and indefinite. We find no merit in these claims.

The Georgia Limited Liability Company Act, OCGA §§ 14–11–100 through 14–11–1109, provides a means by which a judgment creditor of a member may cause the diversion of monetary payments the member expects to receive from the limited liability company to the member's judgment creditor. See generally Prodigy Centers/Atlanta v. T–C Assocs., 269 Ga. 522, 526(4), 501 S.E.2d 209 (1998). Specifically, “[o]n 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.”

OCGA § 14–11–504(a). See Word v. Stidham, 271 Ga.App. 435, 437, 609 S.E.2d 651 (2004) (“An interest in a limited liability company is personal property that may be charged with payment of an unsatisfied judgment against a member of the company.”). A charge against the debtor's interest does not give a direct remedy against the assets of the limited liability company, but grants “only the rights of an assignee of the limited liability company interest” to the extent so charged. OCGA § 14–11–504(a). See OCGA § 14–11–101(13) (defining “Limited liability company interest” as “a member's share of the profits and losses of a limited liability company and a member's right to receive distributions”). Thus, the charging order remedy entitles the creditor to receive the distributions of the limited liability company, which the member “would otherwise have been entitled to receive, up to the unsatisfied amount of the judgment debt.” Nigri v. Lotz, 216 Ga.App. 204, 205(2), 453 S.E.2d 780 (1995) (applying OCGA § 14–9A–52 ).³ See OCGA § 14–11–502(2) (providing that an assignee of an interest in a limited liability company is entitled to receive distributions to which an assignor was entitled, to the extent assigned).

As the appellants contend, Stabilis failed to come forward with evidence as to the exact amount of the judgment that remains unsatisfied.⁴ But this does not mean that there remain outstanding issues of material fact which preclude summary judgment on Stabilis's petition for a charging order. In order to secure a charging order, OCGA § 14–11–504(a) contemplates that the applying party show that it is a judgment creditor of a member of a limited liability company. The court may then charge the member's limited liability company interest “with payment of the unsatisfied amount of the judgment with interest.” Id. Thus, the charging order gives the judgment creditor the right to receive distributions to which the member would otherwise be entitled on account of the member's limited liability company interest until the judgment with interest is satisfied. But the amount of distributions subject to the charging order will not necessarily correspond to the specific amount of the judgment that remains unpaid on the date that the charging order is issued. The unsatisfied amount of the judgment could be reduced or even eliminated by funds received from other sources, especially where, as here, there are co-debtors on the judgment. Thus, we conclude, OCGA § 14–11–504(a) does not reasonably require that, as a prerequisite to the issuance of a charging order, the judgment creditor establish the specific amount of the judgment that remains unpaid on the date the charging order is issued.⁵ It follows that the trial court did not err in granting Stabilis's motion for summary judgment.

The appellants also contend that, because the order issued by the trial court gives no direction to the parties as to the extent of funds to be distributed thereunder, the order is unenforceably vague. A charging order, however, cannot extend past the satisfaction of the underlying judgment because, by definition, the charge can only be against the “unsatisfied amount” of the judgment. OCGA § 14–11–504(a).⁶ Accordingly, the charging order at issue here does not continue indefinitely or contemplate an unlimited charge on Gaslowitz's membership interest, but would remain until the $1,621,132.78 judgment, with interest, is satisfied. Nothing would preclude Gaslowitz from moving to extinguish the charge on the grounds that the judgment has been satisfied, and the trial court's order does not allow Stabilis to collect or retain payments beyond those necessary to satisfy its judgment. We find no error.

2. The appellants also argue that the trial court erred in ordering that G & A, LLC provide an accounting of its assets to Stabilis. We agree with the appellants that Stabilis established no basis on which the trial court could order the accounting.

In its brief in support of its motion below, Stabilis contended that it was seeking “an accounting of Adam Gaslowitz's membership interest in [G & A, LLC] to determine what assets can be used to satisfy [its] outstanding judgment,” and Stabilis claimed entitlement to this accounting “as a matter of a law.” Thus, Stabilis appears to have requested an accounting on the ground that the accounting would show assets that could be applied toward payment of its judgment. See Sampson v. Haywire Ventures, Inc., 293 Ga.App. 779, 781(4), 668 S.E.2d 286 (2008) (party seeking corporate accounting would be entitled to an accounting if “the facts alleged showed that on an accounting the petitioner will likely be entitled to recover judgment for some amount.”) (punctuation and footnote omitted). A charging order, however, gives no direct remedy against company property, Nigri v. Lotz, 216 Ga.App. at 205(2), 453 S.E.2d 780, and company assets shown in an accounting would not be subject to satisfaction of Gaslowitz's debt. “A member has no interest in specific limited liability company property.” OCGA § 14–11–501(a). See generally Acree v. McMahan, 276 Ga. 880, 881, 585 S.E.2d 873 (2003) (a third party creditor may not disregard corporate form so as to reach corporate assets to satisfy claims against an individual corporate...