Lamb v. First Union Brokerage Services, Inc.

589 S.E.2d 300, 263 Ga. App. 733, 2003 Fulton County D. Rep. 3168, 2003 Ga. App. LEXIS 1311
CourtCourt of Appeals of Georgia
DecidedOctober 22, 2003
DocketA03A1623
StatusPublished
Cited by14 cases

This text of 589 S.E.2d 300 (Lamb v. First Union Brokerage Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamb v. First Union Brokerage Services, Inc., 589 S.E.2d 300, 263 Ga. App. 733, 2003 Fulton County D. Rep. 3168, 2003 Ga. App. LEXIS 1311 (Ga. Ct. App. 2003).

Opinion

Adams, Judge.

In this appeal, T. Gordon Lamb challenges the denial of his motion for summary judgment and the grant of the same to First Union Brokerage Services, Inc. (First Union Brokerage) and First Union National Bank (First Union). Lamb contends that the trial court overlooked the law applicable to revocable agencies and failed to consider the legal duties that an agent owes an owner of a brokerage account.

This case resulted from two garnishment proceedings. On June 29, 2000, First Union was served with a summons of garnishment in PRL USA Holdings, Inc. f/k/a Polo Ralph Lauren Corporation v. Bang Sung Kang a/k/a Ki Taek Kang, First Union National Bank, Garnishee. About two weeks later, on July 12, 2000, First Union Brokerage was likewise served with a summons of garnishment in PRL USA Holdings, Inc. f/k/a Polo Ralph Lauren Corporation v. Bang Sung Kang a/k/a Ki Taek Kang, First Union Brokerage Services, Inc., Garnishee. According to its garnishment affidavit, PRL USA Holdings, Inc. (PRL) had obtained a judgment against Kang in federal district court and recorded a writ of execution for $1,302,477.94 in the general execution docket and lien docket in Gwinnett County. PRL sought to recover its judgment from Kang.

Kang testified that after receiving a copy of the first garnishment, he had met the next day with Don Purviance, a First Union vice president. After learning from Purviance that First Union and First Union Brokerage were separate corporate entities, “I requested that my brokerage accounts, which had not been garnished, be immediately cashed out or closed. I also advised him that First Union Brokerage Services, Inc. was not authorized to act in any further capacity as my broker agent.” According to Kang, when Purviance telephoned First Union Brokerage, Purviance was advised

that they would not honor my instructions on the two brokerage accounts, as they indicated that there was a loan for [734]*734which one of the accounts was being held as collateral and that the other account was used as collateral or security for any CAP account overdrafts and thereby might be considered to be connected to a part of the CAP account.1

On July 17, 2000, Kang filed a traverse in the second garnishment action, making the stark assertion that PRL’s garnishment affidavit was “untrue or legally insufficient.” On January 2, 2001, the trial court denied Kang’s traverse and directed First Union and First Union Brokerage to pay the funds subject to the consolidated garnishment actions into the registry of the court. That same day, the court entered a consent order directing the disbursement of the funds in two separate payments of $112,420.12 each.

Thereafter, Kang filed a motion to vacate/set aside that order. Kang argued that the funds in his brokerage accounts were not subject to the second garnishment action because after he terminated First Union Brokerage’s authority over his accounts, it was no longer his agent. He claimed that the brokerage “acted improperly and without authority when it refused to return to Defendant his securities/ assets.” In entering an order on March 12, 2002, denying Kang’s motion to vacate/set aside, the trial court implicitly rejected these arguments. We find nothing in the record to indicate that the decision in the consolidated garnishment action was ever appealed.

On June 23, 2002, Kang assigned all of his rights, causes of action, or claims of any nature that he had against First Union Brokerage and First Union to Lamb. As the assignee, Lamb filed the underlying suit against First Union Brokerage and First Union for allegedly wrongfully seizing and disbursing funds from Kang’s accounts. The gravamen of Lamb’s lawsuit was that by failing to timely honor Kang’s valid request to close his brokerage accounts, First Union Brokerage caused the funds in Kang’s accounts to be subject to garnishment by PRL. Lamb claimed that the brokerage’s delay in releasing Kang’s funds had afforded PRL sufficient time to file the second garnishment, thus enabling PRL to seize the funds in Kang’s brokerage accounts.

To support summary adjudication, First Union and First Union Brokerage offered copies of Kang’s banking/investment records and the testimony of a senior compliance officer, Marilyn L. Brucki with Wachovia Securities, First Union Brokerage’s successor-in-interest. Brucki explained that Kang’s brokerage account and his bank account were linked together. Brucki testified that Kang had a CAP account that consisted of a brokerage account at First Union Broker[735]*735age and a bank account at First Union with the funds in the brokerage account securing any margin debt in the CAP account on the bank side. Brucki testified that “[t]he funds in the brokerage side of the CAP account were used as collateral for any overdrafts in the bank side of the account” and that “in early July 2000, the brokerage account secured a margin debt of approximately $12,000.00.” Brucki testified that Kang also had a brokerage account that was a “loan account” that “could not be closed without approval from the loan officer facilitating the account.” Brucki testified that the loan officer facilitating Kang’s account did not give approval to release the funds in Kang’s account “until after the July 12, 2000 Summons of Garnishment was issued.”

Lamb submitted his own affidavit in which he recounted accompanying Kang to First Union when Kang had attempted to close his brokerage accounts. Lamb testified that Purviance told Kang that First Union Brokerage “would not close the accounts until they had discussed the matter with their counsel, as they were concerned that they might be subject to the Garnishment Action on First Union National Bank.” Lamb testified that despite making “numerous attempts” to have the brokerage accounts liquidated and released to Kang, First Union Brokerage withheld the funds from Kang, thereby subjecting them to the second garnishment action.

In finding First Union and First Union Brokerage entitled to judgment as a matter of law, the trial court determined that no genuine issues of material fact remained for resolution. Lamb appeals.

1. Lamb contends that the trial court erred in denying his motion for summary judgment. He claims that as a separate corporate entity from First Union, First Union Brokerage was not subject to the garnishment action filed against First Union, and that it acted improperly in retaining Kang’s funds. He contends that Kang had an absolute right to close his accounts with First Union Brokerage and that by violating Kang’s instructions, First Union Brokerage, as Kang’s agent, became liable for the consequences of breaching its fiduciary duty to Kang. Lamb argues that even assuming that Kang had a margin debt of approximately $12,000, all funds in excess of that amount should have been released to Kang. Lamb asserts that Kang’s reasons for closing his brokerage accounts were not a valid concern of the appellees. Lamb contends that:

the actions of the Appellees in refusing to release funds until receipt of the second Garnishment action clearly demonstrate that the Appellees had decided that Kang should not be allowed the opportunity to hide his assets from his Judgment creditor and that they would retain same until receiv[736]*736ing a Garnishment against the proper entity from said Judgment creditor.

We need not, however, consider the propriety of Lamb’s argument that Kang was improperly deprived of the opportunity to hide assets from his judgment creditor.

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Cite This Page — Counsel Stack

Bluebook (online)
589 S.E.2d 300, 263 Ga. App. 733, 2003 Fulton County D. Rep. 3168, 2003 Ga. App. LEXIS 1311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamb-v-first-union-brokerage-services-inc-gactapp-2003.