Mossy Dell, Inc. v. AB & T National Bank (In re Beauchamp)

500 B.R. 235, 2013 WL 5406437, 2013 U.S. Dist. LEXIS 136965
CourtDistrict Court, M.D. Georgia
DecidedSeptember 25, 2013
DocketBankruptcy Appeal No. 1:13-CV-14 (WLS)
StatusPublished

This text of 500 B.R. 235 (Mossy Dell, Inc. v. AB & T National Bank (In re Beauchamp)) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mossy Dell, Inc. v. AB & T National Bank (In re Beauchamp), 500 B.R. 235, 2013 WL 5406437, 2013 U.S. Dist. LEXIS 136965 (M.D. Ga. 2013).

Opinion

ORDER

W. LOUIS SANDS, District Judge.

Presently pending before the Court is Appellant Mossy Dell Inc.’s (“Mossy Dell”) appeal of the United States Bankruptcy Court for the Middle District of Georgia’s November 28, 2012 Memorandum Opinion holding that a transfer restriction on Mossy Dell’s stock was invalid and unenforceable under Georgia law. (See Doc. 1.) For the reasons discussed below, the Court concludes that the Bankruptcy Court’s Memorandum Opinion is AFFIRMED-IN-PART AND REVERSED-IN-PART.

BACKGROUND

On December 28, 1972, Robert B. Lee and Flora S. Lee incorporated Flo-Rob, Inc. (“Flo-Rob”) under the laws of Georgia. (Doc. 1 at 50.) Robert and Flora Lee had two children, Barbara and Adelaide. (Id. at 107.) Barbara and Adelaide have since married and are now members of the Beauchamp and Leach families, respectively. (Id.) Flo-Rob was engaged in real estate, farming, and buying and selling securities. (Id. at 50.) For a period of time, the Beauchamps and Leaches shared in the operation of Flo-Rob. (Id. at 107.) No restrictions were placed on the ownership or transfer of Flo-Rob stock until 1996. (Id.) At that time, the board of directors amended the bylaws to require [238]*238shareholders to give the corporation the right of first refusal before selling stock. (Id. at 108.)

In 2009, after tensions developed between the Beauchamps and Leaches in relation to the operation of Flo-Rob, the families decided to split the assets into two corporations. (Id. at 97.) The Leaches kept their stock in Flo-Rob, and Mossy Dell was formed to receive the Beau-champs’ share of assets. (Id. at 108.) When Mossy Dell was incorporated on July 14, 2009, its articles of incorporation provided that its shares could only be transferred to lineal descendants of Robert and Flora Lee, and the shares could not be transferred at all for ten years.1 (Id. at 73.) Contemporaneously with the incorporation of Mossy Dell, Flo-Rob amended its bylaws to provide for the same restriction. (Id. at 108.)

As a result of the asset transfer, Robert Beauchamp (“Debtor”), the debtor in the above-captioned matter, received 4,000 shares of Mossy Dell. (Id. at 95-96.) On June 12, 2009, shortly before Mossy Dell’s incorporation and the placement of the transfer restriction on the shares, AB & T National Bank (“AB & T National”) obtained a judgment against Debtor in the Tenth Judicial Circuit Court in and for Jefferson County, Alabama, in the amount of $1,293,671.49. (Id. at 71.) On September 21, 2009, the judgment was domesticated by Order of the Superior Court of Dougherty County, Georgia. (Doc. 1-3 at 7.) Debtor’s 4,000 shares of Mossy Dell stock were seized and sold at a public sale to AB & T National on October 13, 2009. (Doc. 1 at 109.) AB & T National demanded that Mossy Dell issue a new stock certificate showing it as the owner. (Doc. 1-3 at 5.) Mossy Dell refused and the dispute giving rise to the instant matter followed. (Id.)

On November 3, 2010, AB & T National filed suit in Superior Court in Lee County, Georgia, seeking to compel Mossy Dell to surrender the stock certificate owned by Debtor and issue a new stock certificate reflecting AB & T National as the owner. (Doc. 1-2 at 3.) In its complaint, AB & T National alleged that the purpose of the transfer restriction was “to defraud creditors in general and [AB & T National] in particular.” (Doc. 1-3 at 4.) Mossy Dell denied that allegation, and the other shareholders of Mossy Dell denied knowledge of Debtor’s financial condition or the judgment against him at the time of Mossy Dell’s incorporation. (See Doc. 1 at 132-33.) Instead, Mossy Dell claimed that the purpose of the transfer restriction was to ensure that the ownership of the company remained with the families of Robert and Flora Lee, and was consistent with a “long standing family tradition.” (Doc. 1-3 at 27.)

On May 19, 2011, AB & T National filed its Motion for Summary Judgment and brief in support thereof in Lee County Superior Court. (Doc. 1 at 105.) In its Motion for Summary Judgment, AB & T National argued that the circumstances surrounding the placement of the restriction on the stock indicated fraud. (Id. at 112.) Mossy Dell responded and argued that no fraud was involved since the family had no knowledge of Debtor’s financial situation. (Id. at 128 ¶ 26.) Following Mossy Dell’s response to its Motion for Summary Judgment, AB & T National filed Supplemental Brief in Support of its Motion for Summary Judgment. (Id. at [239]*239115.) Therein, AB & T National argued that the restriction was manifestly unreasonable and therefore unenforceable under Ga.Code § 14-2-627(d)(4). (Id. at 117.) In support of this theory, AB & T National urged that “[i]t cannot seriously be argued that a situation such as the one in the case at bar, which converts freely alienable shares of stock that are subject to seizure by a creditor into shares of stock that are not subject to seizure by a creditor which is accomplished after a judgment is entered against the stockholder is not manifestly unreasonable and arguably a violation of the Uniform Fraudulent Transfers Act.” (Id. at 117.)

On January 20, 2012, Debtor filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. (Id. at 1.) On February 28, 2012, Debtor filed a Notice of Removal in the United States Bankruptcy Court for the Middle District of Georgia. (Id.) The Chapter 7 Trustee filed a Motion to Intervene on June 6, 2012, which was granted by the Bankruptcy Court on July 9, 2012. (Id. at 6, 13.) On September 24, 2012, AB & T National filed a Motion for Summary Judgment in the Bankruptcy Court, but requested the Court to review all documents and motions submitted in Lee County Superior Court. (Id. at 36.) Appellant responded on October 19, 2012, and requested the Court to do the same. (Id. at 120.)

On November 28, 2012, United States Bankruptcy Judge James D. Walker, Jr. issued a Memorandum Opinion granting summary judgment in favor of AB & T National. (Id. at 154.) The Bankruptcy Court held that the restriction prohibiting any transfer of stock for ten years (“ten-year restriction”) and the restriction prohibiting transfer to non-family members (“non-family restriction”) were unenforceable. (Id. at 165.) The Bankruptcy Court noted that transfer restrictions are valid under Georgia law if (1) adopted for a reasonable purpose, and (2) it fits within one of the four categories set forth in Ga.Code § 14-2-627(d). (Id. at 162.) The Court held the restrictions invalid because they did not fit within a Ga.Code § 14-2-627(d) category. (Id. at 165.)

As to the non-family restriction, the Court found that the only category that was potentially applicable was Ga.Code § 14-2-627(d)(4). (See id.) That section permits a restriction that prohibits transfer of shares to “designated persons or classes of persons, if the prohibition is not manifestly unreasonable.” (Id.) The Court held that the restriction was invalid because it did not “exclude ‘designated persons or a class of persons’ ... it does the inverse.

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Bluebook (online)
500 B.R. 235, 2013 WL 5406437, 2013 U.S. Dist. LEXIS 136965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mossy-dell-inc-v-ab-t-national-bank-in-re-beauchamp-gamd-2013.