Felicia Thomas v. James Clinton, et al

Filing

Opinion issued by court as to Appellant-Cross Appellee Felicia D. Thomas. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. 14-14497X.--[Edited 04/09/2015 by DC]

Case: 14-14308

Date Filed: 04/09/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14308
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cv-01455-LSC

FELICIA D. THOMAS,
individually and on behalf of all
others similarly situated,
Plaintiff - Appellant
Cross Appellee,
versus
JAMES PAUL CLINTON,
STOKES & CLINTON PC,
Defendants - Appellees
Cross Appellants,
WILLIAM B. JACKSON, II,
Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(April 9, 2015)

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Before MARCUS, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Felicia Thomas appeals the district court’s grant of summary
judgment in favor of Defendants James Paul Clinton, William Jackson, and Stokes
& Clinton, P.C., based on Defendants’ efforts to collect debt owed by Plaintiff to
Defendants’ client, Credit Services of Mobile, LLC (“Credit Services” or the
“LLC”). Defendants cross-appeal the denial of Defendants’ motion for attorneys’
fees. No reversible error has been shown; we affirm.
Credit Services was an Alabama limited liability company organized for the
purpose of collecting and liquidating consumer debts. In October 2007, in
accordance with the terms of the LLC’s Articles of Incorporation, the LLC
dissolved due to the death of one of its members.
Following the LLC’s dissolution Defendant Clinton, the sole remaining
member of the LLC, began winding-up the LLC’s business and affairs. This
included attempting to collect on judgments already entered in favor of Credit
Services.

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In July 2006 (before the LLC’s dissolution), Credit Services obtained a
default judgment against Plaintiff. Plaintiff does not dispute the validity of the
default judgment order. In August 2012, Defendants -- in the name of Credit
Services -- filed a writ of garnishment against Plaintiff seeking to collect the
outstanding 2006 judgment plus interest. Defendants filed a second garnishment
proceeding against Plaintiff in July 2013, seeking again to collect the stilloutstanding 2006 judgment plus interest.
Plaintiff filed this putative class action against Defendants for alleged
violations of the Fair Debt Collection Practice Act, 15 U.S.C. § 1692 (“FDCPA”).
Briefly stated, Plaintiff contends that Defendants violated the FDCPA when they
filed garnishment proceedings on behalf of an entity that had dissolved under
Alabama law.1 The district court granted Defendants’ motion for summary
judgment and denied Defendants’ motion for attorneys’ fees.
We review the district court’s grant of summary judgment de novo, viewing
the evidence and all reasonable factual inferences in the light most favorable to the
nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
Summary judgment is proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Id.
1

Thomas abandons expressly her claims, under 15 U.S.C. §§ 1692e(2)(A) and 1692f(1), that
Defendants violated certain notice requirements of the FDCPA.
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“In rendering a decision based on state substantive law, a federal court must
decide the case the way it appears the state’s highest court would.” Ernie Haire
Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (quotations
omitted). Where the state’s highest court has not spoken to an issue, we look to
decisions of the state’s intermediate appellate courts unless we are “convinced by
other persuasive data that the highest court of the state would decide otherwise.”
Mesa Air Group, Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1131 n.8 (11th Cir.
2009).
In interpreting the meaning of a statute, the Alabama Supreme Court “looks
to the plain meaning of the words as written by the legislature.” See DeKalb Cnty.
LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). “Words used
in a statute must be given their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to interpret that
language to mean exactly what it says.” Id. Alabama courts look beyond the
language of a statute to determine legislative intent “only if there is no rational way
to interpret the words as stated.” Id.
Under Alabama law, a dissolved limited liability company may continue its
existence after dissolution to engage in business that is “necessary or appropriate to
wind up and liquidate its business and affairs.” Ala. Code § 10A-5-7.04(a).
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Alabama law provides expressly that a limited liability company’s dissolution does
not “[t]erminate or suspend a proceeding pending by or against the limited liability
company on the effective date of dissolution.” Id. § 10A-5-7.04(b)(2). Moreover,
the person responsible for winding-up the limited liability company’s business
after dissolution is authorized to, among other things, “prosecute and defend
actions and proceedings, whether civil, criminal, or administrative” and to
“perform other necessary and appropriate acts.” Id. § 10A-5-7.03(b).
Under this plain statutory language, Defendants were authorized, as part of
their efforts to wind-up Credit Services’s business, to file writs of garnishment
against Plaintiff.2 Credit Services obtained a valid default judgment against
Plaintiff before its dissolution. That judicial proceeding remained pending against
Plaintiff when the LLC dissolved. And the LLC’s dissolution did not terminate or
suspend automatically the proceeding. See Ala. Code § 10A-5-7.04(b)(2).
Defendant Clinton -- as the remaining member of the LLC engaged in winding-up
the LLC’s business by and through the LLC’s lawyers -- was authorized to
continue prosecuting the pending proceeding against Plaintiff. See id. § 10A-57.03(b). Such authority encompassed the filing of ancillary garnishment
2

Defendants were also authorized, as a matter of Alabama law, to recover post-judgment interest
on the outstanding 2006 judgment against Plaintiff. See Ala. Code § 8-8-10 (providing that
judgments shall bear interest); Birmingham Pain Ctr., Inc. v. Cosgrove, 896 So. 2d 538, 541
(Ala. Ct. App. 2004) (“Section 8-8-10 authorizes the payment of post-judgment interest” which
“continues to accrue on any final judgment or any portion thereof that remains unsatisfied”).
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proceedings against Plaintiff to enforce the pre-existing judgment. See Rice v.
State Farm Fire & Cas. Co., 628 So. 2d 582, 583 (Ala. 1993) (“A post-judgment
garnishment proceeding ‘is an ancillary proceeding seeking satisfaction of a prior
judgment, and not an original civil suit.’”).
Plaintiff contends, however, that Alabama law imposes a time limit on
Defendants’ ability to continue prosecuting the pending proceeding against her. 3
First, Plaintiff argues that a dissolved LLC must complete its winding-up
procedures -- including the prosecution of pending claims -- within two years after
dissolution. Nothing in the plain language of Alabama’s statutes imposes a twoyear cap. And Plaintiff’s reliance on the state trial court decision (which the
Alabama Supreme Court affirmed without opinion) and on the published
concurrence by an Alabama Supreme Court justice in Berks v. Cade 4 is
misplaced.5 Berks v. Cade involved an entirely different issue about when a

3

The parties do not dispute the applicability of Alabama’s general statutes of limitation
pertaining to the filing of garnishments or to the enforcement of final judgments. On appeal, we
address only whether Alabama law imposes an additional “special” time limitation -- under
Alabama’s Business and Nonprofit Entities Code -- on the ability of a dissolved LLC to file writs
of garnishment to enforce a final judgment against a third party.
4

See Cade v. Berks, No. 01-CV-2008-903634 (Cir. Ct. Jefferson Cnty., Nov. 19, 2010); Berks v.
Cade, No. 1110423, 2014 Ala. LEXIS 96 (Ala. June 27, 2014) (overruling the application for
rehearing without opinion).
5

Neither the state trial court decision nor Alabama Supreme Court’s affirmance without opinion
has binding precedential value. See Scrushy v. Tucker, 70 So. 3d 289, 309 (Ala. 2011) (state
trial court decisions have no precedential value); Mesa Air Group, Inc., 573 F.3d at 1131 n.8
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dissolved LLC may commence a new proceeding against a third party, and the
cited opinions say nothing about when a dissolved LLC may prosecute proceedings
that were pending at the time of dissolution. In the light of (1) the absence of an
express statutory time limit and (2) the plain statutory language providing that an
LLC’s dissolution does not terminate pending proceedings, we cannot infer that
Alabama law imposes a rigid two-year cap on a dissolved LLC’s ability to
prosecute pending proceedings.
We also cannot infer that Alabama law requires a dissolved LLC to
complete its winding-up procedures within a “reasonable” time after dissolution.
Alabama law provides that the person winding-up a dissolved LLC may, among
other things, “preserve the company business or property as a going concern for a
reasonable time.” See Ala. Code § 10A-5-7.03(b) (emphasis added). This phrase
is separated clearly by semicolons from the other listed winding-up activities,
including, in pertinent part, the phrase “prosecute and defend actions and
proceedings” and the phrase “perform other necessary and appropriate acts.” See
id. Under the plain statutory language -- and contrary to Plaintiff’s argument -- the
(this Court does not look to state trial court decisions to determine the law of a state); Ala. R.
App. P. 53(d) (“An order of affirmance issued by the Supreme Court . . . by which a judgment or
order is affirmed without a court opinion . . . shall have no precedential value”). Moreover,
nothing suggests that a published single-justice concurrence to an Alabama Supreme Court order
overruling -- without a court opinion -- an application for rehearing of a non-precedential
decision would, itself, be imperative. To the extent that these decisions constitute persuasive
authority, however, they are distinguishable from the issue involved in this appeal.
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term “for a reasonable time” modifies only the ability to maintain the LLC’s
business as a going concern and imposes no time limitation on the performance of
the other listed winding-up activities.6
Because Defendants were authorized, as a matter of Alabama law, to file the
pertinent writs of garnishment against Plaintiff in the name of Credit Services, we
affirm the district court’s grant of summary judgment. Moreover, because
Alabama law imposes no “reasonableness” limitation on the time a dissolved LLC
has to prosecute pending actions, the district court was within the scope of its
discretion in denying Plaintiff’s Fed.R.Civ.P. 56(d) motion seeking discovery
about the reasonableness of Defendants’ delay in filing the writs of garnishment.
Nothing evidences that Plaintiff acted in bad faith in pursuing her claim
against Defendants; the district court abused no discretion in denying Defendants’
motion for attorneys’ fees.
AFFIRMED.
6

We are aware of the language in Ala. Code § 10A-1-9.12(a)(3), which provides that “As soon
as reasonably practicable after a domestic entity is dissolved, the domestic entity shall: . . .
perform any other act required to wind up its business and affairs.” This provision applies “to all
entities formed under or governed by Chapters 2 to 11, inclusive, except to the extent, if any, that
any provision of this chapter is inconsistent with or as otherwise provided by the provision of
this title or other statutory or constitutional provisions specifically applicable to the entity.” Ala.
Code § 10A-1-1.02(a) (emphasis added). In concluding that Alabama law imposed no
unreasonable-delay restrictions on garnishments in a case like this one, the district court
discussed expressly only the language in section 10A-5-7.03. We take this approach to mean
that the district court concluded that the general provision in section 10A-1-9.12 (titled “Winding
up procedures”) was inapplicable because winding-up procedures specific to LLCs were
“otherwise provided” by section 10A-5-7.03 (titled “Winding up”).
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