TRUIST BANK F/K/A BRANCH BANKING AND TRUST COMPANY v. GORDON D. STARK ( 2021 )

SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 5, 2021
In the Court of Appeals of Georgia
A20A2000. TRUIST BANK f/k/a BRANCH BANKING AND
TRUST COMPANY v. STARK.
PHIPPS, Senior Appellate Judge.
Truist Bank appeals from a final judgment of the trial court in which it found
that approximately $104,000 in an account held by Gordon Stark was subject to the
twenty-five percent disposable earnings limitation on garnishment under former
OCGA § 18-4-5 (a) (1).1 For the reasons that follow, we reverse.
Appellate courts review factual determinations in a garnishment proceeding
under the “any evidence” standard and we are bound by the trial court’s findings as
long as there is any evidence to support them. A. M. Buckler & Assoc., Inc. v.
1
The current version of OCGA § 18-4-5 took effect in January 2021. Throughout
this opinion, all citations to OCGA § 18-4-5 will refer to the prior version in effect in 2019,
at the time this garnishment action was initiated.
Sanders, 305 Ga. App. 704, 707-708 (1) (700 SE2d 701) (2010). But “[w]hen the
evidence is uncontroverted and no question of witness credibility is presented . . . the
trial court’s application of the law to undisputed facts is subject to de novo appellate
review.” Stoker v. Severin, 292 Ga. App. 870, 871 (665 SE2d 913) (2008).
So viewed, the record shows that Truist obtained a judgment against Stark in
the amount of $768,663.47. In December 2019, Truist filed a garnishment action
naming Wells Fargo Bank, a financial institution, as the garnishee and seeking funds
in Stark’s account. Wells Fargo filed an answer to the garnishment, stating that it held
$129,968.74 of Stark’s money, which it then paid into the trial court’s registry. Stark
filed a claim asserting that $104,318.62 of the funds in his account were “exempt
from garnishment by virtue of being retirement benefits” pursuant to the provisions
of OCGA § 18-4-5.2 The parties do not dispute that the remaining $25,650.12 in the
account is subject to garnishment.
The trial court held a trial on Stark’s claim. Stark introduced evidence that he
received the $104,318.62 at issue from the ManpowerGroup Nonqualified Savings
Plan as a lump sum on July 2, 2019, following his separation from employment with
2
The written pleadings in the record state that the disputed amount is $104,318.62,
while at trial, the amount was repeatedly referred to as $104,318.52.
2
ManpowerGroup. Stark also introduced a copy of the savings plan summary, which
stated that it “is intended to be an unfunded plan that provides deferred compensation
benefits for a select group of management or highly compensated employees of
ManpowerGroup.” The parties argued over whether the funds were subject to the
disposable earnings limitation in OCGA § 18-4-5 (a) (1).
At the conclusion of the trial, the court issued an order finding that the
disposable earnings limitation applied to the lump sum payment of $104,318.62.
Accordingly, the trial court ruled that Truist was entitled to garnish no more than
$51,729.77, which constitutes the sum of the $25,650.12 that Truist and Stark agreed
was not subject to any garnishment exemption or limitation, plus twenty-five percent
of the $104,318.62. The trial court ordered disbursement of the remaining funds in
the registry to Stark.
Truist filed an application for a discretionary appeal, which this Court granted.
Thereafter, Truist filed a timely notice of appeal.
1. Truist argues that the trial court erred in ruling that the disposable earnings
limitation applies to funds from an unfunded plan as described in OCGA § 18-4-6 (a)
(3). We agree.
3
To resolve this issue, we must analyze the interplay between OCGA §§ 18-4-5
(a) (1), 18-4-6 (a) (2), and 18-4-6 (a) (3). We note at the outset that in the trial court,
the parties agreed that OCGA § 18-4-6 (a) (3) applies to the disputed funds.3
Under Georgia’s garnishment statutory scheme,”[a]ll money or other property
of the defendant in the possession or control of the garnishee . . . shall be subject to
the process of garnishment[.]” OCGA § 18-4-4 (b). But some property is exempt from
garnishment. Pertinent to this appeal, OCGA § 18-4-6 (a) states:
(1) Certain earnings or property of the defendant may be exempt from
the process of garnishment.
(2) Funds or benefits from an individual retirement account or from a
pension or retirement program shall be exempt from the process of
garnishment until paid or otherwise distributed to a member of such
program or beneficiary thereof. Such funds or benefits, when paid or
otherwise distributed to such member or beneficiary, shall be exempt
from the process of garnishment only to the extent of the limitations
provided in Code Section 18-4-5 for other disposable earnings, unless
a greater exemption is otherwise provided by law.
3
On appeal, Stark argues that OCGA ' 18-4-6 (a) does not apply because the funds
were not in the unfunded plan, but rather in his personal account at Wells Fargo. Because
Stark raises this argument for the first time on appeal, we will not consider it. See Hall v.
Ross, 273 Ga. App. 811, 814 n. 12 (616 SE2d 145) (2005) (“[T]his Court will not address
arguments raised for the first time on appeal.”).
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(3) Funds in an unfunded plan maintained by an employer primarily for
the purpose of providing deferred compensation for a select group of
management or highly compensated employees shall not be exempt from
the process of garnishment.
With respect to property that is subject to garnishment, OCGA § 18-4-5 (a) sets
out a disposable earnings limitation, stating:
(1) Subject to the limitations set forth in Code Section[] 18-4-6 . . . the
maximum part of disposable earnings for any work week which is
subject to garnishment shall not exceed the lesser of:
(A) Twenty-five percent of the defendant’s disposable earnings for that week;
or
(B) The amount by which the defendant’s disposable earnings for that week
exceed $217.50.
(2) In case of earnings for a period other than a week, the proportionate fraction or
multiple of 30 hours per week at $7.25 per hour shall be used.
5
Truist argues that because the funds described OCGA § 18-4-6 (a) (2) are
explicitly limited by the disposable earnings limitation in OCGA § 18-4-5, and no
reference is made to OCGA § 18-4-5 in OCGA § 18-4-6 (a) (3), then unfunded plans
are therefore not limited by OCGA § 18-4-5 in any manner. We agree with this
construction.
“The fundamental rules of statutory construction that require us to construe the
statute according to its terms, to give words their plain and ordinary meaning, and to
avoid a construction that makes some language mere surplusage. At the same time,
we must seek to effectuate the intent of the legislature.” Stone v. Stone, 297 Ga. 451,
452 n. 3 (774 SE2d 681) (2015) (citation and punctuation omitted). OCGA § 18-4-6
(a) (2) explicitly provides that funds from an individual retirement account or from
a pension or retirement program, after distribution to the beneficiary, are exempt to
the extent of the limitations provided in OCGA § 18-4-5. In contrast, OCGA § 18-4-6
(a) (3), in describing funds in an unfunded plan, does not refer to OCGA § 18-4-5 or
indicate that funds paid from an unfunded plan are exempt at all.
“Under the statutory interpretation doctrine of expressio unius est exclusio
alterius, where [the General Assembly] includes particular language in one section
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of a statute but omits it in another section of the same Act, it is generally presumed
that [the General Assembly] acts intentionally and purposely in the disparate
inclusion or exclusion.” Grange Indem. Ins. Co. v. Burns, 337 Ga. App. 532, 537-538
(1) (a) (788 SE2d 138) (2016) (citation and punctuation omitted). As a result, we
construe OCGA § 18-4-5 to only apply in this context to OCGA § 18-4-6 (a) (2). See
Padgett v. City of Moultrie, 229 Ga. App. 500, 503 (1) (494 SE2d 299) (1997) (“[I]f
some things . . . are expressly mentioned, the inference is stronger that those omitted
are intended to be excluded than if none at all had been mentioned. The omission of
any such reference from the Code subsection must be regarded as deliberate.”)
(citations and punctuation omitted). If the General Assembly had desired to subject
funds from an unfunded plan to the earnings limitation, it could have done so as it did
with the type of funds mentioned in subsection OCGA § 18-4-6 (a) (2). See Dept. of
Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995)
(where General Assembly expressly mentioned ‘state officer or employee’ in two
subsections of statute, it was presumed to have intentionally omitted it from a third
subsection).
Moreover, we are not authorized to read the disposable earnings limitation into
OCGA § 18-4-6 (a) (3), because doing so would render the disposable earnings
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limitation expressly mentioned in OCGA § 18-4-6 (a) (3) mere surplusage. See State
of Ga. v. Free At Last Bail Bonds, 285 Ga. App. 734, 737 (647 SE2d 402) (2007)
(Courts must interpret statutes “as a whole, striving . . . to avoid constructions that
make some language mere surplusage.”) (citations and punctuation omitted).
Additionally, such a reading would be “tantamount to adding language to the statute,
which we cannot do. If the General Assembly desired to include [a reference to
OCGA § 18-4-5 in OCGA § 18-4-6 (a) (3)], it would have done so.” Hillman v. Bord,
347 Ga. App. 651, 655 (1) (820 SE2d 482) (2018) (physical precedent only). See also
Catoosa County v. Rome News Media, LLC, 349 Ga. App. 123, 134 n. 52 (825 SE2d
507) (2019) (Courts do not have the authority to rewrite a statute.). Accordingly, the
trial court erred in holding that the disposable earnings limitation applies to the
disputed funds in this case.
2. Based on our holding in Division 1, we need not reach Truist’s remaining
enumeration of error.
Judgment reversed. Miller, P. J., and Mercier, J., concur.
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