Harris v. Pinewood Development Corp.

TYSON, Judge

dissenting.

The majority’s opinion vacates the trial court’s preliminary injunction barring defendant’s transfer of assets subject to satisfying plaintiffs’ judgment and holds the court erred when it granted a preliminary injunction against defendants. I respectfully dissent.

I. Statutory Remedy

The majority’s opinion states, “the General Assembly has provided means by which the creditor may address problems with execution, but only after it has been returned wholly or partially unsatisfied, or if the terms of § 1-355 are met.” While I agree this statute is an available remedy, it is not exclusive and does not address the issue before us. Plaintiffs filed this action as a “motion in the cause” from which the judgment resulted and sought an equitable remedy of injunction. The trial court possesses inherent power to grant a preliminary injunction to prohibit the fraudulent transfer of assets that are subject to execution for satisfaction of that judgment.

As noted in the majority’s opinion, N.C. Gen. Stat. § 1-355 (2005) provides:

Instead of the order requiring the attendance of the judgment debtor, the court or judge may, upon proof by affidavit or otherwise to his satisfaction that there is danger of the debtor leaving the State or concealing himself, and that there is reason to believe that he has'property which he unjustly refuses to apply to the judgment, issue a warrant requiring the sheriff of any county where such debtor is to arrest him and bring him before the court or judge. Upon being brought before the court or judge, the *709debtor may be examined on oath, and, if it appears that there is danger of his leaving the State, and that he has property which he has unjustly refused to apply to the judgment, he shall be ordered to enter into an undertaking, with one or more sureties, that he will, from time to time, attend before the court or judge as directed, and that he will not, during the pendency of the proceedings, dispose of any property not exempt from execution. In default of entering into such undertaking, he may be committed to prison by warrant of the court or judge, as for contempt.

Nothing in the plain language nor in any precedent cited by defendant or the majority’s opinion tends to show N.C. Gen. Stat. § 1-355 is the sole or exclusive method for a court to administer justice to a judgment debtor who threatens to conceal or transfer assets subject to execution post judgment. Nor does the statute evidence any legislative intent to limit the court’s inherent power to provide relief to a judgment creditor in the original action upon a showing that the judgment debtor is attempting to fraudulently conceal or transfer assets subject to execution. See N.C. Gen. Stat. § 1A-1, Rule 64 (“At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of this State.”).

II. Preliminary Injunction

A preliminary injunction is an equitable remedy, and the trial court, in its discretion, may grant an injunction to protect its judgments and prevent irreparable harm. The United States Supreme Court has stated:

A court of equity in the exercise of its discretion, frequently resorts to the expedient of imposing terms and conditions upon the party at whose instance it proposes to act. The power to impose such conditions is founded upon, and arises from, the discretion which the court has in such cases, to grant, or not to grant, the injunction applied for. It is a power inherent in the court, as a court of equity, and has been exercised from time immemorial.

Inland Steel Co. v. United States, 306 U.S. 153, 156, 83 L. Ed. 557, 560 (1939) (citations and internal quotations omitted) (emphasis in original).

*710Our Supreme Court has stated:

a court of equity, or a court in the exercise of its equity powers, may use the writ of injunction as a remedy subsidiary to and in aid of another action or special proceeding. However, in such cases, in order to justify continuing the writ until the final hearing, ordinarily it must be made to appear (1) that there is probable cause the plaintiff will be able to establish the asserted right, and (2) that there is a reasonable apprehension of irreparable loss unless the temporary order of injunction remains in force, or that in the opinion of the court such injunctive relief appears to be reasonably necessary to protect the plaintiffs rights until the controversy can be determined.

Edmonds v. Hall, 236 N.C. 153, 156, 72 S.E.2d 221, 223 (1952).

This Court has held, to support a grant of preliminary injunction, “[t]he danger sought to be enjoined must be real and immediate. There must be at least a reasonable probability that the injury will be done if no injunction is granted.” Asheville Mall, Inc. v. Sam Wyche Sports World, 97 N.C. App. 133, 135, 387 S.E.2d 70, 71 (1990) (internal quotations and citations omitted).

Plaintiffs filed this motion in the original cause in which the final judgment - was entered to protect themselves against defendant’s efforts to fraudulently transfer or remove assets to render execution on the final judgment ineffectual or unsatisfied citing N.C. Gen. Stat. § 1A-1, Rule 65. The trial court agreed and concluded:

That during the pendency of Plaintiffs post-judgment actions for collection against Ray Ritchie for the amount of their judgment, Ritchie has threatened to remove and dispose of and may already have removed (e.g. by moving the state of incorporation of Pinewood Homes, Inc. to Nevada) and disposed of assets in an attempt to defraud the Plaintiffs (e.g. by making material misrepresentations in Ritchie’s Motion to Claim Exemptions).
That good cause and the interests of substantial justice and equity compel this Court to freeze any and all transfers and exchanges of assets in which Ray Ritchie has any ownership. That Pinewood Homes, Inc. appears to be in active concert with Ray Ritchie, in his wrongful attempts to avoid accountability for the Judgment against him.

*711Plaintiffs argue “[t]he threat of irreparable harm ... is that while they will be entitled to collect damages, they will not be able to collect against their judgment because Ritchie will have stripped himself of the very assets against which the [plaintiffs] are entitled to take.” Plaintiffs presented sufficient evidence from which a court could find a “real and immediate” danger that defendant would conceal or transfer assets subject to execution beyond the reach of plaintiffs ability or feasibility to satisfy the judgment against him. Id. Defendant’s argument that the preliminary injunction, a temporary remedy, “essentially shut down all business activity” is without merit. Defendant holds in his hands control of the resolution of the preliminary injunction — pay the judgment. The trial court’s order should be affirmed.

III. Conclusion

The trial court, sitting as a court of equity, possesses the inherent authority to protect its judgment and to issue an injunction to prevent a judgment debtor from concealing, removing, or transferring assets that are subject to execution to satisfy that judgment. Nothing in the statute or any precedent abrogates this inherent authority. The trial court did not err when it granted plaintiff’s motion for a preliminary injunction. I vote to affirm the trial court’s judgment. To hold otherwise would allow the judgment debtor to transfer assets subject to execution beyond the jurisdiction of the court. I respectfully dissent.