United States District Court, M.D. Georgia, Columbus Division
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for GulfSouth Private Bank, Plaintiff,
WILLIAM L. AMOS, JENIFER C. AMOS, and WLA INVESTMENTS INC. Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
pending before the Court are two motions filed by Plaintiff
Federal Deposit Insurance Corporation (“FDIC-R”),
as Receiver for GulfSouth Private Bank. First, FDIC-R filed a
motion for entry of an order requiring the production and
levy of shares Defendant William L. Amos owns in certain
corporations (ECF No. 27). At the hearing on the pending
motions, the parties represented that they would confer in a
good faith effort to propose a consent order to resolve this
motion. The parties shall submit a proposed consent order by
April 6, 2017.
also filed a Motion for Contempt (ECF No. 39). It argues that
Defendants William L. Amos and Jenifer Amos, along with
William L. Amos & Co. (“Amos & Co.”) and
Paladin Beach Investments, LLC (“Paladin”),
violated the Consent Order Granting Preliminary Injunction
(ECF No. 17). Defendants deny violating the preliminary
injunction order. For the reasons set forth below, the Court
concludes that FDIC-R has not established by clear and
convincing evidence that Defendants violated the court order.
Accordingly, FDIC-R's motion for contempt is denied.
establish civil contempt, FDIC-R must show, by clear and
convincing evidence, that Defendants violated a court order.
“The clear and convincing evidence must establish that:
(1) the allegedly violated order was valid and lawful; (2)
the order was clear and unambiguous; and (3) the
alleged violator had the ability to comply with the
order.” Ga. Power Co. v. N.L.R.B., 484 F.3d
1288, 1291 (11th Cir. 2007) (citing McGregor v.
Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000)). Here,
Defendants argue that they did not violate any clear and
unambiguous provision in the preliminary injunction order.
Expenditures Made By Amos & Co.
preliminary injunction order, which was prepared and agreed
to by the parties, states that Amos & Co. may not spend
its income “other than to pay ordinary business
expenses of Amos & Co. in accordance with the budget
attached [to the preliminary injunction order] as Exhibit
C.” Consent Order Granting Prelim. Inj. ¶ 4(b),
ECF No. 17. Exhibit C, which is described as the relevant
“budget, ” lists three categories of expenses-car
payments, life insurance payments, and taxes. But it includes
no dollar amounts for any category and instead has blank
lines next to each “budget” category.
Notwithstanding the ambiguity created by the absence of any
budget amounts in the so-called “budget, ” FDIC-R
argues that Amos & Co. violated the preliminary
injunction order by making the following expenditures: 1)
more than $100, 000 in premiums on a whole life insurance
policy on Mr. Amos's life; 2) legal expenses of more than
$75, 000; 3) a $15, 000 loan to Paladin; 4) credit card
payments totaling approximately $2, 200; and 5) payments to
Verizon totaling nearly $900. The Court will address each
expenditure in turn.
Life Insurance Premiums
acknowledges that the parties contemplated that certain life
insurance premium payments would be permitted. But it
maintains that the amounts paid by Amos & Co. were
excessive and thus not an ordinary business expense. Amos
& Co. made premium payments of roughly $16, 000 per month
on whole life insurance policies on Mr. Amos's life. The
ultimate beneficiary of these policies is Mrs. Amos, the
current owner of Amos & Co. According to Defendants, Mr.
Amos is the president of Amos & Co., and Amos & Co.
began paying the premiums on the policies several years
before entry of the preliminary injunction order.
plain language of the preliminary injunction order clearly
omits any dollar limitation on the amount of life insurance
premiums that may be paid by Amos & Co. The only
limitation is that such payments must be an ordinary business
expense of Amos & Co. While the life insurance policies
and corresponding premiums certainly fall within the upper
range for such benefits, insufficient evidence has been
presented to convince the Court that the premiums clearly are
not an ordinary business expense such that they constitute a
violation of the Court's order. The parties contemplated
that Amos & Co. would be permitted to continue paying the
life insurance premiums that it had been paying for several
years, although FDIC-R apparently did not know how much the
premiums were or any other details about the life insurance.
If FDIC-R wanted to limit the monthly premium payments, it
should have filled in the empty blank on the budget. Even if
parol evidence supported FDIC-R's position that the
premium payments were excessive, FDIC-R has not met its
burden of proving by clear and convincing evidence that the
preliminary injunction order clearly and unambiguously
prohibited the premium payments. Therefore, those payments
cannot be the basis for a contempt finding.
argues that other expenditures made by Amos & Co. that
fell outside the categories listed in Exhibit C-life
insurance premiums, car payments, and taxes-were prohibited
by the preliminary injunction order. These expenditures
include: 1) legal expenses of more than $75, 000; 2) a $15,
000 loan to Paladin Beach Investments, LLC; 3) credit card
payments totaling approximately $2, 200; and 4) payments to
Verizon totaling nearly $900.
noted previously, for there to be a finding of contempt, the
order that was allegedly violated must be unambiguous and the
evidence of the violation must be clear and convincing. The
parties' failure to include a completed budget as an
exhibit to the consent preliminary injunction order created
an ambiguity regarding Amos & Co.'s permitted
expenditures. One interpretation of that provision is that
the parties agreed that expenditures could only be made
within the three budget categories listed in Exhibit C. But
another equally plausible interpretation could be that the
parties never reached a meeting of the minds on Exhibit C,
and thus it should be ignored. If Exhibit C is ignored, Amos
& Co. was permitted to make any expenditure that was
within the ordinary course of its business.
that any parol evidence makes the agreement any clearer, the
Court finds for purposes of the pending motion for contempt
that Amos & Co. can be found in contempt only if FDIC-R
established by clear and convincing evidence that Amos &
Co.'s expenditures were not “ordinary business
expenses.” FDIC-R failed to carry this high burden.
Defendants assert that Amos & Co. routinely paid these
types of expenses in the ordinary course of its business
prior to entry of the preliminary injunction order. FDIC-R
argues that these types of expenses are not logical or
necessary for a business like Amos & Co., but the parties
did not define “ordinary course of business” to
have such a narrow meaning. And, FDIC-R did not present any
evidence to establish that Amos & Co. did not routinely
pay such expenses in the ordinary course of its business. It