Tricon Constr. v. Perry

1

TRICON CONSTRUCTION, INC D/B/A TRICON 3 CONSTRUCTION, INC. v. MICHELLE PERRY ET AL.

No. M2022-00664-COA-R3-CV

Court of Appeals of Tennessee, Nashville

July 21, 2023

Session March 29, 2023

Appeal from the Circuit Court for Davidson County No. 17C2097Thomas W. Brothers, Judge

Husband and wife appellants, acting pro se, appeal the trial court's decision to pierce the corporate veil of husband's construction company to hold husband individually responsible for the corporation's breach of contract, as well as the judgment against both husband and wife for contemptuous conduct. We do not reach the merits of the case due to the appellants' failure to comply with the briefing requirements set out in Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee and dismiss the appeal.

Tenn R. App. P. 3 Appeal as of Right; Appeal Dismissed and Remanded

Jonathan Griese, and Heather Griese, Panama City, Florida Pro se.

John L. Farringer, IV and Andrea J. Sinclair, Nashville, Tennessee, for the appellees, Michelle Perry and Emerald Resource, LLC.

J Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.

MEMORANDUM OPINION ^[1]

J. STEVEN STAFFORD, JUDGE

I. Factual and Procedural Background

On August 23, 2017, Tricon Construction, Inc. d/b/a Tricon 3 Construction, Inc. ("Tricon") filed this lawsuit in the Davidson County Circuit Court ("the trial court"), against Emerald Resource, LLC ("Emerald") and its majority-owner Michelle Perry (together with Emerald, "Appellees"). The complaint asserted that the two entities had entered into a partnership for the purposes of pursuing federal construction contracts, in furtherance of which Emerald had loaned Tricon a total of $450,000.00 in 2015 and 2016, with repayment of the entire amount due in January 2021. Tricon alleged that its business relationship with a third party had ended as a result of Ms. Perry disclosing Tricon's confidential financial information in violation of the mutual non-disclosure agreement between the parties. Tricon also alleged that Ms. Perry had assisted a Tricon employee with securing new employment. In its complaint, filed through counsel, Tricon alleged breach of contract, breach of fiduciary duty, intentional interference with a business relationship, and procurement of breach of contract. Tricon sought to pierce Emerald's corporate veil and recover against Ms. Perry in her individual capacity.

Appellees filed an answer and countercomplaint on October 18, 2017. Therein, Appellees denied each of Tricon's charges, raised various affirmative defenses, and asserted new claims against Tricon and Jonathon and Heather Griese in their individual capacity (together, "the Grieses" or "Appellants"). Mr. Griese was co-founder, majority shareholder, and president of Tricon; Mrs. Griese was a minority shareholder without voting rights. Appellees alleged that Tricon breached both its contract with and fiduciary duties to Emerald by failing to repay the $450,000.00 loan and that Tricon's corporate veil should be pierced to hold the Grieses individually responsible for the debt.

Later, in May 2019, Appellees filed an emergency motion for prejudgment attachment after learning during discovery that the Grieses had sold their property in Tennessee and moved to Florida. The trial court entered an order prohibiting the Grieses from removing any funds located in Tennessee pending its final order. In October 2019, Appellees filed a motion for summary judgment. Following a hearing in November 2019, the trial court granted Appellees' motion in part and dismissed all of Tricon's claims.^[2]Thus, the only remaining issues were Appellees' counterclaim against Tricon and third-party claims against the Grieses.^[3]

Then, Appellees learned in early 2022 that the Grieses had removed over $300,000.00 in funds from their Tennessee accounts in violation of the trial court's 2019 order. Appellees filed a motion for contempt and sanctions, seeking a default judgment on their claim for piercing the corporate veil, or to have the Grieses pay the full $450,000.00 loan amount into the trial court pending a final verdict, as well as attorney's fees. The trial court's February 1, 2022 order finding the Grieses in civil contempt noted that Mrs. Griese had submitted an affidavit that she had returned $22,000.00 to the accounts, which the trial court credited against the total amount withdrawn.^[4] The Grieses were ordered to deposit the remaining $283,678.95 into their Tennessee account within ten days of the order or else face incarceration, and to pay $18,115.27 in Appellees' attorney's fees. The trial court ultimately denied the Grieses' motion to reconsider, alter, or amend the contempt order but did modify the order to remove the order of incarceration. Appellees also received an award of $15,000.00 in attorney's fees related to the motion to reconsider, alter, or amend, for a total attorney's fee award of $33,115.27.

Trial was held over several days in April 2022. The trial court issued its final judgment on May 16, 2022. On Appellees' breach of contract claim, judgment was entered against Tricon for the $450,000.00 loan amount and $30,744.86 in interest, for a total award against Tricon of $480,744.86. The trial court found that justice required piercing Tricon's corporate veil as to Mr. Griese, such that the trial court entered judgment against Mr. Griese individually for the debts of Tricon in the amount of $480,744.86. The trial court declined to hold Mrs. Griese personally liable for Tricon's debt. No further damages were awarded in relation to the contemptuous conduct of the Grieses.

A notice of appeal was filed May 19, 2022. The notice listed as appellants only Jonathan Griese and Heather Griese. The Grieses' trial attorneys filed a notice with this Court that they would not be representing Appellants in this appeal.

II. Analysis

Appellants appeal each aspect of the trial court's ruling, as explained in their brief:

1) The judgment in favor of [Emerald] against Tricon for $450,000.00[;]

2) The judgment in favor of [Emerald] against [Mr.] Griese (personally) for piercing the corporate veil for $450,000.00 plus pre-judgment interest. (Totaling $480,744.86)[;]

3) The contempt judgment ([for] which [Appellants] were assessed Emerald's attorney's fees of $33,115.27)[; and] 4) The original case brought by Jonathan and Heather Griese being prematurely dismissed without a hearing/trial.

Appellees raised an additional issue in their response brief and via a motion to dismiss: that the appeal should be dismissed in its entirety due to Appellants' failure to comply with appellate briefing requirements. We reserved judgment on the motion to dismiss pending oral argument. After further review, we agree that Appellants' failure to comply with the requirements of the Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals of Tennessee concerning appellate briefs precludes effective review, and we decline to reach the substantive issues.

The Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals set forth rules regarding appellate practice, specifically, the form and content of a party's brief. Rule 27 of the Tennessee Rules of Appellate Procedure provides that the brief of an appellant shall contain the following:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the case, the course of proceedings, and its disposition in the court below;

(6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, setting forth:

(A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);

(8) A short conclusion, stating the precise relief sought.

Tenn. R. App. P. 27. Rule 6 of the Tennessee Rules of the Court of Appeals describes further requirements for the content of the argument "in regard to each issue on appeal." Rule 6 requires:

(1) A statement by the appellant of the alleged erroneous action of the trial court which raises the issue . . . with citation to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant's challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.

(4) A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.

Tenn. R. Ct. App. 6(a). Rule 6 further provides that:

No complaint of or

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