PNC Multifamily Capital Institutional Fund XXVI Limited Partnership v. Bluff City Community Development Corporation ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 17, 2013 Session
PNC MULTIFAMILY CAPITAL INSTITUTIONAL FUND XXVI LIMITED
PARTNERSHIP, ET AL. v. BLUFF CITY COMMUNITY DEVELOPMENT
CORPORATION
Direct Appeal from the Chancery Court for Shelby County
No. CH-08-1494-02 Arnold Goldin, Chancellor
No. W2012-01611-COA-R3-CV - Filed July 18, 2013
The trial court appointed a receiver for the appellant nonprofit corporation and held its
president in contempt for repeated failures to comply with the court’s previous orders. The
nonprofit corporation appeals. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
A LAN E.H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R.
F ARMER,J., and H OLLY M. K IRBY, J., joined.
Venita Marie Martin, Memphis, Tennessee, for the appellant, Bluff City Community
Development Corporation
Robert L. Crawford, Joseph B. Reafsnyder, Memphis, Tennessee, for the appellees, PNC
Multifamily Capital Institutional Fund XXVI Limited Partnership, et al
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This is the fourth appeal of this case, which involves allegations of misconduct,
misappropriation and various breaches of contract and trust related to three tax credit
partnerships that own tax credit apartment complexes in Memphis, Tennessee. The issues
before us on appeal are narrow, so we will not belabor this opinion with a complete history
of the proceedings. Our previous opinions can be found at PNC Multifamily Capital
Institutional Fund XXVI Ltd. Partnership v. Mabry, No. W2011-01679-COA-R3-CV,
2012 WL 5897355 (Tenn. Ct. App. Nov. 26, 2012); PNC Multifamily Capital Institutional
Fund XXVI Limited Partnership v. Bluff City Community Development Corp., 387 S.W.3d
525 (Tenn. Ct. App. May 4, 2012); and Eagles Landing Development, L.L.C. v. Eagles
Landing Apartments, L.P., 386 S.W.3d 246 (Tenn. Ct. App. Feb.2, 2012).
The plaintiffs in this matter are: PNC Multifamily Capital Institutional Fund XXVI
Limited Partnership; PNC Multifamily Capital Institutional Fund XXX Limited Partnership;
PNC Multifamily Capital Institutional Fund XXI Limited Partnership; Columbia Housing
SLP Corporation; Eagles Landing Apartments, L.P.; April Woods Apartments, L.P.; and
Harmony Woods Apartments, L.P. (collectively, “Plaintiffs”). Although there were
numerous defendants before the trial court, the only appellant in this matter is defendant
Bluff City Community Development Corporation (hereinafter, “Bluff City”). The founder,
president, and executive director of Bluff City is an individual named Carl Mabry, who was
also a defendant, but Mr. Mabry did not file a notice of appeal of the orders below.
On February 8, 2011, the parties then-remaining before the trial court, including Mr.
Mabry, participated in a court-ordered judicial settlement conference, which was presided
over by Chancellor Kenny Armstrong. At the conference, an agreement was reached and a
document reflecting the settlement terms was prepared and signed by all of the participating
parties, including Mr. Mabry. Thereafter, Plaintiffs’ attorney prepared and circulated the
formal settlement documentation, but Mr. Mabry refused to sign the formal settlement
documents. On April 19, 2011, Plaintiffs filed a motion to enforce the settlement agreement,
and an amended motion to enforce the settlement agreement was filed on April 20, 2011.
Plaintiffs alleged that Mr. Mabry, Bluff City, and its affiliates had refused to approve the
formal mutual settlement agreement documentation, despite the agreement reached at the
judicial settlement conference. The Plaintiffs asked the court to enforce the settlement
agreement and to order the defendants to sign the related documentation.
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Following a hearing, the trial court entered an order on July 8, 2011, granting the
motion to enforce the settlement agreement. The court found that the agreement executed
at the settlement conference was binding and enforceable. The trial court’s order
incorporated several documents and also expressly set forth various provisions of the
settlement agreement, which, relevant to this appeal, provided:
Defendants Bluff City Community Development Corporation, Project Love
Incorporated, Eagles Landing Apartments II, L.P., April Woods Apartments
II, L.P., Carl Mabry, April Mabry, Jesse Briggs, Johnnie Briggs and their
Affiliates release any developer fee or any other fee which are or were due to
or claimed by these Defendants or their Affiliates, related to April Woods
Apartments, L.P., Harmony Woods Apartments, L.P., or Eagles Landing
Apartments, L.P., and release of any claim that same have not been assigned
or transferred to Columbia Housing SLP Corporation. Bluff City Community
Development Corporation, and Project Love Incorporated, and their Affiliates,
have no remaining rights or interest, in the April Woods Partnership, the
Eagles Landing Partnership, or the Harmony Woods Partnership, and will
receive no further payments, repayments, offsets, or consideration of any kind
or for any purpose (past, present or future), from or related to the April Woods
Project, the Harmony Woods Project or the Eagles Landing Project. All such
rights, title and interest, including rights to any such partnership interest or any
fee, payments, repayments, offsets, or consideration, are vested in Columbia
Housing SLP Corporation.
....
All development or other fees under or pursuant to the April Woods II
Partnership Agreement (Exhibit 3), shall not be paid to Bluff City Community
Development Corporation or any Affiliate, including April Woods
Development II, LLC, but shall instead be paid to Columbia Housing SLP
Corporation as trustee. Provided, that solely in the event and solely to the
extent that Bluff City Community Development Corporation is required to
make a capital contribution to the April Woods II Partnership to pay any
unpaid portion of the development fee pursuant to the following provision in
section 6.12(a) of the April Woods II Partnership Agreement: ["If the
Development Fee has not been fully paid by the tenth (10th) anniversary of the
Completion Date, the General Partner shall make a Capital Contribution to the
Partnership in an amount sufficient to enable the Partnership to pay any unpaid
portion of the Development Fee"], then such development fee in the amount
of such actual capital contribution made by Bluff City Community
Development Corporation shall not be paid to Columbia Housing SLP
Corporation as trustee.
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(emphasis added). The trial court stated in its order that it was “retain[ing] continuing
jurisdiction to enforce the terms of this Order, including the right to enforce or punish by
contempt or otherwise any violation of this Order or interference with rights or conveyances
provided by this Order.” The order was certified as a final judgment pursuant to Tennessee
Rule of Civil Procedure 54.02. Bluff City did not appeal the entry of this order.1
Six months later, the Plaintiffs filed a “Motion to Enforce Payments,” in which they
claimed that defendants April Woods Apartments II, L.P. (“April Woods II”)2 , Bluff City,
and Mr. Mabry were not in compliance with the trial court’s July 8, 2011 order enforcing the
settlement agreement. Specifically, they alleged that defendant April Woods II was paying
“fees” of $3,000 per month to an affiliate of Bluff City (called Results Management, LLC),
rather than to Columbia Housing SLP as trustee, as required by the July 8, 2011 order.
According to Plaintiffs, the defendants had taken the position that these were “site
management” fees, and not the “type” of fees addressed by the order. Plaintiffs argued that
the order clearly addressed “all” fees. Plaintiffs asked the court to enforce its prior order by
requiring that an amount equal to the fees improperly paid to Bluff City’s affiliate be
immediately paid to the trustee, and that April Woods II be ordered to make such future
payments to the trustee as well. Plaintiffs pointed out that the trial court had specifically
retained jurisdiction to enforce the terms of the July 8, 2011 order, by contempt or otherwise.
Following a hearing, the trial court entered an order on January 27, 2012, granting the
Plaintiffs’ “Motion to Enforce Payments.” The court found that Mr. Mabry, Bluff City, and
April Woods II were not in compliance with its previous order, as “payments of $3,000 per
month have been made by April Woods II to an Affiliate of Bluff City, which payments
should have been made to Columbia Housing SLP Corporation as trustee.” The court noted
that paragraph 8 of its previous order provided:
All development or other fees under or pursuant to the April Woods II
Partnership Agreement (Exhibit 3), shall not be paid to Bluff City Community
Development Corporation or any Affiliate, . . . but shall instead be paid to
Columbia Housing SLP Corporation as trustee. . . .
(Emphasis added). The court explained that its order specifically required April Woods II
1
Defendant Carl Mabry filed a notice of appeal in his individual capacity. On appeal, this Court
held that the trial court did not err in enforcing the signed settlement agreement against Mr. Mabry as a valid
contract. PNC, 2012 WL 5897355, at *7.
2
The general partner of defendant April Woods II was defendant Bluff City, whose
president/executive director was defendant Carl Mabry.
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“to (i) not make payments of fees to Bluff City or any Affiliate and (ii) to instead make such
payments to Columbia Housing as trustee.” The court found that “[s]ince February 2011,
April Woods II has paid fees of $3,000 per month to Results Management LLC, an Affiliate
[as defined in the previous order] of Bluff City.” Thus, the court ordered that an amount
equal to the fees paid to the affiliate in violation of the order, $33,000, be immediately paid
by April Woods II and Bluff City, jointly and severally, to Columbia Housing as trustee. The
court further ordered April Woods II to make such future payments to Columbia Housing as
trustee.
On March 7, 2012, the trial court entered an order addressing some discovery issues.
Among other things, the court ordered Bluff City to provide its responses to Plaintiffs’
requests for production of documents on or before March 12, 2012. The court ordered Bluff
City to separately respond to each and every request propounded upon it, to produce all of
the requested documents in its possession, and for those documents not in its possession, to
specifically state the location of those documents or the person who had possession of the
documents. One day after the deadline, on March 13, 2012, defendant Carl Mabry filed what
purported to be defendant Bluff City’s “Responses,” but which, in reality, only contained a
general objection to the requests. Plaintiffs filed a motion to compel Bluff City to respond,
asking the court to require Bluff City to comply with its previous discovery order and to
provide the requested documents.
Thereafter, Plaintiffs filed a petition for contempt and for sanctions against Bluff City,
Mr. Mabry, and April Woods, II, alleging that the defendants had continued to disobey the
trial court’s July 8, 2011 order, and disobeyed its January 27, 2012 order, by making
additional $3,000 payments to an affiliate of Bluff City rather than to the trustee. Plaintiffs
asked the trial court to enforce its orders through its contempt powers by holding Bluff City,
April Woods II, and Mr. Mabry (as agent of Bluff City and April Woods II), in contempt.
On March 27, 2012, the trial court entered an order granting Plaintiffs’ motion to
compel Bluff City to respond to the aforementioned discovery requests. The court found that
Bluff City had failed to comply with its March 7 order requiring responses by March 12, and
therefore, the court ordered Bluff City to provide the requested responses on or before March
29, 2012, without any objections. The order stated that if Bluff City failed to comply by
timely filing sufficient responses, the court would consider appointing a receiver for Bluff
City. Bluff City filed its responses on March 29, 2012, but it objected to nearly all of the 39
requests for production, and stated that it “does not waive its objections to this needless,
ongoing discovery.”
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On April 13, 2012, Bluff City filed a motion “to set aside, alter, or amend” the trial
court’s order granting the “Motion to Enforce Payments,” entered on January 27, 2012, in
which the trial court had ruled that the $3,000 “fees” were subject to paragraph 8 of the
settlement agreement and that $33,000 was owed to the trustee. The motion alleged that
relief was appropriate “pursuant to Rule 60” because, Bluff City argued, the trial court had
erred in holding that the $3,000 fees were the “type” of fees subject to the settlement
agreement. Bluff City also filed a response to the petition for contempt in which it argued,
again, that neither Bluff City nor its affiliate had received the kind of fees that the settlement
agreement addressed.
Effective April 24, 2012, the trial court appointed a receiver for Bluff City. The trial
court’s order stated that Bluff City, and its officer Mr. Mabry, had “repeatedly failed and
refused to comply with, and demonstrated a disregard for, the Orders of this Court.” In order
to demonstrate such disregard, the court specifically listed eight of its previous orders which
had included a previous finding of contempt, the granting of previous motions to compel, the
“Motion to Enforce Payments,” and other related matters involving Bluff City and Mr.
Mabry. The court noted that its March 27, 2012 order (requiring responses by March 29
without objections) specifically warned Bluff City that if it failed to comply with the order,
the court would consider appointing a receiver for the corporation. Nevertheless, the court
stated, “Bluff City once again failed to comply with orders of this Court when it submitted
deficient responses[.]” The court held that “[b]ecause of Bluff City's continuing pattern of
misconduct and the most recent failure to comply with an Order of this Court, the Court has
determined that appointment of a receiver is necessary and appropriate for the ends of
justice.” The court explained that “the appointment of a receiver is the necessary and
appropriate remedy to ensure Bluff City’s compliance with this Court’s prior and subsequent
Orders.”
The trial court denied Bluff City’s motion to “set aside, alter, or amend” the order
granting the “Motion to Enforce Payments.” The trial court also found Bluff City and April
Woods II in willful contempt of its January 27, 2012 order directing the $3,000 payments to
be made to the trustee. The court explained that its July 8, 2011 order enforcing the
settlement agreement required “all development or other fees” to be paid to the trustee, not
to Bluff City or its affiliates. The court noted that April Woods II subsequently paid fees of
$3,000 per month to an affiliate of Bluff City, and it claimed that this was permissible
because these fees were not covered by the July 8, 2011 order. The trial court noted that “on
January 27, 2012, the Court entered an Order resolving that issue, and confirming that the
payments of $3,000 per month were, in fact covered by the July 8, 2011 Order.” In that
order, the court specifically directed that future payments of the $3,000 fee were to go to the
trustee. Despite this explicit instruction, “[a]fter entry of the January 27, 2012 Order, April
Woods II and its general partner, Bluff City, continued to refuse to make the required
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payments to Columbia Housing SLP Corporation as trustee.” The court found that April
Woods II made the $3,000 fee payments to another affiliate of Bluff City, for the same
services, in February, March, and April of 2012, totaling $9,000. The court found that the
affiliate that received the payments was “a property management agent and conduit for
Mabry, which immediately paid the funds to Mabry.” The court found that “[t]hese
Defendants willfully created a subterfuge in an effort to not pay the $3,000 per month as
required by the Court's order and such conduct constitutes a willful violation of the Court's
order.” It further noted that “[t]hese Defendants are not getting the message that court orders
are to obeyed, and they are not to create subterfuges, and not to run around and attempt to get
results that they want in spite of the Court's orders[.]” The court determined that Mr. Mabry
should be incarcerated, as he was “the principal in Bluff City, which is the general partner
of April Woods II, and the person who executed and received a benefit of the willful
violation of the Court order.” The court ordered Mr. Mabry incarcerated until he posted a
$9,000 cash bond, “posted for the purpose of paying the money over as the previous Court's
order required.”
Defendant Bluff City timely filed a notice of appeal.
II. I SSUES P RESENTED
Bluff City’s brief on appeal lists the following issues for review:
1. Whether the trial court erred in appointing a receiver over Bluff City without holding
an evidentiary hearing and as a sanction in a discovery dispute;
2. Whether the trial court erred in finding Bluff City in contempt of court and ordering
its president incarcerated for allegedly violating a court order where Bluff [City] did
not make payments and where payments were made pursuant to an independent
contractor agreement; and
3. Whether the trial court abused its discretion in failing to set aside its order granting
Plaintiffs’ “Motion to Enforce Payments” pursuant to a tentative settlement
agreement.
For the following reasons, we affirm the decision of the chancery court and remand for
further proceedings as may be necessary.3
3
We note that Bluff City makes several other passing arguments throughout its brief in which it
alleges that the trial court erred in various ways during the proceedings. However, we have focused our
review on the three issues presented for review. “An item not listed as an issue presented for review is
considered waived as this Court is under no obligation to search for, or derive, issues that are not specifically
(continued...)
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III. D ISCUSSION
A. Appointment of a Receiver
Bluff City’s first issue presented on appeal is whether the trial court erred in
appointing a receiver without holding an evidentiary hearing, and in the context of what
Bluff City characterizes as a simple discovery dispute. However, in Bluff City’s brief on
appeal, it does not provide a single citation to the record with regard to this issue, and it does
not cite any legal authority in support of its cursory argument. “‘Courts have routinely held
that the failure to make appropriate references to the record and to cite relevant authority in
the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the
issue.’” Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011) (quoting Bean v.
Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000)); see also Tellico Village Property
Owners Ass'n, Inc. v. Health Solutions, LLC, No. E2012-00101-COA-R3-CV, 2013 WL
362815, at *3 (Tenn. Ct. App. Jan. 30, 2013) (“‘Where a party makes no legal argument and
cites no authority in support of a position, such issue is deemed to be waived and will not be
considered on appeal.’”) (quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App.
2001)). Moreover, we have no transcript of the hearing at which the trial court considered
Plaintiffs’ motion to compel and decided to appoint a receiver, and there is nothing in the
record to suggest that Bluff City ever requested an evidentiary hearing before the trial court.
Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (“Issues not raised in the trial court
cannot be raised for the first time on appeal.”). As a result of these deficiencies, we find that
Bluff City has waived review of this issue.
3
(...continued)
stated in accordance with Rule 27(a)(4).” Coleman v. Lauderdale County, No. W2011-00602-COA-R3-CV,
2012 WL 475606, at *3 n.4 (Tenn. Ct. App. Feb. 15, 2012) (citing Childress v. Union Realty Co., 97 S.W.3d
573, 578 (Tenn. Ct. App. 2002)).
Similarly, we will not review the issues raised for the first time by Bluff City in its reply brief.
Pickard v. Tenn. Dep’t of Environment & Conservation, No. M2011-02600-COA-R3-CV, 2012 WL
3834777, at *19 (Tenn. Ct. App. Sept. 4, 2012) (“arguments raised for the first time in reply briefs are
likewise considered waived by this Court”).
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B. Contempt
With regard to the trial court’s contempt ruling, Bluff City cites only one case in
support of its argument, which it cites as follows:
. . . The evidence preponderates against the trial court’s finding, and the trial
court abused its discretion in holding Bluff City in contempt. See Konvalinka
v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.
2008).
The substantive basis for Bluff City’s argument as to why it should not have been held in
contempt is that the $3,000 fees were not the type of fees that were subject to the parties’
settlement agreement. This argument misses the point. After the trial court entered its July
8, 2011 order enforcing the settlement agreement and providing that “all development or
other fees” would be paid to the trustee rather than to Bluff City or its affiliates, the Plaintiffs
filed their “Motion to Enforce Payments” seeking a determination as to whether the $3,000
fees were subject to the aforementioned provision of the settlement agreement. The trial
court entered an order on January 27, 2012, specifically resolving that issue. Following a
hearing, of which we have no transcript, the trial court found that the $3,000 fee payments
“should have been made to Columbia Housing SLP Corporation as trustee.” The January 27,
2012 order noted that the plain language of the July 8, 2011 order addressed “All
development or other fees” (emphasis by the trial court), and as a result, April Woods II was
required “to (i) not make payments of fees to Bluff City or any Affiliate and (ii) to instead
make such payments to Columbia Housing as trustee.” The court explicitly ordered April
Woods II to make such future payments to Columbia Housing as trustee. In the three months
immediately following the January 27, 2012 order, additional $3,000 payments were made
to a different affiliate of Bluff City, in clear violation of the trial court’s direct instructions.
Bluff City was not at liberty to simply ignore the trial court’s order based upon its opinion
that the trial court was incorrect.
‘The disobedience of a valid, though erroneous and reversible, order is a
contempt of court. As long as the court has jurisdiction of the person and
subject matter, its order is valid, though it be erroneous, and disobedience of
the order is a contempt of court. A court's order can be disregarded only when
the court goes so clearly and so far outside its jurisdiction as to act, not as a
court, but as a usurper, so as to render its order void. The principle underlying
the court's contempt powers, i.e. the court must be able to maintain the
integrity of its orders, is so strong that even erroneous orders must be obeyed
at the risk of a contempt citation.’
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State v. Ramos, No. M2007-01766-CCA-R3-CD, 2009 WL 890877, at *4 (Tenn. Crim. App.
Apr. 2, 2009) perm. app. denied (Tenn. Aug. 31, 2009) (quoting State v. Jones, 1985 WL
4229 *7-8 (Tenn. Crim. App. Nov. 27, 1985) (Riley, Sp. J., concurring) aff'd by 726 S.W.2d
515 (Tenn. 1987)). “In short, a court order, even if erroneous or subject to reversal on
appeal, must be followed until it is reversed.” Id. (citing Konvalinka, 249 S.W.3d at 357).
“It is well-settled in Tennessee that if the Court has jurisdiction of the person and of the
subject matter, it is a valid order though it be erroneous, and disobedience of same by a party
affected is a contempt of court.” Flautt & Mann v. Council of City of Memphis, 285
S.W.3d 856, 874 (Tenn. Ct. App. 2008) (quotation omitted). Thus, it is no defense to Bluff
City that, in its view, the order it disobeyed was incorrectly decided.
C. The Motion to Set Aside, Alter or Amend
Finally, Bluff City argues that the trial court abused its discretion in denying Bluff
City’s April 13, 2012 motion to set aside, alter or amend the January 27, 2012 order granting
Plaintiffs’ “Motion to Enforce Payments.” The challenged order held that the $3,000 fee
payments were subject to the settlement agreement. Bluff City argues that the order should
have been set aside pursuant to Rule 60.02 because “[i]t is clear from the evidence that on-
site property management fees were not and should not have been included in the settlement
agreement.” To recap, the trial court’s order enforcing the settlement agreement provided,
in pertinent part:
All development or other fees under or pursuant to the April Woods II
Partnership Agreement (Exhibit 3), shall not be paid to Bluff City Community
Development Corporation or any Affiliate, including April Woods
Development II, LLC, but shall instead be paid to Columbia Housing SLP
Corporation as trustee. Provided, that solely in the event and solely to the
extent that Bluff City Community Development Corporation is required to
make a capital contribution to the April Woods II Partnership to pay any
unpaid portion of the development fee pursuant to the following provision in
section 6.12(a) of the April Woods II Partnership Agreement: ["If the
Development Fee has not been fully paid by the tenth (10th) anniversary of the
Completion Date, the General Partner shall make a Capital Contribution to the
Partnership in an amount sufficient to enable the Partnership to pay any unpaid
portion of the Development Fee"], then such development fee in the amount
of such actual capital contribution made by Bluff City Community
Development Corporation shall not be paid to Columbia Housing SLP
Corporation as trustee.
(Emphasis added). We agree with the trial court’s conclusion that the plain language of this
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provision requires “all development or other fees” to be paid to the trustee, with the
exception of a certain type of development fee not relevant here.
Bluff City claims that “the trial court erred in concluding that the management fees
were made pursuant to the April Woods II Partnership Agreement and not the independent
contractor agreement[.]” Although the relevant provision of the order enforcing the
settlement agreement does address “any development or other fees under or pursuant to the
April Woods II Partnership Agreement” (emphasis added), Bluff City admitted in its motion
to set aside, alter or amend, filed before the trial court, that the April Woods II Partnership
Agreement “defines three types of fees: 1) ‘Asset Management Fees,’ . . . 2) ‘Development
Fee[s],’ . . . and 3) ‘Management Fee[s],’ which are those fees payable to a third-party
property management agent pursuant to a property management contract.” In other words,
Bluff City admitted in its motion that the April Woods II Partnership Agreement expressly
provided for such “management fees.” The April Woods II Partnership Agreement does not
appear to be in the record before us on appeal, and Bluff City has not cited to any portion of
the record in this section of its brief to cause us to believe otherwise. Consequently, we find
that the trial court did not err in refusing to set aside its previous order finding that the $3,000
“management” fee payments were subject to the settlement agreement.
IV. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court and
remand for further proceedings as may be necessary. Costs of this appeal are taxed to the
appellant, Bluff City Community Development Corporation, for which execution may issue
if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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