Opielski, B. v. Teeling, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN OPIELSKI, INDIVIDUALLY AND IN THE SUPERIOR COURT OF
DERIVATIVELY ON BEHALF OF TRIMLINE PENNSYLVANIA
WINDOWS, INC.
v.
DENNIS J. TEELING AND ERIN TEELING
APPEAL OF: DENNIS J. TEELING No. 1185 EDA 2014
Appeal from the Judgment Entered April 9, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No: 2010-01132-32-5
…………………………………………………………………………………………………………………………
BRIAN OPIELSKI, INDIVIDUAL AND IN THE SUPERIOR COURT
DERIVATIVELY ON BEHALF OF OF
TRIMLINE WINDOWS, INC. PENNSYLVANIA
v.
DENNIS J. TEELING AND ERIN TEELING
No. 1186 EDA 2014
Appeal from the Judgment Entered April 9, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No: 2010-01132-32-5
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J.FILED JULY 08, 2015
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Brian Opielski and Dennis Teeling cross-appeal from the judgment
entered April 9, 2014.1 We affirm.
The relevant facts, as set forth by the trial court, are as follows.
Trimline Windows, Inc. (Trimline) is a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania,
and is a manufacturer of window products. Trimline is a closely
held corporation that, at all times, has operated under IRS
Subchapter S. The owners of Trimline, prior to Opielski
becoming involved, were Teeling and Keith Zimmerman, who is
now deceased. Opielski was the owner of Apex Management
Group, Inc. (Apex), a Pennsylvania Corporation that provided
managerial and strategic consulting to companies in the window
and door manufacturing industry. Around February 2006 and
continuing until February 2007, Trimline engaged the services of
Apex as a consultant and Opielski became familiar with
Trimline’s management and business. Around November 2006,
Teeling and Zimmerman approached Opielski and requested that
he join Trimline as a shareholder/officer. The parties came to an
agreement that Opielski would merge Apex into Trimline,
become a 20% owner of Trimline, and become an officer and
director. Opielski’s responsibility would be to run the daily
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1
These appeals have been consolidated. Both parties purport to appeal
from the order of the Bucks County Court of Common Pleas entered March
13, 2014, denying their post-trial motions. See Notices of Appeal, 4/10/14
and 4/16/14. This is simply incorrect. “Orders denying post-trial motions …
are not appealable. Rather, it is the subsequent judgment that is the
appealable order when a trial has occurred.” Harvey v. Rouse Chamberlin
Ltd., 901 A.2d 523, 525 n.1 (Pa. Super. 2006) (citations omitted). Here,
judgment was entered by praecipe on April 9, 2014; thus, the parties’
notices of appeal were mislabeled. Despite their errors, this Court will
address the appeals because judgment has been entered on the verdict. See
Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781
A.2d 1263, 1266 n.3 (Pa. Super. 2001). We have corrected the caption
accordingly.
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manufacturing operations of Trimline, manage the plant and
personnel, and maintain the equipment.
On February 5, 2007, Opielski, Teeling, and Zimmerman entered
into agreements for Opielski to join Trimline as a shareholder,
director, and officer. Opielski merged his business, Apex [ ] with
Trimline. The agreements signed were the Merger Agreement,
the Shareholders’ Agreement and the Compensation Agreement.
Opielski was receiving 20% ownership in Trimline while Teeling
and Zimmerman retained 40% each.[2] The Letter Agreement on
Compensation required that Opielski, Teeling, and Zimmerman
were to be paid a base salary of $63,000 per year. All of the
agreements were effective as of February 15, 2007. As of that
date, Teeling, Zimmerman, and Opielski were the three
members of Trimline’s Board of Directors.
At the time Opielski joined Trimline, Andrew Patroni, Jr., was the
accountant. Starting in 2008, at Opielski’s request, Trimline
engaged the accounting firm of Kreischer Miller as its
accountant.
Zimmerman passed away on June 7, 2008, and disputes
regarding the purchase price of Zimmerman’s shares and his
insurance benefits arose. Disputes regarding the accounting of
Trimline and the following of the Compensation Agreement also
began to arise. Teeling and Opielski then began to distrust one
another. The level of distrust grew to the point that they almost
stopped talking to each other and communicated mostly via
email or through others. Issues regarding distributions being
made by Teeling and purchases by Teeling for non-business
related materials on the company credit card began to arise. On
December 21, 2009, Teeling called a special meeting of the
shareholders to elect a third director to replace the late Mr.
Zimmerman. At the meeting, Erin Teeling [Teeling’s daughter]
was elected to the vacant Board of Directors’ seat. On
December 22, 2009, Teeling and Erin Teeling called a special
meeting of the Board of Directors. At this meeting, Teeling and
Erin Teeling voted to terminate Opielski’s employment. As
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2
100 shares were issued. Opielski received 20 shares while Zimmerman
and Teeling each received 40 shares.
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Opielski was terminated, the Shareholders’ Agreement triggered
an event requiring Teeling or Trimline to purchase Opielski’s
stock. Disputes as to whether Opielski was terminated for cause
then arose. The Shareholders’ Agreement provided for a
reduction of the purchase price if Opielski’s employment was
terminated voluntarily or involuntarily before the year 2012.
The term [“]involuntary[”] essentially meant terminated for
cause. On December 23, 2009, Teeling completed his purchase
of Zimmerman’s shares. Subsequent to Opielski’s termination,
Kreischer Miller declined to continue to act as Trimline’s
accountant[;] therefore, Trimline re-engaged the services of Mr.
Patroni, its original accountant.
Opielski filed his complaint on February 3, 2010, against Teeling
and [ ] Erin Teeling. The complaint was in equity and alleged a
breach of contract and fiduciary duties, civil conspiracy,
conversion/misappropriation of corporate funds, and a request
for accounting. A jury trial was demanded.
On February 3, 2010, Opielski filed a Motion for Preliminary
Injunction requesting the court remove Teeling from positions of
authority within Trimline, appoint a receiver pendent lite, and
require a complete financial audit of the corporation’s finances.
It also requested a discontinuation of payments to Teeling or the
Estate of Keith Zimmerman other than outlined in the
Compensation Agreement and Shareholders’ Agreement and to
pay Opielski the compensation outlined in those agreements,
including compensation that has accrued to date but remains
unpaid.
On February 17, 2010, a hearing on the Motion for Preliminary
Injunction was held. The matter was conferenced for two and a
half hours. The parties entered into an agreed interim order
without prejudice. The only relevant item of the agreed Order at
this point was the provision that Teeling pay $7,500 monthly to
Opielski for up to 16 months on account.[3]
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3
The February 17, 2010, interim agreement (1) restricted Teeling and his
wife from utilizing company credit cards, and required that they obtain
reimbursement upon consent by Opielski for business expenses they may
incur personally; (2) required Teeling to provide Opielski with monthly
statements showing receipts and disbursements as well as year-end
(Footnote Continued Next Page)
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On May 24, 2012, Teeling filed a Motion for Declaratory
Judgment requesting that the [c]ourt [o]rder that the selection
of the appraiser be made binding and conclusive on the parties
due to the Shareholders’ Agreement controlling the issue. On
January 3, 2013, the Honorable Jeffrey L. Filey denied the
motion.
On October 11, 2013, Teeling filed a Motion in Limine to Limit
Issues and/or Exclude Evidence. Teeling was seeking to exclude
Opielski’s evidence regarding his expert’s valuation of the
Trimline stock as he believed the Shareholders’ Agreement
controlled the issue of the purchase price of the stock.[] Teeling
alleged the Shareholders’ Agreement stated the valuation of the
stock would be decided by the appraiser selected and, therefore,
Opielski was bound by that valuation. On October 18, 2013,
Opielski filed an Answer to the Motion. On November 8, 2013,
the Honorable Robert Mellon denied Teeling’s Motion in Limine.
Beginning on December 2, 2013, a nine[-]day jury trial was
held, ending on December 12, 2013. Erin Teeling was dismissed
by the court and that dismissal has not been challenged by
Opielski. The jury found that Teeling violated the terms of the
Compensation Agreement in a way that harmed Opielski and
that Teeling breached his fiduciary duty to Opielski. The jury
found that damages sustained by Opielski that were proximately
caused by Teeling’s breach of fiduciary duty or breach of terms
of the Compensation Agreement totaled to $133,952.69. A
breakdown of these damages were as follows: Managerial Fees
in the amount of $1,247, Pension in the amount of $14,128,
_______________________
(Footnote Continued)
statements and access through professionals to the company’s books and
records; (3) provided various payments to Opielski, including a $7,500
monthly disbursement, pending resolution of the claims and a proper
accounting for how that payment is to be treated; and (4) noted that the
parties would choose a mutually-agreeable auditor within thirty days to
perform an audit on Trimline for the period from January 1, 2007 to March
2010. See Notes of Testimony (“N.T.”) Hearing, 2/17/10, at 5-10. The
parties chose Marcum Advisory Group. Its audit report, dated December 13,
2011, was admitted into evidence as Plaintiff’s Exhibit 77 (“Marcum Audit
Report”). See Reproduced Record (“RR”) at 489a.
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Audit Costs in the amount of $22,500, Zimmerman buy-out in
the amount of $24,000, December 2009 Zimmerman/Teeling
Distribution in the amount of $20,000, semi-monthly post
termination in the amount of $12,000, Auto[mobile expenses]
post[-]termination in the amount of $4,000, and a Contraloan in
the amount of $36,077.69. The jury did not find punitive
damages were appropriate nor that Trimline’s termination of
Opielski’s employment with Trimline met the definition of
[ ]
“ Involuntary Termination[”] as set forth in the Shareholder’s
Agreement.
Trial Court Opinion, dated 6/20/14, at 1-4.
Both parties filed post-trial motions. After oral argument, the trial
court denied the motions. The court subsequently molded the jury’s verdict
of $133,952.69 to the amount of $676,106, inclusive of pre-judgment
interest, as follows: (1) a credit to Teeling for the prior distribution to
Opielski of $120,000; (2) $529,238 for the balance of the purchase price for
Opielski’s stock in Trimline, with post-judgment interest accruing at the
annual rate of 0.69%; and (3) $146,868 for the balance of the damages
awarded by the jury, with post-judgment interest to accrue at the legal rate
of 6%.4 Both parties appealed.
In his appeal, Opielski raises the following issues for our review.
a. Is [Opielski] entitled to a new trial on damages because the
trial court erred in refusing to submit to the jury the issue of
the value of of [Opielski’s] stock in Trimline Windows, Inc. as
of the date he was frozen out of the corporation and in
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4
The trial court proportioned the prior $120,000 disbursement made to
Opielski pursuant to the February 2010 interim agreement between the
stock purchase and the jury’s damage award.
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concluding as a matter of law that the valuation of the
defendant’s expert witness was binding and conclusive
notwithstanding the record evidence demonstrating that
[Opielski’s] stock was significantly more valuable?
b. Did the trial court err in deciding as a matter of law that,
notwithstanding the legal requirements for Subchapter S
corporations, the corporation was legally required to make
distributions for the shareholders’ taxes in amounts that were
disproportionate to [ ] their pro rata ownership interest in
the corporation?
c. Is [Opielski] entitled to a new trial on the issue of damages
because the trial court failed to instruct the jury on the duty
of defendant Dennis Teeling to avoid self-dealing with the
corporation and to avoid usurping corporate opportunities,
and that he bore the burden of proof of demonstrating the
fairness of every transaction in which he received personal
benefit from the corporation?
d. Is [Opielski] entitled to a new trial on the issue of punitive
damages because the trial court erroneously instructed the
jury that the sole reason for punitive damages is to punish a
wrongdoer and refusing to charge the jury that deterrence of
future misconduct is a proper basis for punitive damages?
e. Whether the trial court erred in failing to mold the verdict to
reflect the mathematical miscalculation of various damages
that were necessarily based on upon [Opielski’s] pro rata
ownership of the corporation?
f. Whether the trial court erred in calculating the damages owed
to plaintiff when it concluded that defendant Dennis Teeling
was entitled to a reduction in the damages for a portion of the
$120,000 interim payments paid to [Opielski] by the
corporation during the pendency of the case?
g. Whether the trial court erred in calculating the value of
[Opielski’s] shares in Trimline Windows, Inc. at the time of
the freeze out by failing to add 6% simple interest from the
date of the squeeze out?
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Appellant’s Brief at 4-7.
We can quickly dispense with Teeling’s cross-appeal. Teeling did not
file an appellant’s brief in connection with his cross-appeal. However,
beginning on page 32 of his appellee’s brief, he cites two cases for
boilerplate law defining JNOV, before summarily addressing seven challenges
pertaining to the awarded damages.5 Teeling fails to provide any legal
analysis with respect to each issue. Due to his failure to comply with the
requirements of Pa.R.A.P. 2119, we are unable to provide meaningful
review. We find Teeling’s issues waived. See Pa.R.A.P. 2119; In re Jacobs,
936 A.2d 1156, 1167 (Pa. Super. 2007) (issue is waived for purposes of
appellate review when an appellant does not develop it in a brief).
Opielski seeks a new trial on damages. Appellate courts must not
interfere with the trial court’s authority to grant or deny a new trial, absent a
clear abuse of discretion by the trial court. See Harmen ex rel Harmen v.
Borah, 756 A.2d 1116, 1122 (Pa. 2000).
Opielski first challenges the trial court’s conclusion that the share
valuation determined by Brandywine Valuations was “binding and conclusive
upon Plaintiff” in accordance with the Shareholder’s Agreement. Appellant’s
Brief at 29. He avers that while the selection of the appraiser was binding,
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5
Teeling did not provide a statement of questions involved to this Court, and
did not annex his Pa.R.A.P. 1925(b) statement to his brief.
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the valuation itself was not, and the trial court should not have removed the
issue of valuation from the jury’s consideration. We disagree.
Our review of questions implicating contract interpretation and
applicability is as follows.
The interpretation of any contract is a question of law and this
Court’s scope of review is plenary. Moreover, we need not defer
to the conclusions of the trial court and are free to draw our own
inferences. In interpreting a contract, the ultimate goal is to
ascertain and give effect to the intent of the parties as
reasonably manifested by the language of their written
agreement. When construing agreements involving clear and
unambiguous terms, this Court need only examine the writing
itself to give effect to the parties’ understanding. This Court
must construe the contract only as written and may not modify
the plain meaning under the guise of interpretation.
Humberston v. Chevron, U.S.A., Inc., 75 A.3d 504, 509-10 (Pa. Super.
2013) (citations and internal quotation marks omitted).
“The task of interpreting a contract is generally performed by a court
rather than by a jury.” Id., at 510 (citation omitted). Where contract
language has a meaning that is generally prevailing, it is interpreted in
accordance with that meaning. See Gustine Uniontown Associates, Ltd.
v. Anthony Crane Rental, Inc., 892 A.2d 830, 837 (Pa. Super. 2006). See
generally Restatement (Second) Contracts, §§ 202(3)(a), 203(a). “It is
axiomatic that contractual clauses must be construed, whenever possible, in
a manner that effectuates all of the clauses being considered.” Welteroth
v. Harvey, 912 A.2d 863, 866 (Pa. Super. 2006) (citation omitted;
emphasis added).
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The Shareholders’ Agreement at ¶ III(A)(3) specifically provided that if
a shareholder’s employment with the corporation were terminated, with or
without cause, the terminated shareholder would be deemed to have made
an offer to sell all of his Stock. Pursuant to ¶ III(B) and (C)(3), if the
remaining shareholders did not choose to buy the shares of the terminated
shareholder, the Corporation was required to purchase the stock.
At the time of the signing of the Shareholders’ Agreement in 2007, the
parties agreed that the purchase price for each share of stock would be
$60,000. See Shareholders’ Agreement at ¶ IV(A) and Schedule D. The
Agreement also provided that within 60 days following the end of each fiscal
year, the Corporation and the Shareholders “shall agree (i) to continue the
existing Agreement Price or (ii) upon a new Agreement Price[.]” Id., at ¶
IV(B).
In the event of an employment termination, if the corporation and the
shareholders could not agree on a purchase price for each share, the
shareholders agreed that the purchase price “shall be determined by an
independent business appraiser selected by the [terminated] Shareholder
and the Corporation.” Id., at ¶ IV(C) (emphasis added). “In the event the
parties cannot agree on the selection of the appraiser, then the appraiser
shall be selected by the Corporation’s then regularly engaged accountant, in
good faith, whose selection shall be binding and conclusive upon the parties
hereto.” Id.- 10 -
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Finally, the Agreement specifically provides that the Shareholder’s
Agreement “shall … be legally binding upon the parties[.]” Id., at ¶ XV (B).6
Trimline and its shareholders never changed the original share price
set in the 2007 Shareholders’ Agreement. After Opielski’s employment
termination, the parties could not agree to continue that share price, nor
upon a new share Price. Although the parties initially agreed that the
accounting firm of Kreischer Miller should choose the independent appraiser,
Kreischer declined the invitation.7 Each party then submitted a list of
recommended appraisers to Mr. Patroni, the “then regularly engaged
accountant.” Id. at ¶ IV(C). Patroni chose Brandywine Valuation, an
appraiser originally proposed by Opielski, to conduct the appraisal. Opielski
also hired an appraiser to obtain another valuation of Trimline.8
Reading the relevant clauses of the Shareholders’ Agreement together,
we conclude that Opielski was bound by his agreeing not only to the method
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6
The Agreement also provides two specific schedules of percentages of
purchase price to be paid for Opielski’s shares in the event his employment
was voluntarily or involuntarily terminated, dependent on the year of
termination. See Shareholders’ Agreement, ¶ III(C)(3).
7
On December 22, 2009, the date of Opielski’s employment termination, the
Corporation’s accountant was Kreischer Miller. After Opielski’s discharge,
however, Kreischer refused to continue to serve as Trimline’s accountant,
and Trimline returned to using Mr. Patroni as its accountant.
8
Brandywine Valuations valued the business at $3.06 million. Opielski’s
appraiser valued the business at $5.4 million as of December 22, 2009, the
date of his termination from employment.
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of choosing the independent appraiser, but also that the independent
appraiser would determine the share price in the event of a disagreement
such as that presented here. Accordingly, we agree with the trial court that
the issue of share pricing was a matter of contract interpretation, which, as
a matter of law, was properly removed from the jury’s determination.
Opielski also argues that Patroni’s choice of appraiser was not done in
good faith. As the trial court noted, Opielski did not proffer any evidence of
bad faith to support his contention. Considering the undisputed evidence
showed that Patroni chose the appraiser because Opielski had recommended
him, we conclude that Opielski’s argument is specious at best.
Opielski also avers that “the jury determined that Teeling breached his
fiduciary duty to Opielski by wrongfully freezing him out of Trimline” and,
accordingly, the jury should have been allowed to make an award of the fair
market value of the shares based on the trial testimony of the parties’
appraisers. Appellant’s Brief, at 30-32, relying on Viener v. Jacobs, 834
A.2d 546, 556 (Pa. Super. 2003).
In Viener, the appellant challenged the trial court’s calculation of
compensatory damages after the court explicitly concluded he had been
“froze[n] out” from a meaningful role in close corporation’s operation by the
other two shareholders. 834 A.2d at 556. The trial court calculated
compensatory damages based on a “fair value of Viener’s interests in” the
enterprise rather than the share price provided in the shareholder
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agreement. Id., at 558. The trial court did not assign the share valuation
provided in the shareholders’ agreement because that agreement “was silent
regarding situations in which a shareholders’ employment was terminated
involuntarily. Therefore, the agreement did not apply.” Id.Unlike Viener, the Shareholders’ Agreement at issue here was not
silent on the issue of share valuation in the event of employment
termination. The Agreement clearly provided that in the event of a
termination from employment, voluntary or involuntary, the price for each
share of Stock would be determined by an independent business appraiser.
Based on our reading of the Shareholders’ Agreement, we conclude that the
trial court correctly determined that the value of the shares could be
determined only by the method set forth in the binding Shareholder’s
Agreement.
Opielski also avers that by concluding that Brandywine Valuation’s
appraisal of the company stock was binding upon Opielski, the trial court
violated the coordinate jurisdiction rule because two other judges had denied
Teeling’s pre-trial motions to preclude Opielski’s expert from testifying at
trial on the value of the business.9
The trial court addressed this issue as follows.
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9
Our review of the relevant pre-trial motions indicates that Teeling was
trying to preclude Opielski’s expert from testifying as to his valuation of the
company because Brandywine Valuation had been chosen in accordance with
the Shareholders’ Agreement.
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Opielski claims the coordinate jurisdiction rule precluded us from
reversing the prior Orders of Judge Finley and Judge Mellon on
this issue. On January 3, 2013, the Honorable Jeffrey L. Finley
denied Teeling’s Motion for Declaratory Judgment which
requested that the Court order that the selection of the appraiser
be made binding and conclusive on the parties due to the
Shareholders’ Agreement controlling the issue. On November 8,
2013, the Honorable Robert Mellon denied Teeling’s Motion in
Limine to Limit Issues and/or Exclude Evidence which sought to
exclude Opielski’s evidence regarding his expert’s valuation of
the Trimline stock as Teeling believed the Shareholders’
Agreement controlled the issue of the purchase price of the
stock, therefore the valuation of the stock decided by the
appraiser selected was binding on the parties. We do not believe
the coordinate jurisdiction rule applies here.
It has been held that “when determining whether the coordinate
jurisdiction rule applies, the court is not guided by whether an
opinion was issued in support of the initial ruling. Instead, this
Court looks to where the rulings occurred in the context of the
procedural posture of the case. Riccio v. Am. Republic Ins.
Co., 705 A.2d 422, 425 (Pa. 1997) (citations and quotations
omitted). In this case, we did not believe the issue of the
valuation of the stock could be decided prior to trial because
evidence needed to be presented. However, in the event that
the Court believes the coordinate jurisdiction rule does apply, we
believe this case represents a circumstance where a departure
from the rule is allowed.
The Supreme Court has stated “judges of coordinate jurisdiction
sitting in the same case should not overrule each others’
decisions. Departure … is allowed only in exceptional
circumstances such as where there has been an intervening
change in the controlling law, a substantial change in the facts or
evidence giving rise to the dispute in the matter, or where the
prior holding was clearly erroneous and would create a manifest
injustice if followed.” Ryan v. Berman, 813 A.2d 792, 795 (Pa.
2002) (quoting Commonwealth v. Starr, 664 A.2d 1326 (Pa.
1995)). In our case, the intervening issue concerning the
valuation of the stocks that still needed to be decided concerned
selection of the appraiser. At the time Judge Finley and Judge
Mellon addressed the issue, there was no evidence before them
as to the selection of appraiser and that issue was in dispute.
Because of that, a decision to grant either of the Motions they
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decided would have been premature. At the trial, undisputed
evidence was presented that the Shareholders’ Agreement
controlled this issue, which would make it inappropriate to allow
the jury to consider it. Therefore, we were not bound by the
previous orders and made our own ruling that Opielski was
bound by the valuation made by the appraiser since the
undisputed evidence showed the appraiser was properly selected
in accordance with the Shareholders’ Agreement. As indicated,
this evidence was not available to Judge Finley or Judge Mellon.
Trial Court Opinion at 18-19 (emphasis added).
The previous denials of Teeling’s pre-trial motions to preclude or limit
were not findings of fact on the ultimate legal issue of the proper share
valuation. It was only after presentation of all of the evidence that the issue
could be finally resolved. Accordingly, we do not agree that the trial court
violated the coordinate jurisdiction rule.
In his second issue, Opielski avers that the “trial court erred in ruling
that the terms of the Shareholders’ Agreement precluded Opielski from
seeking damages for certain under-distributions.” Appellant’s Brief at 52.
He states that Teeling and Zimmerman each received distributions in April
and June 2007 in the amounts of $55,000 and $63,068, respectively, and
pursuant to the Shareholders’ Agreement, he should have received
distributions as well.
The Shareholders’ Agreement provides, in relevant part, as follows.
So long as the Corporation’s Subchapter S election is in effect,
the Board Directors of the Corporation shall, unless prohibited by
law or agreement from doing so, declare dividends from time to
time (but at least annually) in order to enable the Shareholders
to pay United States federal, state and local income taxes on
their shares of the Corporation’s items of income, gain, loss,
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deduction and credit. Such dividends, if permitted, will be
declared in an aggregate amount sufficient to enable the
Shareholders to pay such taxes as if the Shareholders were
subject to tax at the highest marginal aggregate income tax rate
then applicable to any Shareholder and such amount shall be
distributed among the Shareholders in proportion to their Stock
holdings, such distribution to be made annually at least ten (10)
days prior to the deadline for filing tax returns. The Board of
Directors of the Corporation may, in its sole discretion, authorize
greater dividends and distributions
Shareholders’ Agreement at ¶ II(C)(1).
According to the Marcum Audit Report, Trimline paid 2006 taxes on
behalf of Teeling and Zimmerman on January 15, 2007, and April 13, 2007,
in the amounts of $55,000 and $63,068, respectively (not April and June, as
Opielski avers). See Marcum Audit Report at 32, RR 527a. The Marcum
Report refers to these tax payments as “distributions.” Id. The trial court
addressed Opielski’s challenge as follows.
The parties signed a Shareholders’ Agreement, which became a
binding contract on all parties. The Shareholders’ Agreement
essentially states in Section II, C-1 that so long as the
Corporation’s Subchapter S election is in effect, the Corporation
will make distributions for payment of the company’s taxes. In
accordance with the Shareholders’ Agreement, the payment of
taxes for shareholders is permitted without regard to when it
was paid and is based on when tax liability were incurred. The
payments in question were received by Teeling and Zimmerman
in early 2007 to pay the taxes due on Trimline’s income from
2006. Opielski was not a shareholder in 2006 so he did not have
any liability for taxes on the corporation’s 2006 earning.
Therefore, Opielski would not be entitled to any amount that
Teeling and Zimmerman received because they had an obligation
for taxes in the corporation’s 2006 earnings.
Trial Court Opinion at 17.
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Opielski does not challenge the enforceability of the clause of the
Shareholders’ Agreement allowing for tax payments to be made from the
Corporation for shareholders. He does not dispute that he was not a part of
Trimline in 2006. There is no provision in the Agreement providing that
Opielski would receive a payout, proportionate or otherwise, based on the
distributions made for the payment of 2006 taxes. We discern no error on
the part of the trial court in concluding that the Shareholders’ Agreement
controlled the resolution of this issue.10
Opielski’s third and fourth issues challenge jury instructions. A jury
charge is adequate “unless the issues are not made clear, the jury was
misled by the instructions, or there was an omission from the charge
amounting to a fundamental error.” Tincher v. Omega Flex, Inc., 104
A.3d 328, 351 (Pa. 2014) (citations omitted). On review, “the proper test is
not whether certain portions or isolated excerpts taken out of context appear
erroneous. We look to the charge in its entirety, against the background of
the evidence in the particular case, to determine whether or not error was
committed and whether that error was prejudicial to the complaining party.”
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10
Opielski hints that because the 2006 tax payment was titled a
“distribution” in the Marcum Audit Report, and he was not given a pro rata
share, the corporation somehow had two different classes of stock in
violation of Subchapter S rules and regulations. See Appellant’s Brief at 54,
citing federal regulations and federal case law. He fails to develop this
argument with reference to the facts of this case or any Pennsylvania
authority. This argument is, thus, waived. See Pa.R.A.P. 2119; Jacobs,
supra.
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Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015) (citation
omitted).
Opielski avers that the trial court’s jury instruction on punitive
damages was inadequate because it did not mention the deterrent effect
such an award would have. The trial court instructed the jury regarding
punitive damages, as follows.
Punitive damages are designed to punish somebody if
punishment is appropriate. So punitive damages do not have a
specific correlation to a specific item of compensatory damages.
They are really just a penalty. And if you decide that that
penalty is appropriate, then you have to put in an amount. And
there is no testimony about what that amount is. That is up to
you as jurors to collectively decide, if punitive damages are
appropriate, what the appropriate amount is.
Notes of Testimony, Trial, 12/11/13, at 32-33.
Addressing Opielski’s challenge to this instruction, the trial court
stated:
It is well known that punishments and penalties are meant to
deter behavior, therefore, we do not believe that by failing to
specifically instruct the jury on deterrence, the charge confused
the jury, misled the jury, or may have affected the jury’s verdict.
We believe our charge adequately and clearly covered the
subject[.]
Trial Court Opinion at 15-16. We agree.
After review of the totality of the evidence of the case, we cannot
conclude that the trial court’s instruction was confusing, misleading, or
prejudicial to either party. See Tincher, supra. Accordingly, this issue is
without merit.
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Opielski also challenges the jury instruction given regarding Teeling’s
fiduciary responsibilities to Trimline. In support, Opielski quotes the
instruction he requested, followed by a string cite of case law—with no
explanation whatsoever of its relevance. He fails to provide us with the
instruction that was given by the trial court with respect to fiduciary duty.
Then, without citation to the record or legal authority, Opielski provides a
self-serving, selective reiteration of evidence and concludes that a
“substantial award in Opielski’s favor would have been forthcoming” if the
court had, in essence, given the instruction he requested. Appellant’s Brief
at 52. Opielski has failed to provide any legal analysis or otherwise develop
this issue as required by Pa.R.A.P. 2119. It is, thus, waived. See Boatin v.
Miller, 955 A.2d 424, 431 (Pa. Super. 2008) (indicating that the failure to
develop an argument with citation to and analysis of relevant authority
waives the issue on appeal).
Opielski next challenges the trial court’s order molding of the verdict.
That order provides the following.
AND NOW, this 12th of March, 2014, the verdict of the jury is
molded and judgment is entered in favor of Plaintiff Brian
Opielski and against Defendant Dennis Teeling in the principal
sum of $676,106.00 inclusive of prejudgment interest.
This amount is allocated as follows:
$529,238.00 is the balance of the purchase price
for Plaintiff’s interest in Trimline Windows
Inc. This amount shall accrue post-
Judgment annual interest at the rate of
.69% simple.
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$146,868.00 is the balance of the damages award by
the jury, and shall accrue post-judgment
Interest at the rate of 6% simple.
This judgment includes credits for prior payment of $120,000
allocated per this Court’s Order of March 6, 2014.
This judgment terminates the Interim Order of February 17,
2010.
Order, entered 3/13/14.
Opielski avers that “the trial court erred in awarding 0.69% simple
prejudgment interest on the stock purchase damages resulting from Teeling
freezing Opielski out of the corporation.” Appellant’s Brief at 58. Without
citation to Pennsylvania authority, he concludes that “[d]amages for the
value of Opielski’s stock accrued as of the date of his termination, December
22, 2009,” and “[u]nder applicable law, he was entitled to 6% simple
interest on the outstanding balance.” Id. That is the sum and substance of
his argument on this discrete issue.
In addressing Opielski’s challenge, the trial court stated:
Again, the Shareholders’ Agreement is controlling in regards to
this issue. The Shareholders’ Agreement states in Section V-F
that the interest on unpaid balances of the Purchase Price shall
accrue from the date of the Triggering Event at the minimum
annual rate [then] necessary to avoid the application of the
imputed interest provisions of the IRS Code. The parties agreed
that the applicable minimum annual interest rate that would be
imputed according to the IRS in 2009 for a short term, thirty[-]
four month loan, was 0.69%. Therefore, this interest rate is the
rate we applied to the valuation of Opielski’s stock. We applied
this to both pre-judgment and post-judgment interest since that
is what the Shareholders’ Agreement required. The
Shareholders’ Agreement specifies in Section V-G that payments
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for the buy-out of a shareholders[’] stock after a triggering event
is over time and is to be secured by a Promissory Note in the
form attached to the Shareholders’ Agreement. That Promissory
Note specifically provides that the interest rate established by
the applicable IRS provision, in this case 0.69%, was applicable
in the event of a default both pre[-] and post-judgment. We
found that the parties were bound by that term of the
Shareholders’ Agreement.
Trial Court Opinion at 22.
Opielski provides absolutely no acknowledgement of the provisions of
the Shareholders’ Agreement found by the trial court to be controlling. Nor
does he mention that the parties had discussed and reached an agreement
on the issue of prejudgment interest. We conclude that the trial court did
not err in awarding interest in accordance with the parties’ agreements.
See TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253,
261 (Pa. 2012) (stating that where a contract expressly provides for the
payment of interest, it is payable not as damages but pursuant to a contract
duty that is enforceable).
Next, Opielski avers that the trial court “erred in concluding that
Teeling was entitled to a reduction in the damages owed to Opielski for a
portion of the $120,000 interim payments received by Opielski in accordance
with the Interim Agreement.” Appellant’s Brief at 59. He argues that
because Trimline, not Teeling, made the interim payments, “the trial court
should have considered all of the interim payments to have reduced the
amount owed to Opielski for his stock” and, if it had done so, “the damages
awarded to Opielski would have been greater.” Id., at 59-60.
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Opielski cites no case law and utterly fails to provide any analysis to
support his speculative conclusion. Accordingly, this argument is waived.
See Pa.R.A.P. 2119; Banfield v. Cortes, 110 A.3d 155, 168 n.11 (Pa. 2015)
(observing that “[w]here an appellate brief fails to provide any discussion of
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, the claim is waived. It is not the
obligation of an appellate court to formulate an appellant's arguments for
him.”).
Finally, Opielski avers that the trial court erred in not molding the
verdict to compensate for the jury’s alleged “mathematical miscalculation”
when it awarded him 20% of the managerial fees, pension payments to
Zimmerman’s widow, the Zimmerman Buy-out, and the December 2009
distributions. Appellant’s Brief at 60.11 Teeling responds that there were
many items of damages claimed by Opielski, for many of which the jury did
not award any damages. He also observes, “there is no basis in law for the
trial court to invade the province of the jury and conclude that Opielski is
entitled to one-half of the amount that was in dispute, rather than 20% of
the amount that was in dispute.” Appellee’s Brief at 32.
____________________________________________
11
Opielski argues that, because he owned 50% of the amount of stock
owned by Teeling until December 23, 2009, and 25% of the amount of stock
owned by Teeling after Teeling acquired the shares from Zimmerman’s
estate, “[t]o properly compensate Opielski [], the jury would have had to
award Opieski 50%, and later 25%, of the amount of the over-distribution to
Teeling.” Appellant’s Brief at 60.
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The trial court addressed both parties’ challenges to the jury’s damage
award as follows.
[T]he jury’s award is a clear example of a jury compromise.
The Superior Court has held that compromise verdicts, which
may arise out of the issue of damages or negligence, are
expected and allowed. Hose v. Hake, 192 A.2d 339, 341 (Pa.
1963). [ ] It is also the province of the jury to resolve
inconsistencies and contradictions, to disbelieve all or part of the
testimony of the witnesses, and to thereafter compromise the
verdict or establish an amount which it determined would justly
compensate the plaintiff for his loss. Fierman v. [SEPTA], 419
A.2d 757, 759 (Pa.Super. 1980). The fact that a verdict was a
compromise is not a basis for a new trial unless the verdict was
so unreasonably low as to present a clear case of injustice.
Campana v. Alpha Broad Co., Inc., 361 A.2d 708, 710 (Pa.
Super. 1976). The Superior Court has also held that “the
injustice of the verdict should stand forth like a beacon. If the
verdict bears a reasonable resemblance to the proven damages,
it is not the function of the court to substitute its judgment for
the jury’s.” Rutter v . Morris, 243 A.2d 140, 142 (Pa. Super.
1968) (quoting Elza v. Chovan, 152 A.2d 238, 241 (Pa. 1959)).
In the case at hand, we believe the jury’s award for damages
was a proper compromise verdict. … We believe that the jury
simply weighed the credibility of witnesses and evidence and
compromised on the issue of damages. The damages do not
seem to be an injustice to either party, as the jury could have
awarded more or less on each issue. Also, the total award
Plaintiff received from the jury for damages was $146,868.00,
which is not an unreasonably low amount.
Trial Court Opinion at 14.
Opielski is, in essence, seeking to alter the jury’s verdict. He does not
provide any case law to support his argument that the jury’s award can and
should be changed. Based on our extensive review of the trial transcripts
and exhibits, we conclude that the trial court properly exercised its discretion
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and made no errors of law in molding the verdict as it did, and in denying
Opielski’s motion for a new trial.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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