Plasman v. Decca Furniture (USA), Inc.

• Citation: 800 S.E.2d 761,253 N.C.App. 484
• Decision Date: 16 May 2017
• Docket Number: No. COA16-777,COA16-777
• Court: Court of Appeal of North Carolina (US)
• Parties: Christian G. PLASMAN, in his individual capacity and derivatively for the benefit of, on behalf of and right of nominal party Bolier & Company, LLC, Plaintiffs, v. DECCA FURNITURE (USA), INC., Decca Contract Furniture, LLC, Richard Herbst, Wai Theng Tin, Tsang C. Hung, Decca Furniture, Ltd., Decca Hospitality Furnishings, LLC, Dongguan Decca Furniture Co., Ltd., Darren Hudgins, Decca Home, LLC, and Elan by Decca, LLC, Defendants, and Bolier & Company, LLC, Nominal Defendant, v. Christian J. Plasman a/k/a Barrett Plasman, Third-Party Defendant.

253 N.C.App. 484
800 S.E.2d 761

Christian G. PLASMAN, in his individual capacity and derivatively for the benefit of, on behalf of and right of nominal party Bolier & Company, LLC, Plaintiffs,
v.
DECCA FURNITURE (USA), INC., Decca Contract Furniture, LLC, Richard Herbst, Wai Theng Tin, Tsang C. Hung, Decca Furniture, Ltd., Decca Hospitality Furnishings, LLC, Dongguan Decca Furniture Co., Ltd., Darren Hudgins, Decca Home, LLC, and Elan by Decca, LLC, Defendants,
and
Bolier & Company, LLC, Nominal Defendant,
v.
Christian J. Plasman a/k/a Barrett Plasman, Third-Party Defendant.

No. COA16-777

Court of Appeals of North Carolina.

Filed: May 16, 2017

Law Offices of Matthew K. Rogers, PLLC, Hickory, by Matthew K. Rogers, for plaintiffs-appellants and third-party defendant-appellant.

McGuireWoods LLP, Charlotte, by Robert A. Muckenfuss, Jodie H. Lawson, and Andrew D. Atkins, for defendants-appellees.

ZACHARY, Judge.

253 N.C.App. 486

This appeal comes to the Court as the result of a bitter corporate dispute that has yet to reach the discovery phase nearly five years after the action was filed. Plaintiff Christian G. Plasman (Plasman) and third-party defendant Christian J. Plasman (Barrett) (collectively with Plasman, the Plasmans) appeal from an order of the North Carolina Business Court¹ holding them in civil contempt of court.

800 S.E.2d 764

The contempt order was entered after the Plasmans failed to comply with a Business Court order enforcing the terms of a preliminary injunction entered against them in federal court. On appeal, the Plasmans argue that the Business Court lacked jurisdiction to enter the contempt order while their appeal from the order enforcing the injunction was pending in this Court. The Plasmans then make a series of arguments that attack the sufficiency of the contempt order itself. After careful review, we conclude that the Business Court retained jurisdiction to enter the contempt order, and that the order should be affirmed in its entirety.

I. Background

In April 2002, Plasman formed Bolier & Company, LLC (Bolier), a closely held North Carolina company offering residential furniture designs that were also suited for use in the hospitality industry. Shortly thereafter, Plasman partnered with Decca Furniture, Ltd. (Decca China), which manufactured Bolier's furniture lines. Decca China then formed Decca Furniture (USA), Inc. (Decca USA) to own Decca China's interest in Bolier. Richard Herbst (Herbst) was Decca USA's president at all relevant times.

In August 2003, Plasman and Herbst executed an operating agreement that granted Decca USA a 55% majority ownership interest in Bolier, and that allowed Plasman to retain a 45% minority ownership interest for himself. The operating agreement also vested Decca USA with the authority to make all employment decisions related to Bolier. In November 2003, Plasman entered into an employment agreement with Bolier, which provided that Plasman could be terminated without cause. Plasman executed the employment agreement on his own behalf, and Herbst signed on behalf of Decca USA and Bolier. Thereafter, Plasman

253 N.C.App. 487

served as President and CEO of Bolier, and his son, Barrett, worked as Bolier's operations manager.

According to defendants, despite the significant investments of Decca USA and Decca China in Bolier's operations, they sustained losses in excess of $2 million between 2003 and 2012. As a result, Decca USA terminated the employment of Plasman and Barrett on 19 October 2012. The Plasmans, however, refused to accept their terminations and continued to work out of Bolier's office space. During this time, the Plasmans set up a new bank account in Bolier's name, and they diverted approximately $600,000.00 in Bolier customer payments to that account. From these diverted funds, the Plasmans paid themselves, respectively, approximately $33,170.49 and $17,021.66 in salaries and personal expenses. Plasman also wrote himself a $12,000.00 check, dated 5 December 2012, from the new account for "Bolier Legal Fees." Decca USA eventually changed the locks to Bolier's offices.

On 22 October 2012, the Plasmans filed the instant action in Catawba County Superior Court alleging claims for, inter alia , corporate dissolution, breach of contract, fraud, constructive fraud, and trademark as well as copyright infringement. Two days later, the action was designated as a mandatory complex business case and assigned to the North Carolina Business Court. After removing the case to the United States District Court for the Western District of North Carolina, Decca USA moved Judge Richard L. Voorhees for a preliminary injunction against the Plasmans. On 27 February 2013, Judge Voorhees entered an order (the injunction) that enjoined the Plasmans from acting on Bolier's behalf in any manner. Judge Voorhees further ordered the Plasmans to return all diverted funds to Bolier within five business days, and to provide Decca USA with an accounting of those funds. Judge Voorhees did not require Decca USA to post a security bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, but the injunction did contain various terms that were meant to protect Plasman's rights as a minority owner of Bolier while the litigation continued.

One week after the injunction was entered, the Plasmans filed their "Response to Court Order" in federal court, which challenged certain provisions of the injunction and stated that "Plaintiffs have fully complied to the best of their ability with the Court Order signed on February 27, 2013." Shortly thereafter, the Plasmans filed another motion that sought to have the federal court provide additional safeguards protecting "Plaintiffs Chris Plasman and Bolier ... pending final resolution of the merits." This motion also sought to "clarify the ... [injunction] ... to

800 S.E.2d 765

specifically permit [the Plasmans] to retain funds paid to Chris Plasman

253 N.C.App. 488

and Barrett Plasman for wages earned and Bolier ... expenses paid (including the $12,000.00 paid as reimbursement for legal expenses) prior to January 14, 2013[.]" Although Judge Voorhees never ruled on these motions, the Plasmans neither appealed the injunction nor properly sought to have it reconsidered.

The action was remanded to the North Carolina Business Court in September 2014 when Judge Voorhees dismissed the Plasmans’ federal copyright claims and declined to exercise supplemental jurisdiction over the state law claims that remained. Upon remand, the parties filed competing motions for consideration by Judge Louis A. Bledsoe, III. In a document entitled "Plaintiffs Motion to Amend Preliminary Injunction, to Dissolve Portions of the Preliminary Injunction and Award Damages, and Motion for Sanctions[,]" the Plasmans moved Judge Bledsoe to, inter alia , amend and dissolve certain portions of the injunction. In contrast, Decca USA sought to enforce the injunction's terms. Contending that the Plasmans were in willful violation of the injunction, Decca USA moved Judge Bledsoe to hold the Plasmans in civil contempt and to impose sanctions against them. After conducting a hearing on the parties’ motions, Judge Bledsoe entered an order on 26 May 2015 (the 26 May Order) denying the Plasmans’ motion, and reasoning that because the preliminary injunction was carefully crafted and narrowly tailored, it should not be "modified, amended, or dissolved in any respect."² Although Judge Bledsoe declined to hold the Plasmans in contempt, he did grant Decca USA's motion to enforce the injunction's requirements. To that end, the Plasmans were ordered to pay Decca USA $62,191.15 plus interest and to provide the accounting required by the injunction.

On 25 June 2015, the Plasmans filed notice of appeal from the 26 May Order. Defendants later filed with this Court a motion to dismiss the Plasmans’ appeal, arguing that the 26 May Order was not immediately appealable because it was an interlocutory order that did not affect a substantial right of the Plasmans.

In July 2015, the Business Court, sua sponte , directed the parties to "submit short briefs advising the Court whether this case may proceed with further pleadings and discovery, and to a determination on the merits, or whether this case must be stayed pending resolution" of

253 N.C.App. 489

the Plasmans’ interlocutory appeal from the 26 May Order. The case was temporarily stayed to allow for the parties’ submissions. On 22 September 2015, while the Plasmans’ appeal was pending in this Court, defendants filed a motion in the Business Court seeking to have the Plasmans held in contempt for failure to comply with the 26 May Order.

In October 2015, Judge Bledsoe entered an order that reflected his consideration of a stay pending appeal. Relying in part on this Court's decision in RPR & Assocs., Inc. v. Univ. of N. Carolina-Chapel Hill , 153 N.C.App. 342, 344, 570 S.E.2d 510, 512 (2002), cert. denied and disc. review denied , 357 N.C. 166, 579 S.E.2d 882 (2003), Judge Bledsoe determined that he had the authority to determine whether the 26 May Order was...