                                                                                         07/13/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     May 23, 2017 Session

  ALEXANDER A. STRATIENKO, ET AL v. OSCAR H. BROCK, ET AL.

                    Appeal from the Circuit Court for Hamilton County
                    No. 12C1273, 13C867      Jerri Bryant, Chancellor1
                         ___________________________________

                              No. E2016-01467-COA-R3-CV
                          ___________________________________


This is a jury case arising from the formation and management of a limited liability
company. The jury determined that the Appellee developer was entitled to payment for
his membership interest in the LLC. The jury also determined that the Appellant
investor, his wife, and the LLC should indemnify the developer for the judgment relating
to the lease of an adjacent lot. Because there is material evidence to support the jury’s
verdict, we affirm and remand.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

William H. Horton, Chattanooga, Tennessee, for the appellants, Alexander Stratienko,
McNeal Properties, LLC, and Cardiac and Vascular Associates, P.C..

Stephen S. Duggins, Chattanooga, Tennessee, for the appellee, Oscar Brock.


                                            OPINION

                                       I.     Background

       In approximately 2002, Dr. Alexander Stratienko, a cardiologist, expressed an
interest in acquiring his own medical office building near the hospital. Dr. Stratienko and
Mr. Oscar Brock, a real estate developer, discussed building an office complex, where

       1
           Chancellor Bryant heard this case by interchange.
Dr. Stratienko could have his office and rent out the other space. To this end, Dr. and
Mrs. Lisa Stratienko, along with Mr. Brock made an offer to purchase undeveloped
property near the hospital. The agreed purchase price was $185,000. The property
closed in May 2003, and the deed listed the Stratienkos as owners of a one-half interest
and Mr. Brock as the owner of the other one-half interest.

        Dr. Stratienko’s existing lease expired in 2007, and he wanted the new office
completed by that time. The parties began the process of developing the property. By
late 2005, the parties had agreed on a 30,000 square foot office building. In August of
2006, Mr. Brock and the Stratienkos formed McNeal Properties, LLC (“McNeal”) to own
the property; the parties quitclaimed the property to McNeal in September of 2006. The
initial operating agreement for McNeal listed Mr. Brock and the Stratienkos as owning
50% each. Mr. Brock was designated the chief manager in the operating agreement,
which meant that he wrote checks from the McNeal account and handled the
bookkeeping.

       Construction on the office space was completed in July of 2007. Dr. Stratienko
moved his practice, Cardiac and Vascular Associates (“CVA”), into the second floor of
the new office building. CVA entered into a lease agreement with McNeal on July 1,
2007. The Stratienkos insisted that they and CVA have a controlling interest in McNeal.
Mr. Brock agreed, and the lease provided, that CVA would obtain a membership interest
in McNeal after five years of leasing. On or about January 1, 2008, Mr. Brock emailed
the Stratienkos’ attorney an amended operating agreement that included CVA as a
member, with the following ownership percentages: 37% to the Stratienkos, 37% to Mr.
Brock, and 26% to CVA.

       As construction on the McNeal building was being completed, Dr. Stratienko
expressed frustration about a large billboard on a neighboring lot that blocked the view of
their building. The Stratienkos were also interested in the neighboring lot for overflow
parking. Dr. Stratienko approached Mr. Brock about acquiring the property, and Mr.
Brock contacted Wayne Peters, the representative over the trust that owned the property.
Mr. Brock reported that Mr. Peters would not sell the lot, but would agree to a lease. Mr.
Peters refused to enter into a lease agreement with McNeal, but agreed to enter into a
lease agreement with Mr. Brock, who signed as the lessee. Mr. Brock ultimately entered
into a fifteen year lease, which began on May 1, 2007 and gave him the right of first
refusal to acquire the property (hereinafter referred to as the “Peters Lease”). Mr. Brock
paid the rent on this adjacent property from McNeal funds for almost five years.

       The relationship between Mr. Brock and the Stratienkos began to deteriorate in
December 2010, when Mr. Brock, who was having financial difficulties, requested a
distribution, from McNeal’s cash reserve, to its members. The Stratienkos wanted to use
the funds to pay down the debt and did not agree to the distribution. Mr. Brock then
requested a buyout of $500,000, which the Stratienkos declined on the ground that
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McNeal’s debt exceeded the value of the building. McNeal’s construction loan with
Regions Bank terminated in September of 2011. However, the parties entered into a new
loan with Regions that included a $700,000 second mortgage as a HELOC, with the
Stratienkos’ home as collateral. At the time of the refinance, Mr. Brock did not have
capital to contribute to the refinancing, nor did he provide any collateral to secure the
new loan.

       In February of 2012, the Stratienkos called a member meeting and made a motion
for the members to contribute capital sufficient to pay back the $700,000 line of credit.
Mr. Brock voted against the motion. Because CVA’s interest in McNeal had not yet
vested, the motion failed for lack of a majority. In March 2012, the Stratienkos requested
termination of the lease, or that Mr. Brock stop using McNeal funds to pay the rent. Mr.
Brock refused. Ultimately, Mr. Peters filed a lawsuit against Mr. Brock to accelerate
future payments. Mr. Brock agreed to a judgment, and at the time of trial, he was making
payments to Mr. Peters in the amount of $600 per month. On or about April 12, 2012,
following an additional dispute concerning fees charged to the tenants, including CVA,
the Stratienkos moved McNeal’s funds to a new account, thus, denying Mr. Brock access
to McNeal funds.

       On April 30, 2012, Mr. Brock filed a derivative lawsuit against the Stratienkos,
with McNeal as a nominal defendant. Mr. Brock sought recovery for breach of fiduciary
duty, ultra vires, bad faith breach of contract, procuring breach of contract, tortious
interference with contract, self-dealing, civil conversion, civil conspiracy, intentional
misrepresentation, disgorgement of profits unlawfully obtained, recovery for damage to
reputation and goodwill, and judicial dissolution of McNeal. Mr. Brock averred that he
was 50% owner of McNeal and that the Stratienkos wrongfully attempted to exclude him
from the company. Mr. Brock also alleged that the Stratienkos: (1) caused a McNeal
tenant to breach its lease; (2) converted McNeal funds; and (3) made false representations
in connection with a refinancing of McNeal property. Finally, Mr. Brock requested
dissolution of McNeal due to deadlock and sought temporary injunctive relief concerning
continuing management of McNeal. On May 14, 2012, the Stratienkos filed their answer.
On May 17, 2012, Mr. Brock filed a third-party complaint on behalf of McNeal against
CVA, asserting claims for breach of contract and civil conspiracy.

       In July of 2012, after CVA’s membership interest in McNeal had vested, the
Stratienkos called a member meeting and made a capital call to pay off the HELOC. The
percentage of the capital call for each member was based on the ownership percentages:
36% each for the Stratienkos and Mr. Brock and 26% for CVA. Mr. Brock voted against
the capital call, but the Stratienkos and CVA voted for it and paid their share. In August
of 2012, Mr. Brock was removed as a member under the terms of the operating
agreement for failure to pay his share of the capital call.

      On June 28, 2013, the Stratienkos and McNeal filed a new action against Mr.
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Brock, Regent Properties, and Fleetwood2, seeking a declaratory judgment that Mr.
Brock did not have a valid membership interest in McNeal and was divested of any
purported membership interest as a result of failure to satisfy the capital call. The
Stratienkos and McNeal also asserted a claim against Mr. Brock for breach of an
agreement between the parties for management services, breach of the operating
agreement in multiple respects, and violation of the Revised Limited Liability Act. The
Stratienkos asserted claims against Regent and Fleetwood for unjust enrichment for
payments made by McNeal at the direction of Mr. Brock. Mr. Brock asserted a
counterclaim against the Stratienkos and McNeal and a third-party complaint against
CVA for declaratory judgment regarding his ownership rights in McNeal, for breach of
contract, and for promissory estoppel relating to the lease he entered with Mr. Peters.

       The lawsuits were consolidated and tried to a jury over eight days in February,
2016. The trial court entered judgment on the jury verdict on March 3, 2016. The
judgment states that: (1) Mr. Brock is not currently a member of McNeal, but is entitled
to a judgment against McNeal in the amount of $45,588 for his membership interests; (2)
the Stratienkos and McNeal were to indemnify Mr. Brock for the judgment relating to the
Peters lease; and (3) the remaining claims were dismissed with prejudice.

        On March 30, 2016, Dr. Stratienko, CVA, and McNeal (together, “Appellants”)
filed a motion for judgment notwithstanding the verdict, or in the alternative, motion to
alter or amend and supporting memorandum of law. Specifically, Dr. Stratienko and
CVA claimed error in the jury’s finding that Mr. Brock was entitled to any payment for
his membership interest in McNeal, and that McNeal was liable on the Peters Lease.
Appellants argued that there was no material evidence to support the jury’s finding that
McNeal was obligated to indemnify Mr. Brock on the judgment obtained regarding the
Peters Lease. The Appellants also argued that there was no material evidence to support
the jury’s finding that the Stratienkos individually were obligated to indemnify Mr. Brock
on the judgment obtained regarding the Peters Lease. The trial court denied Appellants’
post-trial motions by order of June 16, 2016. Appellants appeal.

                                            II. Issues

       1.      There was no material evidence to support the jury’s finding that Mr. Brock
               was entitled to payment for his membership interest.

       2.      There was no material evidence to support the jury’s finding that McNeal
               was obligated to indemnify Mr. Brock on the Peters judgment.


       2
           Regent Properties undertook development projects around Chattanooga, and Mr. Brock owned
30% of the company until he asked to be bought out in 2009, at which point he moved his broker’s
license to Fleetwood, a commercial real estate firm. These entities are not parties to this appeal.
                                               -4-
          3.    There was no material evidence to support the finding that the Stratienkos
                were individually liable regarding the Peters judgment.

                                  III. Standard of Review

        We review a judgment rendered by a jury by determining whether the record
contains “material evidence to support the [jury’s] verdict.” Tenn. R. App. P. 13(d);
Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980). Accordingly, this Court’s review
is limited to determining whether there is material evidence to support the verdict.
Material evidence is defined as “evidence material to the question in controversy, which
must necessarily enter into the consideration of the controversy and by itself, or in
connection with the other evidence, be determinative of the case.” Knoxville Traction
Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905). This Court is not to weigh the evidence or
to consider the preponderance of the proof of the evidence. “It matters not a whit where
the weight or preponderance of the evidence lies under a material evidence review.”
Hamilton v. Holderman, No. M2015-02302-COA-R3-CV, 2016 WL 6311798, at *3
(Tenn. Ct. App. Oct. 27, 2016) (quoting Hohenberg Bros. Co. v. Mo. Pac. R.R. Co., 586
S.W.2d 117, 119-20 (Tenn. Ct. App. 1979)). In determining whether there is material
evidence to support the verdict, the appellate court is required to: (1) take the strongest
legitimate view of all the evidence in favor of the verdict, (2) assume the truth of all that
tends to support it, allowing all reasonable inferences to sustain the verdict, and (3)
disregard all countervailing evidence. Barkes v. River Park Hosp., Inc., 328 S.W.3d
829, 833 (Tenn. 2010); Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704
(Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5
(Tenn. 1978)). If there is any material evidence to support the verdict, it must be
affirmed; if it were otherwise, the parties would be deprived of their constitutional right
to trial by jury. Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 558 (Tenn. 2013)
(quoting Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009)).

                                        IV. Analysis

     I.        Mr. Brock’s membership interest in McNeal Properties, LLC

        Appellants first argue that there was no material evidence to support the jury’s
finding that Mr. Brock was entitled to payment for his membership interest in McNeal.
The Operating Agreement for McNeal Properties, LLC, which was entered into evidence,
states, in relevant part, that:

          (b) In the event of a contribution default, the Company shall be deemed to
          have advanced all or any portion of the contribution required of the
          Defaulting Member as a loan to the Defaulting Member. Such loan shall
          bear interest on the unpaid balance at the rate of ten percent (10%) per
          annum and the total principal and interest on such loan shall constitute a
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       “Default Loan.” Such Default Loan shall not be deemed to have cured
       the default of the Defaulting Member but for Company accounting
       purposes shall be deemed to be a Capital Contribution by the Defaulting
       Member and shall accordingly be credited to his Capital Account as such.

                                              ***

       (e) If, at any time, the unpaid amount of all Default Loans of a Defaulting
       member shall total at least Twenty-Five Thousand Dollars ($25,000.00) or
       if a Defaulting Member has failed to make any required payments for a
       period of at least three (3) years, then the Company shall have the option
       to purchase the Interest of the Defaulting Member at a purchase price
       equal to the balance of the Capital Account of the Defaulting Member
       with payment offset by any amount necessary to satisfy the unpaid
       principal and interest of all Default Loans.

(Emphases added). The 2011 tax return for McNeal Properties, LLC, which was also
introduced into evidence, shows that Mr. Brock had $43,866 in his capital account at the
end of tax year 2011. The 2012 tax return for McNeal Properties shows that the capital
accounts of the partners increased from $87,730 at the beginning of the tax year to
$112,530 at the end of the tax year. Although Appellants’ argument highlights Mr.
Brock’s July 2012 default, in the amount of $259,000, it ignores certain provisions in the
operating agreement. The plain language of the operating agreement states that the
default loan “shall be deemed to be a capital contribution by the defaulting member and
shall accordingly be credited to his capital account as such.” The operating agreement
and the tax returns for McNeal Properties provide material evidence to support the jury’s
award. The jury’s award of $45,588, which is only a slight increase from the amount in
Mr. Brock’s 2011 capital account, and well below the increases attributed to the 2012
capital accounts of the other partners, is within the range of reasonableness. Therefore,
we affirm the jury’s verdict awarding Mr. Brock $45,588 as payment for his ownership
interest in McNeal Properties, LLC.

                                 II.     The Peters Lease

        With regard to the Peters Lease, Appellants argue that there was no material
evidence to support the jury’s finding that McNeal was obligated to indemnify Mr. Brock
on the Peters’ judgment. Additionally, Appellants argue that there was no material
evidence to support the jury’s finding that Dr. Stratienkos and his wife were individually
liable for the Peters’ judgment. A series of three emails between Mr. Brock and Mrs.
Stratienko dated April 23, 2007 were admitted at trial. The emails show that Dr.
Stratienko was open to the idea of leasing the lot across the street, but was more
interested in purchasing the property. Mr. Brock responded that the property was not for
sale, but that he could obtain a right of first refusal to purchase the property in a lease. A
                                              -6-
few minutes later, Mrs. Stratienko replied, “Alex said to go ahead with the across the
street property lease.” Mr. Brock testified that the lease was a 15-year lease, beginning
on the first day of May 2007. Mr. Brock further testified that he had a meeting with the
Stratienkos, during which he “reviewed the terms” of the lease with them “before he
committed to it on behalf of the company.” Furthermore, the fifteen year term of the
Peters Lease corresponded with the three five year terms delineated in the commercial
lease between McNeal and CVA, in which CVA could accrue and increase an ownership
interest in McNeal by continuing its tenancy in the building.

        Although the testimony of the Stratienkos contradicted that of Mr. Brock, when
the resolution of the issues in a case depends upon the truthfulness of witnesses, the fact-
finder, who has the opportunity to observe the witnesses in their manner and demeanor
while testifying, is in a far better position than this Court to decide those issues. Mach.
Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643 (Tenn. Ct.
App. 2002). “The weight, faith, and credit to be given to any witness's testimony lies in
the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.” Manning v. Manning, 474 S.W.3d 252, 262 (Tenn. Ct.
App. 2015).

       Mr. Brock further argues that the Stratienkos were individually liable for the
Peters Lease under the theory of promissory estoppel. Tennessee’s law on promissory
estoppel is stated as follows:

       When one man by his promise induces another to change his situation,
       repudiation of the promise would amount to a fraud. Where (1) one makes
       a promise (2) which the promisor should reasonably expect to induce action
       or forbearance of a definite and substantial character on the part of the
       promisee, and (3) where such promise does in fact induce such action or
       forbearance, it is binding (4) if injustice can be avoided only by
       enforcement of the promise.


Stones River Utils., Inc. v. Metro. Gov't, 981 S.W.2d 175, 177 (Tenn. Ct. App. 1998);
Chavez v. Broadway Elec. Serv. Corp., 245 S.W.3d 398, 404-05 (Tenn. Ct. App. 2007);
Barnes & Robinson Co. v. OneSource Facility Services, Inc., 195 S.W.3d 637, 645
(Tenn. Ct. App. 2006); Calabro v. Calabro, 15 S.W.3d 873, 878 (Tenn. Ct. App. 1999).
Promissory estoppel is an equitable doctrine, and its limits are defined by equity and
reason. Chavez, 245 S.W.3d at 404; Alden v. Presley, 637 S.W.2d 862, 864 (Tenn.
1982); Calabro, 15 S.W.3d at 879. A claim of promissory estoppel is not dependent
upon the existence of an express contract between the parties. Chavez, 245 S.W.3d at
405; Wilson v. Price, 195 S.W.3d 661, 670 (Tenn. Ct. App. 2005); EnGenius
Entertainment, Inc. v. Herenton, 971 S.W.2d 12, 19 (Tenn. Ct. App. 1997).

                                           -7-
       Here, the evidence shows that Mrs. Stratienko sent an email to Mr. Brock (after
she conferred with Dr. Stratienko), instructing Mr. Brock to enter into a lease on the
property across the street for the benefit of McNeal. The emails leave no doubt that the
Stratienkos made statements about the lease for the purpose of inducing Mr. Brock to
enter into the Peters Lease. These emails and Mr. Brock’s testimony provide material
evidence on which a reasonable jury could conclude that McNeal was obligated to
indemnify Mr. Brock on the Peters’ judgment. The same material evidence that
supported the jury’s finding with regard to the liability of McNeal Properties, LLC to the
Peters lease supports the jury’s finding that the Stratienkos are also individually liable for
the Peters lease under the theory of promissory estoppel.

                                       V. Conclusion

       Because we conclude that the jury’s verdict is supported by material evidence, we
affirm the trial court’s judgment on the jury verdict. The case is remanded for such
further proceedings as may be necessary and are consistent with this opinion. Costs of
the appeal are assessed against the Appellants, Alexander Stratienko, McNeal Properties,
LLC, Cardiac and Vascular Associates, P.C., and their surety, for all of which execution
may issue if necessary.


                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




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