IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00308-COA GECKO OUTDOOR PRODUCTS CORPORATION, CHRISTOPHER N. GARDNER AND MAINSTREAM FAB INC. APPELLANTS

v. CASABLANCA CONSTRUCTION INC. APPELLEE DATE OF JUDGMENT: 01/30/2017 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: JEFFREY BRADEN ARNOLD ATTORNEYS FOR APPELLEE: CAREY R. VARNADO ROBIN E. BLACKLEDGE BLAIR NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 06/26/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. LEE, C.J., FOR THE COURT: ¶1. This case involved a subcontract between a c ontractor, Casablanca Construction Inc., and a subcontractor, Panhandle Metal Fabrication Inc. The contractor sued Gecko Outdoor Products Corp. and Mainstream Fab I nc. as successors-in-interest t o Panhandle as well as Christop h e r G a r dner, individually

. Gardner was the owner and/or o perator o f all three

com panies. The trial c ourt determ ined that t he c om pany rem ained the sam e regardless of the

nam e c hanges; 1 thus, the m ost recent iteration of the c o m pany (Mainstream Fab) was liable

1 T h e n am e s an d d ates o f in co rp o ratio n o f t h e d if f e ren t co m p an ies i n clu d e P an h an d le (M ay 4 , 2 0 0 6 ); M ain stream F ab ricatio n In c. (Ju n e 8 , 2 0 1 2 ) ; G eck o O u t d o o r P ro d u cts C o rp .to C asablanca, as a s uccessor c orporation, f or breach of contract. Additionally , the trial court pierced the corporate veil a n d f o u n d G a rdner individually liable. T he trial court awarded Casablanca $393,954.58 in dam ages.

FACTS AND PROCEDURAL HISTORY ¶2. In 2012, Casablanca was h ired as t h e g e n e r a l contractor on the R odenberg Avenue Beach Com f

ort Station Project in Biloxi, Mississippi. The anticipated com pletion date was August 2013. On April 27, 2012, Casablanca e ntered i n t o a subcontract with Panhandle. 2
The contract was s igned by T abby W aters as president o f Pan h a n dle and witnessed by Gardner. According to the te r ms of the subcontract, Casablanca would pay Panhandle $122,144.12 f

or the f abrication and installation of m etal handrails. T he subcontract included

a tim e-is-of

-the-essence requirem ent a nd a liquidated-dam ages clause stating that Panhandle would have to reim

b urse Casablanca f

or any dam ages assessed by the project-owner in the event of delay s or dif

f iculties caused by

Panhandle. ¶3. Tom Saucier, president of C a s a b l a n c a , t e s t i f i e d t h at h e received an em ail f rom Gardner that Panhandle’s nam e had been c h a n ged t o M ainstream Fabrication Inc. (MFI), 3

(M ay 1 , 2 0 1 3 ); a n d M ain stream F ab In c. (M a y 2 7 , 2 0 1 4 ). C asab lan ca d i d n o t su e M ain stream

F ab ricatio n In c.

2 P an h an d le w a s a F l o r i d a co rp o ratio n , in itially o w n ed b y G a r d n er an d h is w if e, T a b b y Waters. G a rd n er l ater tran sf erred o w n e r sh ip to Waters f o r b etter ch an ces at o b tain i n g g o v ern m en t co n tracts. G ard n er rem ain ed v i c e p r e s id en t an d reg istered a g en t u n til P an h an d le w as v o lu n t a r i l y d i sso lv ed o n M arch 8 , 2 0 1 3

. G ard n e r ad m itted ly d isso lv ed P an h an d le to av o id a j u d g m en t in L o u i sian a.

3 M F I w as in co rp o rated in F l o rid a. Wat e rs w as listed as p resid en t an d G ard n er as v ice p r esid en t

. 2but that all other aspects rem ained the sam e . 4 I n October 2012, G ardner sent s hop drawings

of the h andrails to Saucier. The nam e on the renderings said, “MFI, Mainstream Fabrication Inc.” The address listed, 4007 North Pace Blvd., was the sam e address as Panhandle. ¶4. In A pril 2 013, Saucier, the project owner, and t he project’s architect m et with Gardner

to d iscuss the delay in m anuf a cturing the handrails. A l etter f rom the architect to Saucier stated that the “m eeting w as a rranged by Casablanca as a last r e s o r t ef f ort in m aintaining their contract with [ MFI].” S hortly thereaf ter, Saucie r s e n t an e m ail to W aters at MFI inquiring as to the progress o n the handrails. W aters responded that M F I was having
f inancial d if

f iculty and requested C asablanca pay f or the m aterials. W aters f

urther stated that Gardner “will be the one to coordinate with.” ¶5. The record contains copies of em ails—dated M ay 2, 2013 and June 3 , 2 0 1 3

— s e n t between Gardner and Saucier regarding the handrails. G ardner signed these em ails as vice president of MFI. Saucie r t e s t i f i ed t hat he then had another m eeting with Gardner, who inf orm ed him t hat Gecko would be m anuf acturing and installing t he handrails. Gardner told Saucier t o m ake the checks pay able to Gecko. During the s u m m er of 2013, Saucier testif ied that Casablanca paid Gecko approxim a tely $74,500 5 to m anuf

acture the handrails. ¶6. Ultim ately , Gecko f ailed t o produce satisf

a ctory handrails. C asablan c a h a d t o p a y another com

pany to m anuf

acture and install the handrails. Due to the delay s, Casablanca had to pay l iquidated dam ages of $197,865.

4 T h is em ail w as n o t p ro d u ced at trial.

5 T h e ch eck s ad m itted in to ev id en ce to taled $ 9 0 ,0 0 0

. 3¶7. Casablanca f iled a breach-of

-contract action a gainst Gecko as a successor-in-interest

to Panhandle. Casablanca later am ended i ts com plaint, adding Gardner a nd Mainstream Fab 6
as def endants. ¶8. Af ter a bench trial, the trial court r uled i n f a v o r o f C a s a b l a n c a , a w a r d ing it $393,954.58 in dam ages. The trial court noted t hat t he j udgm ent was against Mainstream Fab as well as Gardner, individually

. ¶9. Gardner, Gecko, a nd Mainstream Fab n ow appeal, asserting the f ollowing issues: (1)
W a ters and MFI were n ece s s a r y parties to the action; (2) Mainstream Fab w as not the

successor corporation to Panhandle; (3) the trial court erred i n piercing t he c orporate veil and
f inding Gardner personally liable; and (4) the agreem ent b etween Gecko and Casablanca was invalid under the statute of f rauds.
STANDARD OF REVIEW ¶10. “In bench trials, a [ trial c ourt’s] f indings are subject to the sam e standard of review

as those of a chancellor.” Transocean Enter. Inc. v. Ingalls Shipbuilding Inc. , 33 So. 3d 459,
462 (¶7) (Miss. 2010) (quoting Univ. of Miss. M e d. C t r. v. Pounders , 970 So. 2d 141, 145 (¶11) (Miss. 2007)). “[ W ]hen a trial judge s i ts without a j ury , this Court will not disturb his
f actual determ inations where there is substantial evidenc e i n the r ecord to support those
f indings.” Id. (quoting Ezell v. W illiams , 724 So. 2d 396, 397 (¶4) (Miss. 1998)).
DISCUSSION

6 G ard n er f

o rm ed M ain st r e a m F ab , p u rp o rted l y to k eep assets f ro m W a t ers d u rin g th eir d i v o rce p ro c eed in g s. T o b e clear, M ain stream F ab is a sep a rate en tity f ro m M F I. A c co rd in g to th e F lo rid a S ecretary o f S tate’s w eb site, M a in stream F ab w a s ad m in istrativ ely d isso lv ed o n S ep tem

b er 2 2 , 2 0 1 7

. 4I. Necessary Parties

¶11. Gardner argues that the trial court e r r e d i n d e n y i n g h i s m otion t o dism iss under Mississippi Rule of Civil Procedure 12(b)(7) f or f ail u r e t o j o i n W aters as a party under Mississippi Rule of Civil Procedure 19(a). 7 Rule 19(a) provides that a person who is subject to the jurisdiction of

the court shall be joined as a party in the action if

: ( 1 ) in his absence com

plete relief cannot b e a ccorded am ong those alre a d y parties, or (2) h e c l a i ms a n interest relating to the subject m a t ter of the action and i s so situated that the disposition in h i s a b s e n c e may (i)

. . . im pede his ability to protect that interest or (ii) leave an y o f t he persons already p arties subject to a substantial risk o f incurring double, m ultiple, o r otherwise inconsistent obligations by

reason of his claim ed interest. ¶12. Gardner c laim s that W aters had a direct a nd substantial interest in the action, m ainly b e c a u s e she signed the contract with Casablanca on behalf of Panhandle. G ardne r a l s o claim s that without W aters “val uable questions go unanswered.” But, Gardner f ailed to specif y w hat questions were u n answered, either duri n g t rial o r in his brief

. 8 Casablanca
argues that t h e c a u s e of action giving rise to the lawsuit did not occur until af ter W aters’s involvem e nt with the project ceased. The record is unclear as t o w hen W aters’s involvem ent with t h e p r o

j ect ceased—presum ably when Gecko was f orm e d because W a t ers was never associated with Gecko. W e agree with Casablanca that by the tim e of the breach, W aters was
not involved; thus, it w as not error f or the trial court to d eny Gardner’s m o tion to dism iss f or

7 O u r stan d ard o f rev iew reg ard in g R u l e 1 2 (b ) m o tio n s to d i sm iss is d e n o v o . S ca g g s v. G P C H -G P In c. , 9 3 1 S o . 2 d 1 2 7 4 , 1 2 7 5 (¶6 ) (M iss. 2 0 0 6 ).

8 Waters w as n o t called as a w itn ess d u rin g trial. 5f

ailure to join W aters.
II. Successor Corporation ¶13. Gardner a rgues that Mainstream Fab was not a successor to P anhandle; t hus, the trial

court erred in holding Mainstream Fab liable. “The general rule s tates t hat a corporation which a cquires the a ssets, but not the stock of another corporation, is not obligated f or the liabilities of

the acquired corporation.” P aradise Corp. v. Amerihost D ev. Inc. , 848 So. 2d 177, 179 (¶6) (Miss. 2 003). The f our exceptions are “ where: (1) the s uccessor e x pressly or im p liedly agrees to a ssum e the l iabilities of the predecessor; (2) t h e t ransaction m ay be considered a de f

acto m erger; (3) the successor m ay b e c o nsidered a ‘m ere continuation’ of the predecessor; or (4) the t ransaction was f raudulent.” Id. Gardner argues that none of these exceptions apply

. The trial court d e t e r mi ned that Mainstream Fab a nd Gecko were m ere continuations of

Panhandle and MFI. ¶14. “The traditional rule states that a corporation is not t o be c o nsidered a c o n t i n u ation of a predecessor unless, af ter the transf

er of assets, only one corporation rem ains, and there is an i dentity of s tock, shareholders, and directors between the two corporations.” Id. at 180 (¶12). M ere continuation can also occur w hen a continuity of enterprise exists. In addition to the traditional rule, the continuity -of -enterprise f

actors include: (1) retention o f the s am e em p l o y e e s ; (2) retention of the s am e supervisory personnel; (3) retention o f the sam e production f acilities in the sam e phy sical location; (4) production of the sam e product; ( 5) r etention of the sam e nam e; (6) continuity of assets; (7) continuity of g eneral business operations; and (8) whether the successor holds i t s e l f out as the continuation of the previous enterprise. Id. at (¶14).

6¶15. The record contains evidence of several of

these f actors. Casablanca was inf orm ed that Panhandle’s nam e had c hanged b ut all other a s p e cts of the business relationship

rem ained the sam e . Subsequently , Casablanca, the project owner, and the project architect expected MFI as Panhandle’s successor to perf orm its obligations under the subcontract.
W h en MFI began having f inancial d i f

f i c u l t y , Saucier stated that he w as i nf orm ed Gecko

wou l d t h e n be m a nuf

acturing and installing the s am e product. Throughout this process, Gardner rem ained the point person on the project. ¶16. Gardner argues t h a t G e c k o a nd Mainstream F ab were c reated af ter Panhandle had already d i s s o lved a nd t he shareholders and directors of t he com panies were not the sam e. However, Gardner f

orm ed MFI prior to Panhandle’s dissolution, and MFI held itself out as the continuation of

Panhandle. Likewise, Gecko then held itself out as the continuation of
MFI. Gardner adm ittedly created MFI in order to avoid P anhandle’s legal obligations on another p roject, and he created Mainstream Fab to protect his assets during his divorce f rom W a ters. Because of Gardner’s actions, the trial c ourt noted that the f raudulent-transaction exception also applied. ¶17. Upon review of the r e c ord, we f ind substantial evidence to support the trial court’s decision. This issue is without m erit.
III. Corporate Veil ¶18. Gardner argues that the trial court e rred in p iercing the corporate veil and f inding him individually

liable. Under Gray v
. Edgewater L anding Inc. , 541 So. 2d 1044, 1047 (Miss. 1989), f or a court to disregard t he corporate entit y a n d j u stif y shareholder liability , the

7com

plaining party m

u st show c redible e vidence of t he f ollowing: “(a) so m e f

rustration of

c o ntractual expectations regarding the party t o whom he looked f or perf orm ance; ( b ) t h e f lagrant disregard of corporate f orm alities by t he d ef

endant corpor a t i o n a n d its principals; [ and] (c) a dem onstration of f r a ud or other equivalent m isf easance on the part of the corporate shareholder.” O ur case law disf a vors piercing the corporate veil except in clearly extraordinary s ituations, and the “ distinct corporate identity will b e m aintained unless to do

so would subvert the ends of justice.” Johnson & Higgins v. Comm’r of Ins. of Miss. , 321
So. 2d 281, 284 (Miss. 1975). W e “recognize that t he corporate veil will not be pierced, in either contract or tort claim s, except where there is som e a buse of the corporate f

o rm itself .” Penn Nat’l Gaming Inc. v. Ratliff , 954 So. 2d 427, 432 (¶10) (Miss. 2007). ¶19. The f

irst prong addresses who Casablanca expected to be responsible f or the contract. According to Saucier’s af f idavit, h e looked to Gardner “individually to p erf orm the term s of the contract.” Saucier f

urther stated that when the nam e of Panhandle changed t o MFI and then to G ecko, “Gardner becam e an even m ore prom inent f igure in t he project. He was the constant person upon whom I relied f or perf orm ing the term s of the c ontract

. . . . He was

on site perf

orm ing the w ork and continued to be the only person with whom I dealt.” Saucier stated that he d i d not know of G e c k o ’ s existence until Gardner asked Saucier to m ake the checks pay able to Gecko. Gecko’s nam e w as not m entioned until p ay m ent was due. Gray

states that “[

j]ust as the corporation’s negligent perf orm ance o f contractual d

uties does not justif y the disregard of t he corporate entity , neither does t he f act that the p r i ncipal shareholder oversees the day -to-day operation.” Gray , 541 So. 2d at 1 047. However, in this

8instance, we f ind credible evidence exists to support this prong. ¶20. The second prong a ddresses whether Gardner f lagrantly disr e g a r d e d t h e corporate f orm alities. During discovery , Casablanca requested copies of Gardner’s corporate records, including the articles of i ncorporation; notice s of all shareholder m eetings; m inutes of shareholder m eetings; n otices of all director’s m eetings; m i nutes of all d irector’s m eetings; all d ocum ents signed by directors in lieu of a f orm al notice o f a director’s m eeting; all docum ents signed by shareholders in lieu of a f orm al notice of shareholder m eetings; by laws and all am endm ents to b y laws and resolutions of the Board of Directors adopting the by laws; correspondence between Gardner and any of f icers or directors of the corporation pertaining

to the corporate business; docum ents pertaining to the cap i t a l i zation of the corporation; a stock transf

er ledger; and the corporate record book. Other than the articles of incorporation
f or Gecko and Mainstream Fab and the 2014 f ederal tax return f

or Gecko, Gardner f

ailed to produce any of the docum ents r equested. Gardner’s response was s im ply that he did not have these docum ents. W e f

ind credible evidence to support this prong. ¶21. The f

inal prong addresses f

raud or o ther m isf

easance b y Gardner. This C ourt has held that the f raud elem ent r equired to pierce t he c orporate v eil was not present where p laintif f “presented no evidence that [ the def endant], f rom the b eginning, was i ntent o n o btaining [ the plaintif f ’s] m oney f

or his o wn personal use with no i ntention of p erf orm ing o n the contract and that he used a shel l c o r p o r ation t o s hield h im self f rom personal liability o n t he day of reckoni n g that was inevitably to com e.” Richardson v. Jenkins Builders Inc. , 737 So. 2d 1030, 1032 (¶10) (Miss. Ct. App. 1999). W e note that non-p e r f o r ma n c e o f a contractual

9obligation does not justif y d isregarding the c orporate en t i t y . Gray , 541 So. 2d at 1047. Casablanca produced evidence that Gardner adm ittedly knew h e c o u l d not com plete perf orm an c e u n d e r t he contract. During trial, Gardner a dm itted that he did not have a Mississippi contractor’s license, a f act that he knew would prohibit him f rom installing the railings. Af

ter receiving the p a y

me n t s f r om C a sablanca, Gardner paid him self and his

em ploy e es, but f

ailed to deliver the product. Once Saucier rea l i z e d Gardner had no intent

to perf orm under the contract, he hired another m e tal f abricator to m anuf

acture a nd install the r ailings. Although p i e r c i n g t he corporate veil is disf avored except in clearly

ext r a ordinary situations, in this instance, we f ind substantial evidence to support the trial court’s f indings.
IV. Statute of Frauds ¶22. Gardner claim s the agreem ent between G e cko a n d C asablanca was n ot enf orceable based upon the s tatute of f rauds. See Mississippi Code Annot a t e d s e c t i o n 75-2-201 (Rev. 2016). Gardner’s argum ent is based o n t h e p rem ise that M ainstream F ab and G ecko were
not successor c orporations. However, we have f o und Gardner’s argum en t s r e g a r d ing that issue to be without m e rit. Gardner was perf orm ing under the original c ontract, a f a ct that he
exp l i c itly discussed with S aucier. Thus, we d o not f i nd this c ase f

alls under the statute of
f rauds. ¶23. AFFIRMED. IRVING, P.J., BARNES, CARLTON, F AIR AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS I N PART A N D I N T H E RESULT WITHOUT SEPAR A T E W R ITTEN OPINION. GREENLEE, J., CONCURS IN P ART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J.,

1 0CONCURS IN PART AND DISSENTS I N PART WITH SEPARATE WRITTEN

OPINION, JOINED BY GRIFFIS, P.J., AND GREENLEE, J. TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART: ¶24. Because I f

ind the trial court erred by piercing the corporate v eil and holding Gardner individually

liable, I concur in part and dissent in part f rom the m ajority ’ s opinion. ¶25. “Mississippi has a strong public policy f avor i n g maintaining corporate e ntities and avoiding attem

pts to pierce the corporat e v e i l

. . . .” Rest. of Hattiesburg LLC v. Hotel &
Rest. Supply Inc. , 84 So. 3d 32, 39 (¶23) (Miss. Ct. App. 2012) (internal quotation m ark

om itted). As e arly as 1933, the M ississippi Suprem e Court stated that “[ a] corporation is an entity separate and d istinct f rom its stockholders.” Ill. C ent. R .R. v. Miss. C

otton Seed Prods.
Co. , 166 Miss. 579, 579, 148 So. 371, 372 (1933). Our courts have repeatedly recognized that piercing the corporate v e i l should be reserved “f or f actual circum s tances which are clearly extraordinary

— where to do otherwise would ‘ subvert the ends of justice.’” Gray v. Edgewater Landing Inc. , 541 So. 2d 1044, 1046 (Miss. 1989) (quoting Johnson & Higgins of Miss. Inc. v. Comm’r of

Ins. , 321 So. 2d 281, 284 ( Miss. 1975)). B ecause it is m y opinion that t he extraordinary f

actual circum stances required to p ierce the corporate veil do not exist in this case, I m

ust respectf

ully dissent f

rom the portion o f the m ajority ’s opinion af f irm ing the trial court’s f

inding that Gardner was individually liable f or breach of

contract. 9

9 In its f in al j u d g m en t, th e trial co u rt f o u n d th at “ G a rd n er sh o u ld b e h eld p erso n ally liab le f o r b reach o f th e said [ c] o n tract p u rsu an t t o j u d icial p reced en t [ th at] allo w s th e [ c] o u rt to d isreg a rd attem

p t s t o s h ield an in d iv id u al f r o m in d iv id u al liab ility b y u s in g a c o rp o rate f o rm .” A l th o u g h circu m stan ces a rise w h ere th e co u r ts can an d s h o u ld p ierce th e c o rp o rate v eil, stan d in g alo n e, th e trial c o u rt’s reaso n in g p resen ts an in co rrect statem en t o f M ississip p i caselaw

. T h e p r im ary p u rp o se o f th e co rp o rate f o rm , p articu larly f

o r sm all b u sin e sses, is to p ro tect th e sh areh o ld ers/o w n ers f ro m in d i v id u a l l iab ility

. S e e G r a y , 5 4 1 S o . 2 d at 1 0 4 7

. 1 1¶26. G a r d ner incorporated P anhandle in Florida on May 4, 2 006. In 2012, Pan h a n d l e

subm itted a bid to Casablanca f or t he f abrication of m etal handrails f or a project by the Coast Transit Authority in Biloxi, M ississippi. 10 On April 2 7 , 2 0 1 2 , P anhandle e ntered into a subcontract agreem e nt with C asablanca, whereby Panhandle was to “f urnish all m a terial and labor f or all alum inum handrail a n d r e lated work[ .]” In exchange f or those services, Casablanca agreed to pay Panhandle $122,144.12. Saucier, Casab l a n c a ’ s p r e s i d e n t , e x e c uted the agreem ent o n Casablanca’s behalf , a nd W aters, Panhandle’s president/director, executed the agreem ent on Panhandle’s behalf

. 11 ¶27. In J une 2012, W aters incorporated MFI in Florida and becam e MFI’s president. 12 In O c t o ber 2012, C asablanca received shop drawings of the handrails with MFI’s name a n d logo on the drawings. Over the next several m o nths, MFI s ent Casablanca m ultiple sets of handrails that the project architect, the f irm of Eley Guild H ardy (EGH), repeatedly rejected. ¶28. EGH’s records indicated that Casablanca a r ranged an April 4, 2013 site m eeting with
MFI “as a last[ -]resort ef f ort” to m aintain the contract with M FI. Conce r n e d w i t h the
progress o f satisf

a ctory handrails, Saucier then em a iled W aters about their status on April

F u rth erm o re, I f

in d C a sab lan c a f

ailed to p r e s e n t t h e n e cessary cred ib le e v id e n ce to m eet ev ery p r o n g o f th e test f

o r p iercin g th e co r

p o r ate v eil.

10 C asab l an ca h ad b een aw ard ed th e co n tract w ith th e C o ast T ran sit A u th o rity f o r th e co n stru ctio n o f

C o m f o rt S tatio n o n th e b each in B i lo x i.

11 Waters w as G ard n e r’s w if e an d w as P an h an d le’s so le sh a reh o l d er at th e tim e sh e ex ecu ted th e co n t ract.

1 2 A c c o rd in g to G ard n er, Waters alo n e m ad e th e d ecisio n to cease o p eratin g as P an h an d le an d to start o p eratin g as M F I. G a rd n er testif ied h e d id n o t su p p o rt th e d ecisio n . O n M arch 1 8 , 2 0 1 3 , Waters d isso lv ed P an h an d le. 1 223, 2 013. W a ters responded the f ollowing day f

rom an MFI e ma i l a c c o u nt and advised Saucier to coordinate with Gardner when t he project was acceptable to f ield m easure. W aters also advised Saucier that MFI was having f inancial troubles and that Casablanca would have

to p ay f o r any f urther m aterials needed to f a bricate t he handrails. On J une 3, 2013, Gardner

em ailed Saucier and advised that his d raf ter w ould correspond wit h S a u c i e r about “f ield dem s” n eeded to com

plete the drawings. The e m ail w as digitally signed a s f o llows: “Chris Gardner, Vice President, Mainstream Fabrication, Inc.” ¶29. Needing the handrails com p leted, S a ucier traveled to F lorida to m e et with W aters and Gardner. At the m eeting, W aters explained t o Saucier t hat she no longer w anted to do the

contract because of the dif f iculties MFI w as having i n m eeting EGH’s expectations f or the quality of the handrails. A t som e point during the m eeting, S aucier spoke t o G ardner alone and i mp l ored G ardner t o com p l ete the handrails. At that juncture, Gardner agreed to

com plete the h andrails through Gecko, a new com pany he had f

orm ed. 13 W hen asked about Casablanca’s approval f

or another contractor to com plete the handrails, Saucier testif ied as f ollows: “I obviously

gave consent whenever he [ (Gardner)] told m e he was going to [ do] the contract under Gecko and asked m e to pay Gecko f or it.” ¶30. From June 1 1 , 2 0 1 3 , t h r o u gh August 9, 2013, Casablanca m ade out six checks to Gecko that t otaled $75,400. Eventually , Gecko delivered the handrails, but once again, they
f ailed to m eet EGH’s requirem ents. Frustrated, Saucier returned to Florida and m et with Gardner a f

inal tim e. G ardner explained to Saucier that h is rollers h ad crushed the tubing

13 With t h e f

in an cial p ro b lem s f

acin g M F I a n d h is m arriag e to Waters su f f erin g , G a rd n er h ad in co rp o r ated G eck o w ith th e in ten t o f f ab ricatin g tree stan d s f

o r h u n ters. 1 3and that he did not possess the necessary rollers to m eet EGH’s requirem ents. Casablanca then retained another f

a bricator to com

plete the handrails. ¶31. In both tort and contract claim s, the corporate entity will not b e disregarded u nless the

com plaining party can dem o nstrate the f ollowing: “(1) s om e f

r ustratio n of expectations regarding the party to whom he looked f or perf orm ance; (2) t h e f

l a g r ant disregard of corporate f

orm alities by the def

endant corporation and its p rincipals; and (3) a dem onstration of f raud or other equivalent m isf easance o n t he p art of t he c o rporate shareholde r .” Penn Nat’l Gaming Inc. v
. Ratliff , 954 So. 2d 427, 431 (¶9) (Miss. 2007) ( citing Gray , 541 So. 2d

at 1 047)). The com

p l aining party m

ust establish e ach o f these f actors by c r edible e vidence.
Rosson v. McFarland , 9 62 So. 2d 1279, 1285 ( ¶23) ( Miss. 2007). W hile I am not c onvinced

a f lagrant disregard f

or corporate f

orm a lities o ccurred in this case that rises to the leve l
necessary to m eet the second prong, I acknowledge that som e corporate records appear to be lacking. Nevertheless, I f ind Casablanca presented no credible evidence as to the f irst and third f actors needed to pierce the corporate veil. ¶32. As to the f

irst prong, t he contract, on its f ace, places t he burden of perf orm ance on a corporation and not on an individual. See Richardson v. Jenkins Builders Inc. , 737 So. 2d 1030, 1032 (¶9) (Miss. Ct. App. 1999) (ref u sing to pierce the corpo r ate veil where the parties’ contract, on its f

ace, placed t he burden of p erf orm ance on a corporation r ather than

on an individual). No arguable basis exists f or concluding that Casablanca actually believed

or was justif

ied in believing that G ardner him self w as individually guaranteeing the
contract’s perf

orm a nce. EGH’s project r ecords i ndicated that e very one look e d t o M F I , rather

1 4than to Gardner i ndividually , to g uarantee perf orm ance. EGH’s notes stated that Casablanca arranged a n A p r i l 4, 2013 site m eeting with MFI “as a last[ -]resort e f f ort” to m aintain the

contract with MFI. I n addition, Saucier a dm itted that he l ater approved Ge c k o , and not Gardner individually , to c om ple te the handrails and that, thereaf ter, Casablanca m ade
pay m ents to Gecko rather than t o Gardner individually

. The handrail d rawings Casablanca received had MFI’s corporate logo and nam e on them , and all written correspondence was

sent on corporate letterhead that identif ied b oth W aters and Gardner as president and vice president, respectively

. “Just as the corporation’s n egligent perf or ma n c e o f contractual duties d oes not justif

y the disregard o f the corporate entity , neither does the f act that the principal s hareholder oversees the day -to-day o p e r a t i o n.” Gray , 541 So. 2d at 1047. The
f act that Gardner served as a point of contact f or C asablanca and oversaw the h andrails’
f abrication sim

ply is not enough to satisf

y the f irst prong. ¶33. As to the third f

actor, n o evidence establishes that Panhandle entered into the contract with G ardner intending either to convert Casablanca’s f unds f or his o wn personal use or to

never perf

orm under the c ontract. To the contr a r y , G a r d n e r a n d Saucier both agreed that Gecko would com

plete the handrails at a tim e when Gecko was under no o bligation to provide the handrails. As the m ajority r ecognizes, Gardner adm itted he knew he could not install the handrails in Mississippi because he w as not a licensed Mississippi c ontractor. The

m ajority points to Gardner’s adm ission as evid e n c e that he knew h e could not com plete perf orm ance of the contract. However, the m a jority f a ils t o recognize that, although Gardner him self m ay not have been able to insta l l t h e h a n drails, Panhandle could have easily

1 5subcontracted the installation to a licensed Mississippi contractor. Furtherm ore, at the t im e

Casablanca approved Gecko to com plete the project, Casablanca only sought to have Gecko deliver the handrails rather t han install them

. Contrary to any assertion of f raud, the record

c l early shows that Gecko, and even MFI, attem p ted on m

ultiple occasions to com p l e t e delivery o f the handrails. These actions theref ore do not rise to the l e v e l o f f r aud or other equivalent conduct. S

ee T rim v. Trim , 33 So. 3d 4 71, 478 (¶19) (Miss. 2 010) (discussing the elem ents of

an intentional or f

raudulent representation). ¶34. For these reasons I concur in part and dissent in part f rom the m ajority ’s opinion. GRIFFIS, P.J., AND GREENLEE, J., JOIN THIS OPINION.

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