COLE BRYAN HOWELL, III, ET AL. v. CHERYL RYERKERK, ET AL. (Tenn. Ct. App. April 30, 2010)
Cole Bryan Howell, III ("the Grandson"), is the son of Cole Bryan Howell, Jr. ("the Father"), who in turn is the son of Margaret Lyons Howell ("the Grandmother"). The Grandson inherited stock in Howell Nurseries, Inc. ("the Nursery") through the Grandmother's will, which left a block of stock to the Father for life and then to the Father's children.
After the Father's death, the Grandson filed this stockholder's derivative action against all persons who acted as directors of the Nursery and the Nursery itself ("the Defendants"), claiming, in essence, that the directors had sold away all of the corporate assets, leaving him with a rather hollow inheritance.
The trial court held that the Grandson did not have standing to challenge any transactions that preceded the Father's death because it was only after his death that the Grandson became the owner of the stock. The trial court ordered an accounting as to all monies handled after the Father's death, which the Defendants filed with the court. Over the Grandson's objections, the trial court, on the Defendants' motion, approved the accounting and dismissed the case in its entirety. The Grandson appeals. We vacate the judgment of dismissal and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/howellc_043010.pdf
Friday, April 30, 2010
Court reviews claim of misrepresentation in a case about a purchase of property
JIMMY E. HOLT ET AL. v. SHAWN R. WILMOTH (Tenn. Ct. App. April 30, 2010)
Shawn R. Wilmoth ("the Buyer") approached Jimmy E. Holt about buying a building Mr. Holt owned jointly with his wife Betty L. Holt (collectively "the Sellers"). The Sellers advised they were only willing to sell the building if they could also sell the inventory from their lamp business that was stored in the building. The Buyer agreed to purchase the building and the inventory. The purchase of the inventory was accomplished through a promissory note in the amount of $250,000. Subsequently, the Buyer paid $150,000 toward the note but refused to pay the balance of $100,000.
The Sellers filed suit to collect the balance owed on the note. In his answer and counterclaim, the Buyer alleged that Sellers represented the value of the goods to be $500,000, but that he only realized $65,000 through liquidation of the goods and that $65,000 was the true value of the inventory. The Buyer alleged that the figure he was given constituted an intentional misrepresentation and, when compared to the amount he recovered from the goods, amounted to a failure of consideration. The Buyer asked to recover damages that included the difference in the amount he paid on the note and the amount he realized out of the liquidation, that difference being $85,000.
After a bench trial, the trial court determined that there was no intentional misrepresentation and dismissed the counterclaim. Nevertheless, the trial court refused to award the Sellers a recovery on the unpaid balance of the note. The court stated that it was leaving the parties where it found them. The Sellers appeal, raising issues; the Buyer, by way of his own issue, challenges the trial court's refusal to award him damages. We reverse and remand the case to the trial court with instructions to enter a judgment in favor of the Sellers and consider their prayer for prejudgment interest.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holtj_043010.pdf
Shawn R. Wilmoth ("the Buyer") approached Jimmy E. Holt about buying a building Mr. Holt owned jointly with his wife Betty L. Holt (collectively "the Sellers"). The Sellers advised they were only willing to sell the building if they could also sell the inventory from their lamp business that was stored in the building. The Buyer agreed to purchase the building and the inventory. The purchase of the inventory was accomplished through a promissory note in the amount of $250,000. Subsequently, the Buyer paid $150,000 toward the note but refused to pay the balance of $100,000.
The Sellers filed suit to collect the balance owed on the note. In his answer and counterclaim, the Buyer alleged that Sellers represented the value of the goods to be $500,000, but that he only realized $65,000 through liquidation of the goods and that $65,000 was the true value of the inventory. The Buyer alleged that the figure he was given constituted an intentional misrepresentation and, when compared to the amount he recovered from the goods, amounted to a failure of consideration. The Buyer asked to recover damages that included the difference in the amount he paid on the note and the amount he realized out of the liquidation, that difference being $85,000.
After a bench trial, the trial court determined that there was no intentional misrepresentation and dismissed the counterclaim. Nevertheless, the trial court refused to award the Sellers a recovery on the unpaid balance of the note. The court stated that it was leaving the parties where it found them. The Sellers appeal, raising issues; the Buyer, by way of his own issue, challenges the trial court's refusal to award him damages. We reverse and remand the case to the trial court with instructions to enter a judgment in favor of the Sellers and consider their prayer for prejudgment interest.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holtj_043010.pdf
Monday, April 26, 2010
Court reviews whether a city's bidding process violates the TN Trade Practices Act
BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL. (Tenn. Ct. App. April 26, 2010)
In 2004, Baird Tree Company, Inc. ("Baird Tree") unsuccessfully bid on a tree trimming and removal project with the City of Oak Ridge ("Oak Ridge"). Baird Tree filed a lawsuit claiming, inter alia, that Oak Ridge's bidding process violated the Tennessee Trade Practices Act, Tenn. Code Ann. Section 47-25-101.
We affirmed the Trial Court's grant of summary judgment to the defendants because the contract at issue was a contract for services, not goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded that Baird Tree could not challenge the bidding process because it had failed to submit a valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933- COA-R3-CV, 2008 WL 2510581 (Tenn. Ct. App. June 24, 2008). When the same project came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak Ridge's bidding process. The Trial Court granted summary judgment to all defendants. We, again, conclude that Baird Tree does not have standing to challenge the bidding process because it submitted a fatally defective "bid" in the first place. The judgment of the Trial Court is, therefore, affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bairdtreeco_042610.pdf
In 2004, Baird Tree Company, Inc. ("Baird Tree") unsuccessfully bid on a tree trimming and removal project with the City of Oak Ridge ("Oak Ridge"). Baird Tree filed a lawsuit claiming, inter alia, that Oak Ridge's bidding process violated the Tennessee Trade Practices Act, Tenn. Code Ann. Section 47-25-101.
We affirmed the Trial Court's grant of summary judgment to the defendants because the contract at issue was a contract for services, not goods, and, therefore, the Tennessee Trade Practices Act did not apply. We also concluded that Baird Tree could not challenge the bidding process because it had failed to submit a valid bid in the first place. See Baird Tree Co., Inc. v. City of Oak Ridge, No. E2007-01933- COA-R3-CV, 2008 WL 2510581 (Tenn. Ct. App. June 24, 2008). When the same project came up for bid in 2007, Baird Tree again submitted a fatally defective bid. When it was not awarded the contract, Baird Tree filed the present lawsuit raising various challenges to Oak Ridge's bidding process. The Trial Court granted summary judgment to all defendants. We, again, conclude that Baird Tree does not have standing to challenge the bidding process because it submitted a fatally defective "bid" in the first place. The judgment of the Trial Court is, therefore, affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bairdtreeco_042610.pdf
Thursday, April 22, 2010
One-Fourth of Nonprofits Are to Lose Tax Breaks
Some nonprofits' tax breaks to end May 15
At midnight on May 15, an estimated one-fifth to one-quarter of some 1.6 million charities, trade associations and membership groups will lose their tax exemptions, thanks to a provision buried in the Pension Protection Act of 2006. An I.R.S spokeswoman said that while groups would lose their exemptions effective May 16, the I.R.S. would probably not send out notices until January to give nonprofits a chance to bring themselves into compliance with the law.
Learn more from The New York Times:
http://www.nytimes.com/2010/04/23/us/23exempt.html
At midnight on May 15, an estimated one-fifth to one-quarter of some 1.6 million charities, trade associations and membership groups will lose their tax exemptions, thanks to a provision buried in the Pension Protection Act of 2006. An I.R.S spokeswoman said that while groups would lose their exemptions effective May 16, the I.R.S. would probably not send out notices until January to give nonprofits a chance to bring themselves into compliance with the law.
Learn more from The New York Times:
http://www.nytimes.com/2010/04/23/us/23exempt.html
Tuesday, April 6, 2010
Court reviews decision to revoke Petitoner's license to operate a wrecker service
MARK WAYMAN d/b/a ABLE TOWING v. TRANSPORTATION LICENSING COMMISSION OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. April 6, 2010)
The Transportation Licensing Commission revoked Petitioner's license to operate a wrecker service. The chancery court upheld the revocation. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/waymanm_040610.pdf
The Transportation Licensing Commission revoked Petitioner's license to operate a wrecker service. The chancery court upheld the revocation. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/waymanm_040610.pdf
Subscribe to:
Posts (Atom)