REGIONS BANK v. BRIC CONSTRUCTORS, LLC, F/K/A BRIC CONTRACTORS, LLC, AND PATRICIA MCINTOSH (Tenn. Ct. App. December 14, 2011)
This is an action to collect a debt and to recover collateral. The defendant LLC obtained a line of credit from the plaintiff bank. The LLC borrowed against the line of credit to purchase certain property, and the property was pledged as collateral. Several months later, the line of credit was converted into a fixed amount loan over a longer term, and a new security agreement was executed pledging the same collateral. On the same day, the LLC obtained another line of credit secured by the LLC's accounts receivable. The next day, the LLC took an advance on the new line of credit. The LLC made monthly payments on both obligations for almost a year, and then it defaulted.
The plaintiff bank filed this lawsuit against the LLC and its principal to collect on the loans and to recover the collateral. The LLC contended that the principal of the LLC did not sign key documents, did not authorize advances, and did not authorize the pledge of the collateral. After a bench trial, the trial court held in favor of the bank based on, among other things, its finding that the principal of the LLC had ratified any allegedly unauthorized advances made under the lines of credit. The defendants now appeal. We reverse the finding of ratification as to one advance and remand for further findings; in all other respects, the decision of the trial court is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/regionsbank_121411.pdf
UPDATE (4/2012): The opinion filed in this case on December 13, 2011, is withdrawn. The court has refiled the opinion with changes on pages 32-34 under the subheading “Forged Signatures."
The corrected opinion is available at: https://www.tba.org/sites/default/files/regionsbank_CORR_033012.pdf
Wednesday, December 14, 2011
Tuesday, December 13, 2011
Court reviews an order compelling arbitration in a case involving a lease-purchase agreemente
DAVID WHITE v. EMPIRE EXPRESS, INC. AND EMPIRE TRANSPORTATION, INC. (Tenn. Ct. App. December 13, 2011)
The case involves a lease-purchase agreement. The plaintiff truck driver worked for the defendant hauling company. He entered into a lease-purchase agreement with the co-defendant leasing company, affiliated with the employer hauling company, to purchase the truck he drove in his employment. At the end of the lease, the leasing company refused to transfer title to the truck to the plaintiff. The plaintiff then filed this lawsuit against both defendant companies, alleging breach of contract, conversion, and violation of the Tennessee Consumer Protection Act. The defendants asserted the affirmative defenses of set-off and recoupment based on the plaintiff's employment agreement.
After a bench trial, the trial court held in favor of the plaintiff on all of his claims. However, based on an arbitration provision in the employment agreement, it granted the plaintiff's motion to dismiss and to compel arbitration of the defendants' affirmative defenses of set-off and recoupment. The defendants now appeal. In light of the trial court's order compelling arbitration, we dismiss the appeal and remand for entry of an order staying the proceedings pending the arbitration.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/whited_121311.pdf
The case involves a lease-purchase agreement. The plaintiff truck driver worked for the defendant hauling company. He entered into a lease-purchase agreement with the co-defendant leasing company, affiliated with the employer hauling company, to purchase the truck he drove in his employment. At the end of the lease, the leasing company refused to transfer title to the truck to the plaintiff. The plaintiff then filed this lawsuit against both defendant companies, alleging breach of contract, conversion, and violation of the Tennessee Consumer Protection Act. The defendants asserted the affirmative defenses of set-off and recoupment based on the plaintiff's employment agreement.
After a bench trial, the trial court held in favor of the plaintiff on all of his claims. However, based on an arbitration provision in the employment agreement, it granted the plaintiff's motion to dismiss and to compel arbitration of the defendants' affirmative defenses of set-off and recoupment. The defendants now appeal. In light of the trial court's order compelling arbitration, we dismiss the appeal and remand for entry of an order staying the proceedings pending the arbitration.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/whited_121311.pdf
Friday, December 9, 2011
Court reviews a motion to enforce the terms of a settlement for breaching a partnership agreement
KIMBERLIE LOIS EDMONSON v. TERRY LYNN WILSON (Tenn. Ct. App. December 9, 2011)
In this case, Kimberlie Lois Edmonson ("Ms. Edmonson") filed suit against Terry Lynn Wilson ("Mr. Wilson") for breach of an alleged partnership agreement. Prior to trial, the parties reached an agreement. Following the announcement of the agreement in court by counsel, Ms. Edmonson refused to honor the agreement. Mr. Wilson filed a motion to enforce the agreement, and the trial court denied the motion. The case proceeded to a bench trial, and the court held in favor of Ms. Edmonson. Mr. Wilson appeals. We hold that the court should have enforced the settlement agreement and reverse the decision of the court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/edmonsonl_120911.pdf
In this case, Kimberlie Lois Edmonson ("Ms. Edmonson") filed suit against Terry Lynn Wilson ("Mr. Wilson") for breach of an alleged partnership agreement. Prior to trial, the parties reached an agreement. Following the announcement of the agreement in court by counsel, Ms. Edmonson refused to honor the agreement. Mr. Wilson filed a motion to enforce the agreement, and the trial court denied the motion. The case proceeded to a bench trial, and the court held in favor of Ms. Edmonson. Mr. Wilson appeals. We hold that the court should have enforced the settlement agreement and reverse the decision of the court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/edmonsonl_120911.pdf
Monday, December 5, 2011
On Cyber Monday, Feds Shut Down 150 Web Sites
Federal authorities on Monday announced the seizure of 150 domain names for Web sites that featured alleged knock-offs of authentic jerseys, handbags, sports equipment and other items.
The results of the undercover operation "In Our Sites" top last year's crackdown, when investigators shut down 82 web sites.
In most cases, the person or people operating the commercial sites do not challenge the domain name seizure in court, Lanny Breuer, the assistant attorney general for the Justice Department’s criminal division, told reporters.
Read the full story at the Legal Times Blog.
The results of the undercover operation "In Our Sites" top last year's crackdown, when investigators shut down 82 web sites.
In most cases, the person or people operating the commercial sites do not challenge the domain name seizure in court, Lanny Breuer, the assistant attorney general for the Justice Department’s criminal division, told reporters.
Read the full story at the Legal Times Blog.
Saturday, November 19, 2011
Josh Flory: Tennessee looks to boost startups
Groupon may be the hot Internet company du jour, but it didn't spring from a traditional startup bastion like Silicon Valley or Boston.
The group-discount firm that began offering shares to the public on Friday is headquartered in Chicago, and serves as proof that startup success can happen far from the coasts. On Thursday, Tennessee officials unveiled a plan that aims to smooth the path for entrepreneurs who are looking to cultivate a big idea in the Volunteer State.
Gov. Bill Haslam and Economic and Community Development Commissioner Bill Hagerty announced that nine "entrepreneurial accelerators" will be established throughout the state, including one that will be led by the University of Tennessee's Anderson Center for Entrepreneurship and Innovation.
Lynn Youngs, executive director of the Anderson Center, said the ultimate goal is business and job creation and that a big part of the accelerator's mission will be to make the region aware of resources that already exist.
He said any applicant who comes through the door will be evaluated and steered toward their best path for success. The accelerator's bread and butter, though, will be working with companies that have strong growth potential and are nearly ready to make a pitch to investors.
Youngs said accelerators are best matched to "fast-flip opportunities," and cited web-based applications as an example of the type of opportunity that can be accelerated into the marketplace. But he also cited the strong investment in scientific research that has been made in East Tennessee. "We're not going to ignore that by any stretch of the imagination," he said.
The nine regional accelerators will each receive a $250,000 grant comprised of state and federal dollars, with the expectation that a local match of at least that much will be provided. The Knoxville accelerator effort includes partners such as Oak Ridge National Laboratory, Tech 20/20, the Oak Ridge Economic Partnership and the Knoxville Chamber.
Read the full story at the Knoxville News-Sentinel:
http://www.knoxnews.com/news/2011/nov/04/tennessee-looks-to-boost-startups/
The group-discount firm that began offering shares to the public on Friday is headquartered in Chicago, and serves as proof that startup success can happen far from the coasts. On Thursday, Tennessee officials unveiled a plan that aims to smooth the path for entrepreneurs who are looking to cultivate a big idea in the Volunteer State.
Gov. Bill Haslam and Economic and Community Development Commissioner Bill Hagerty announced that nine "entrepreneurial accelerators" will be established throughout the state, including one that will be led by the University of Tennessee's Anderson Center for Entrepreneurship and Innovation.
Lynn Youngs, executive director of the Anderson Center, said the ultimate goal is business and job creation and that a big part of the accelerator's mission will be to make the region aware of resources that already exist.
He said any applicant who comes through the door will be evaluated and steered toward their best path for success. The accelerator's bread and butter, though, will be working with companies that have strong growth potential and are nearly ready to make a pitch to investors.
Youngs said accelerators are best matched to "fast-flip opportunities," and cited web-based applications as an example of the type of opportunity that can be accelerated into the marketplace. But he also cited the strong investment in scientific research that has been made in East Tennessee. "We're not going to ignore that by any stretch of the imagination," he said.
The nine regional accelerators will each receive a $250,000 grant comprised of state and federal dollars, with the expectation that a local match of at least that much will be provided. The Knoxville accelerator effort includes partners such as Oak Ridge National Laboratory, Tech 20/20, the Oak Ridge Economic Partnership and the Knoxville Chamber.
Read the full story at the Knoxville News-Sentinel:
http://www.knoxnews.com/news/2011/nov/04/tennessee-looks-to-boost-startups/
Wednesday, November 16, 2011
Court reviews a zoning board's denial of an application for a proposed shopping center
411 PARTNERSHIP, v. KNOX COUNTY, TENNESSEE, et al. (Tenn. Ct. App. November 16, 2011)
The Knox County Board of Zoning Appeals denied plaintiff's use on review application for a proposed shopping center. Plaintiff appealed the decision to the Circuit Court by way of a Writ of Certiorari. The Trial Court upheld the Board of Zoning Appeals' decision and plaintiff appealed to this Court. We reverse the decision of the Circuit Court on the grounds the record before the Board of Zoning Appeals does not contain substantial material evidence to uphold the Board's ruling. We reverse the Judgment of the Trial Court and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/411partnership_111611.pdf
The Knox County Board of Zoning Appeals denied plaintiff's use on review application for a proposed shopping center. Plaintiff appealed the decision to the Circuit Court by way of a Writ of Certiorari. The Trial Court upheld the Board of Zoning Appeals' decision and plaintiff appealed to this Court. We reverse the decision of the Circuit Court on the grounds the record before the Board of Zoning Appeals does not contain substantial material evidence to uphold the Board's ruling. We reverse the Judgment of the Trial Court and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/411partnership_111611.pdf
Court reviews whether a distributor or a manufacturer bears the burden of paying the bottler's tax
DR. PEPPER PEPSI-COLA BOTTLING COMPANY OF DYERSBURG, LLC v. REAGAN FARR, COMMISSIONER OF TENNESSEE DEPARTMENT OF REVENUE (Tenn. Ct. App. November 16, 2011)
An in-state bottled soft drink manufacturer argues, pursuant to the bottler's tax statute, that the in-state distributor to which it sells may pay the bottler's tax on such sales and utilize its own franchise and excise tax credit. Absent this flexibility, the manufacturer contends, equal protection guarantees are offended. The trial court granted summary judgment to the Department of Revenue, finding that the manufacturer bore the tax burden and that it could not utilize the distributor's credit. We affirm.
Opinon available at:
http://www.tba2.org/tba_files/TCA/2011/drpepper_111611.pdf
An in-state bottled soft drink manufacturer argues, pursuant to the bottler's tax statute, that the in-state distributor to which it sells may pay the bottler's tax on such sales and utilize its own franchise and excise tax credit. Absent this flexibility, the manufacturer contends, equal protection guarantees are offended. The trial court granted summary judgment to the Department of Revenue, finding that the manufacturer bore the tax burden and that it could not utilize the distributor's credit. We affirm.
Opinon available at:
http://www.tba2.org/tba_files/TCA/2011/drpepper_111611.pdf
Tuesday, November 1, 2011
Court reviews whether an ordinance regulating the parking of tractor-trailers is a zoning or property maintenance regulation
TOWN OF SMYRNA, TENNESSEE v. PERRY BELL (Tenn. Ct. App. November 1, 2011)
The Town of Smyrna annexed land in 1991 that included a retail furniture store. The owner of that business kept a number of tractor-trailers parked on his property to store some of his inventory. Several years after the annexation, the town cited the owner in an attempt to enforce a municipal ordinance regulating the parking of tractor-trailers on commercially zoned property. The municipal court ruled against the owner. He appealed to the Circuit Court, which held that the ordinance in question was a zoning regulation and that the owner's use of the tractor- trailers was protected by the grandfathering provisions of Tenn. Code Ann. section 13-7-208(b)(1).
The town contends on appeal to this court that the ordinance is a property maintenance regulation rather than a zoning regulation and that the owner's use of the tractor-trailers is therefore not entitled to the protection of the grandfather clause. We agree, and we reverse the Circuit Court because the proof does not indicate that compliance with the ordinance would substantially interfere with the store owner's use of the property as a retail furniture business. Thus, it cannot be considered a zoning ordinance as applied to him under the standard established by our Supreme Court in Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004).
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/townofsmyrna_110111.pdf
The Town of Smyrna annexed land in 1991 that included a retail furniture store. The owner of that business kept a number of tractor-trailers parked on his property to store some of his inventory. Several years after the annexation, the town cited the owner in an attempt to enforce a municipal ordinance regulating the parking of tractor-trailers on commercially zoned property. The municipal court ruled against the owner. He appealed to the Circuit Court, which held that the ordinance in question was a zoning regulation and that the owner's use of the tractor- trailers was protected by the grandfathering provisions of Tenn. Code Ann. section 13-7-208(b)(1).
The town contends on appeal to this court that the ordinance is a property maintenance regulation rather than a zoning regulation and that the owner's use of the tractor-trailers is therefore not entitled to the protection of the grandfather clause. We agree, and we reverse the Circuit Court because the proof does not indicate that compliance with the ordinance would substantially interfere with the store owner's use of the property as a retail furniture business. Thus, it cannot be considered a zoning ordinance as applied to him under the standard established by our Supreme Court in Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004).
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/townofsmyrna_110111.pdf
Court reviews whether a quasi-contract existed between a website developer and an LLC
ICG LINK, INC. v. PHILIP STEEN ET AL. v. TN SPORTS, LLC v. ICG LINK, INC. (Tenn. Ct. App. November 1, 2011)
This is a dispute concerning payment for website development services. The plaintiff, a website development company, filed suit against the defendants, an LLC and its managing member in his individual capacity, alleging breach of contract and unjust enrichment.
The trial court found there was no express contract between the parties due to a lack of mutual assent. The court found there was a quasi-contract and that plaintiff was entitled to the reasonable value of its services, minus the costs incurred by defendants in attempting to repair the defects in the website. Last, the court held the individual defendant personally liable for the judgment.
We affirm the finding of a quasi-contract and the personal liability of the individual defendant; however, we modify the trial court's monetary award, finding the plaintiff is entitled to recover a judgment of $13,952.88. The court's holding is affirmed in all other respects.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/icglink_110111.pdf
This is a dispute concerning payment for website development services. The plaintiff, a website development company, filed suit against the defendants, an LLC and its managing member in his individual capacity, alleging breach of contract and unjust enrichment.
The trial court found there was no express contract between the parties due to a lack of mutual assent. The court found there was a quasi-contract and that plaintiff was entitled to the reasonable value of its services, minus the costs incurred by defendants in attempting to repair the defects in the website. Last, the court held the individual defendant personally liable for the judgment.
We affirm the finding of a quasi-contract and the personal liability of the individual defendant; however, we modify the trial court's monetary award, finding the plaintiff is entitled to recover a judgment of $13,952.88. The court's holding is affirmed in all other respects.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/icglink_110111.pdf
Wednesday, October 19, 2011
Court reviews whether the defendant breached a contract pertaining to a radio station's programming
DICK BROADCASTING CO., INC. OF TENNESSEE v. OAK RIDGE FM, INC., ET AL. (Tenn. Ct. App. October 19, 2011
The plaintiff filed suit against the defendants for causes of action sounding in contract after the defendants refused to consent to the assignment of certain agreements relating to the programming of a radio station. The parties filed competing summary judgment motions. The trial court dismissed the case, finding as a matter of law that the defendants did not breach one of the contracts at issue. The plaintiff appealed. We reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dickbroadcasting_101911.pdf
The plaintiff filed suit against the defendants for causes of action sounding in contract after the defendants refused to consent to the assignment of certain agreements relating to the programming of a radio station. The parties filed competing summary judgment motions. The trial court dismissed the case, finding as a matter of law that the defendants did not breach one of the contracts at issue. The plaintiff appealed. We reverse the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dickbroadcasting_101911.pdf
Friday, October 7, 2011
Amazon to begin collecting Tennessee sales tax in 2014
Amazon to begin collecting Tennessee sales tax in 2014
October 6, 2011
Brian Reisinger (Staff Reporter - Nashville Business Journal)
Gov. Bill Haslam confirmed a sales tax deal with online retailer Amazon.com Thursday morning, announcing thousands of additional jobs and what he hopes will be the resolution of a long-running dispute within the business community.
Amazon will invest a total of $350 million and create 3,500 full-time jobs under the deal, which will also include new locations in Tennessee. Amazon had previously committed to 1,500 jobs in Hamilton and Bradley counties, and between 300 and 500 jobs in Wilson County. The company also anticipates thousands of additional seasonal jobs.
See the full article at the Nashville Business Journal web site: http://www.bizjournals.com/nashville/news/2011/10/06/haslam-seals-amazon-deal-in-tennessee.html
October 6, 2011
Brian Reisinger (Staff Reporter - Nashville Business Journal)
Gov. Bill Haslam confirmed a sales tax deal with online retailer Amazon.com Thursday morning, announcing thousands of additional jobs and what he hopes will be the resolution of a long-running dispute within the business community.
Amazon will invest a total of $350 million and create 3,500 full-time jobs under the deal, which will also include new locations in Tennessee. Amazon had previously committed to 1,500 jobs in Hamilton and Bradley counties, and between 300 and 500 jobs in Wilson County. The company also anticipates thousands of additional seasonal jobs.
See the full article at the Nashville Business Journal web site: http://www.bizjournals.com/nashville/news/2011/10/06/haslam-seals-amazon-deal-in-tennessee.html
Thursday, October 6, 2011
Attorney General Opinion: Out-of-State Dealer's Nexus as a Result of Activities of In-State Distribution Center
In this opinion, the Attorney General discussed whether an out-of-state dealer that maintains an in-state distribution center or warehouse is required to collect Tennessee sales tax from Tennessee consumers. The AG concluded that, "if a retailer directly maintains or owns an in-state distributing house or warehouse, then the retailer has a physical presence within the State of Tennessee and, thus, has nexus with Tennessee for Commerce Clause purposes. On the other hand, if the in-state distributing house or warehouse is owned by a retailer’s subsidiary, instead of the retailer directly, nexus is established only if the subsidiary’s in-state activities are significantly associated with the retailer’s ability to establish and maintain a market in Tennessee for its sales."
The Attorney General also concluded that the fact that the dealer accepts purchase orders through electronic means does not release it of liability from collecting sales tax. Finally, he states that although the "State of Tennessee cannot contractually waive a taxpayer’s obligation to pay sales taxes where the Retailers’ Sales Tax Act unambiguously establishes an obligation to pay such taxes," the Commissioner of Revenue may exercise discretion in determining the best methods of enforcing Tennessee's tax laws.
Read the full opinion here: http://www.tba2.org/tba_files/AG/2011/ag_11_71.pdf
The Attorney General also concluded that the fact that the dealer accepts purchase orders through electronic means does not release it of liability from collecting sales tax. Finally, he states that although the "State of Tennessee cannot contractually waive a taxpayer’s obligation to pay sales taxes where the Retailers’ Sales Tax Act unambiguously establishes an obligation to pay such taxes," the Commissioner of Revenue may exercise discretion in determining the best methods of enforcing Tennessee's tax laws.
Read the full opinion here: http://www.tba2.org/tba_files/AG/2011/ag_11_71.pdf
Monday, October 3, 2011
Local banks enticed with funds for small business loans
Local banks enticed with funds for small business loans
By Josh Flory
Billy Carroll, president and CEO of Pigeon Forge-based SmartBank, acknowledges that the regulatory climate is tougher than it used to be, but said that banks still want to loan money.
'If we can't grow assets we can't make money,' he said. 'We can't generate a return for our shareholders.'
SmartBank's parent company was approved recently for $12 million through the federal Small Business Lending Fund, and Carroll said the bank is working on a couple of small-business loans that he thinks were generated by its participation in the program.
The funding, he said, allows the bank to price its loans a little more competitively, to grow its asset base 'and not have to worry about going out and immediately trying to raise capital behind that.'
SmartBank is among a handful of Tennessee community banks that have been on the receiving end of money from the $30 billion program approved by Congress last year.
See the full article at the Knoxville News Sentinel web site: http://www.knoxnews.com/news/2011/oct/03/local-banks-enticed-funds-small-business-loans/
By Josh Flory
Billy Carroll, president and CEO of Pigeon Forge-based SmartBank, acknowledges that the regulatory climate is tougher than it used to be, but said that banks still want to loan money.
'If we can't grow assets we can't make money,' he said. 'We can't generate a return for our shareholders.'
SmartBank's parent company was approved recently for $12 million through the federal Small Business Lending Fund, and Carroll said the bank is working on a couple of small-business loans that he thinks were generated by its participation in the program.
The funding, he said, allows the bank to price its loans a little more competitively, to grow its asset base 'and not have to worry about going out and immediately trying to raise capital behind that.'
SmartBank is among a handful of Tennessee community banks that have been on the receiving end of money from the $30 billion program approved by Congress last year.
See the full article at the Knoxville News Sentinel web site: http://www.knoxnews.com/news/2011/oct/03/local-banks-enticed-funds-small-business-loans/
Friday, September 30, 2011
Court reviews whether a partnership agreement was breached and the trial court's distribution of partnership profits.
LISA BRADFORD v. ABE STEPHENS (Tenn. Ct. App. September 28, 2011)
The appellant, the former business partner of the appellee, appeals the trial court's determination that the appellee did not breach their partnership agreement, as well as the trial court's distribution of partnership profits. Appellant also appeals the trial court's decision not to grant a jury trial.
We affirm the trial court's decision not to grant a jury trial as well as its determination that the appellee did not breach the partnership agreement. We adjust the amount of the court's awards to account for $5,000 of an $8,000 sale which the appellee kept rather than depositing it into the partnership account.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/bradfordl_092811.pdf
The appellant, the former business partner of the appellee, appeals the trial court's determination that the appellee did not breach their partnership agreement, as well as the trial court's distribution of partnership profits. Appellant also appeals the trial court's decision not to grant a jury trial.
We affirm the trial court's decision not to grant a jury trial as well as its determination that the appellee did not breach the partnership agreement. We adjust the amount of the court's awards to account for $5,000 of an $8,000 sale which the appellee kept rather than depositing it into the partnership account.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/bradfordl_092811.pdf
Tuesday, September 27, 2011
Patent reform act signed into law
President Obama has signed H.R. 1249, the "Leahy-Smith America Invents Act," passed by the Senate the week before. The act presents the most comprehensive overhaul of the Patent Statute (35 U.S.C.) since it was enacted in 1952, including changing our system of awarding patents from those who invent first to those who file their application first.
Law.com has the full story.
Law.com has the full story.
Saturday, September 17, 2011
Attorney General reviews whether the Retailers' Sales Tax imposes an unconstitutional tax on imports and exports
In this opinion, the Attorney General reviews the Retailers' Sales Tax Act in order to determine whether it violates the Import-Export Clause of the U.S. Constitution. After analyzing Commerce Clause jurisprudence, he determines that the "imposition of Tennessee;s sales and use taxes on out-of-state businesses with respect to items delivered or used in Tennessee is thus constitutionally permissible, provided that “substantial nexus” is established."
He concludes that the Retailers' Sales Tax Act imposes a privilege tax on the retail sale and use of tangible personal property in Tennessee, but that it does not impose a tax on imports from and exports to foreign countries in violation of the United States Constitution.
Read the full opinion here:
http://www.tba2.org/tba_files/AG/2011/ag_11_67.pdf
He concludes that the Retailers' Sales Tax Act imposes a privilege tax on the retail sale and use of tangible personal property in Tennessee, but that it does not impose a tax on imports from and exports to foreign countries in violation of the United States Constitution.
Read the full opinion here:
http://www.tba2.org/tba_files/AG/2011/ag_11_67.pdf
Friday, September 9, 2011
Major patent overhaul passes U.S. Senate
The U.S. Senate passed the Leahy-Smith America Invents Act on Thursday, the first significant change in patent law since 1952. The legislation is designed to spur innovation and provide a boost to the job market. The law would change the nation's U.S. patent system from a first-to-invent system to a first-to-file system and would help provide adequate funding to the overwhelmed patent office by allowing it to set and keep its own fees. The final bill is controversial because it does not prohibit fee diversion -- the practice of using excess U.S. Patent and Trademark Office revenue for other government programs.
Read the full story on CNN.com
Read the full story on CNN.com
Thursday, September 1, 2011
Patent office hits 8 million mark
The U.S. Patent and Trademark Office issued patent number 8 million on Tuesday, August 16. It went to Second Sight Medical Products for an invention the company says enhances visual perception for a certain kind of blindness. The first patent, for a cog mechanism in locomotives, was issued in 1836 to Sen. John Ruggles, who was known as the father of the U.S. Patent office.
Read the full story on NPR's website.
Read the full story on NPR's website.
Monday, August 29, 2011
Court reviews whether guarantors are liable for loans obtained through fraudulent means without their knowledge
SECURAMERICA BUSINESS CREDIT v. KARL SCHLEDWITZ and TERRY LYNCH (Tenn. Ct. App. August 29, 2011)
This is a guaranty case. Appellants personally guaranteed a line of credit for their trucking company. Later, Appellants sold the trucking company to two employees, but were not released by the Appellee lender from their guaranties.
Under new ownership, the company falsified borrowing documents so that more money was extended on the line of credit than was collateralized per the loan agreement. This was done with the complicity of the lender, but without the knowledge of the guarantors. The debtor trucking company defaulted, and the lender sought repayment of the loan from the guarantors.
Following a bench trial, the trial court found Appellants liable for their personal guaranties, but denied prejudgment interest and punitive damages due to what the court characterized as the fraudulent actions of Appellee. In an apparent clerical mistake, on the same date that the trial court entered its final judgment, it also entered an order voluntarily dismissing all claims against Appellants. More than a year later, the trial court entered an order clarifying its prior order of dismissal.
After a thorough review of the record, we conclude that: (1) the trial court properly afforded Appellee relief under Tenn. R. Civ. P. 60.01 to clarify its prior order of dismissal; and (2) the trial court made incomplete and contradictory findings of fact and conclusions of law, such that further appellate review is precluded. Consequently, we vacate and remand for additional findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/securamerica_082911.pdf
This is a guaranty case. Appellants personally guaranteed a line of credit for their trucking company. Later, Appellants sold the trucking company to two employees, but were not released by the Appellee lender from their guaranties.
Under new ownership, the company falsified borrowing documents so that more money was extended on the line of credit than was collateralized per the loan agreement. This was done with the complicity of the lender, but without the knowledge of the guarantors. The debtor trucking company defaulted, and the lender sought repayment of the loan from the guarantors.
Following a bench trial, the trial court found Appellants liable for their personal guaranties, but denied prejudgment interest and punitive damages due to what the court characterized as the fraudulent actions of Appellee. In an apparent clerical mistake, on the same date that the trial court entered its final judgment, it also entered an order voluntarily dismissing all claims against Appellants. More than a year later, the trial court entered an order clarifying its prior order of dismissal.
After a thorough review of the record, we conclude that: (1) the trial court properly afforded Appellee relief under Tenn. R. Civ. P. 60.01 to clarify its prior order of dismissal; and (2) the trial court made incomplete and contradictory findings of fact and conclusions of law, such that further appellate review is precluded. Consequently, we vacate and remand for additional findings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/securamerica_082911.pdf
Monday, August 15, 2011
Court reviews whether employer had just cause to terminate employee in violation of an employment contract
VICKI L. HUTCHINGS, v. JOBE, HASTINGS & ASSOCIATES (Tenn. Ct. App. August 15, 2011)
Plaintiff and defendant entered into a contract of employment for a term of three years, wherein plaintiff would prepare tax returns for defendant tax firm. Defendant terminated plaintiff's employment before the three year term had expired and plaintiff appealed to this Court to reverse the Trial Court's finding of breach of contract and award her damages for the breach. We hold that the evidence does not preponderate against the Trial Court's finding that the employer had just cause to terminate plaintiff. We affirm the Judgment of the Trial Court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hutchingsv_081511.pdf
Plaintiff and defendant entered into a contract of employment for a term of three years, wherein plaintiff would prepare tax returns for defendant tax firm. Defendant terminated plaintiff's employment before the three year term had expired and plaintiff appealed to this Court to reverse the Trial Court's finding of breach of contract and award her damages for the breach. We hold that the evidence does not preponderate against the Trial Court's finding that the employer had just cause to terminate plaintiff. We affirm the Judgment of the Trial Court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hutchingsv_081511.pdf
Friday, August 12, 2011
Court reviews whether a subsequent agreement was a new agreement or a renewal of an old agreement
BSG, LLC v. CHECK VELOCITY, INC. (Tenn. Ct. App. August 12, 2011)
BSG, LLC introduced CheckVelocity to Weight Watchers. In 2005, CheckVelocity and Weight Watchers entered into an agreement whereby CheckVelocity provided check collection services. BSG, in accordance with its agreement with CheckVelocity, was to receive compensation for its introduction of CheckVelocity to Weight Watchers in the form of residual fees during the time of the CheckVelocity - Weight Watchers agreement and any renewal agreements. In 2008, CheckVelocity and Weight Watchers entered into a new agreement in which credit card collection services were added and the check collection services were continued unchanged. CheckVelocity stopped paying the residual fees because it considered the Weight Watchers agreement to be a new agreement, not a renewal of the old one. BSG sued. The trial court considered the 2008 agreement to be a new agreement, not a renewal, and ruled for CheckVelocity. BSG appealed. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bsg_081211.pdf
BSG, LLC introduced CheckVelocity to Weight Watchers. In 2005, CheckVelocity and Weight Watchers entered into an agreement whereby CheckVelocity provided check collection services. BSG, in accordance with its agreement with CheckVelocity, was to receive compensation for its introduction of CheckVelocity to Weight Watchers in the form of residual fees during the time of the CheckVelocity - Weight Watchers agreement and any renewal agreements. In 2008, CheckVelocity and Weight Watchers entered into a new agreement in which credit card collection services were added and the check collection services were continued unchanged. CheckVelocity stopped paying the residual fees because it considered the Weight Watchers agreement to be a new agreement, not a renewal of the old one. BSG sued. The trial court considered the 2008 agreement to be a new agreement, not a renewal, and ruled for CheckVelocity. BSG appealed. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bsg_081211.pdf
Thursday, August 11, 2011
Legal agreements are NOT for when things go well
One of those basic realities of entrepreneurship is the fact that you can't get there by yourself. You will need help and it will likely come in the form of partners. Manufacturing, sales, marketing, finance, accounting, and the list goes on. Perhaps a typical scenario goes like this: you have a hot new technology but you need someone to help you make it. Your intellectual property outlines a basic concept for making the product and your challenge is to figure out how to scale up in a manufacturing environment. So you meet with a few manufactures who are excited about working with you as you are equally excited about making your stuff. You like one particular company and you sign a Memorandum of Understanding (MOU) or a Letter of Intent (LOI) and start the process of figuring out how to make your stuff. Through several trial runs, you determine the right mix of materials, the best temperature and pressure and your product turns out to be better than expected. The question is who owns this new intellectual property? You? Everybody? Nobody?
Benjamin K. Riley has written a fine article on the Fortune Blog called Three Legal Lessons For Startups in which he goes into some detail about the importance of legal agreements between business partners and joint ventures. Different legal agreement types carry different weight when it comes to ownership of intellectual property and it's important to understand these differences and make sure your trade secrets stay a secret.
Complete article may be found at:
http://www.outofthegarage.com/outofthegarage/2011/2/25/legal-agreements-are-not-for-when-things-go-well.html
Benjamin K. Riley has written a fine article on the Fortune Blog called Three Legal Lessons For Startups in which he goes into some detail about the importance of legal agreements between business partners and joint ventures. Different legal agreement types carry different weight when it comes to ownership of intellectual property and it's important to understand these differences and make sure your trade secrets stay a secret.
Complete article may be found at:
http://www.outofthegarage.com/outofthegarage/2011/2/25/legal-agreements-are-not-for-when-things-go-well.html
Wednesday, August 3, 2011
Court reviews a claim against a used car business for issues including misrepresentation, fraud, and conversion
ASHRAF M. SAWERES v. ROYAL NET AUTO SALE, INC., ET AL. (Tenn. Ct. App. August 3, 2011)
This appeal arises out of an action in which the plaintiff asserted a claim that the agent of a used car business in which the plaintiff allegedly invested committed misrepresentation, fraud, and conversion, and violated the Tennessee Consumer Protection Act in failing to give him stock in the business or compensate him for work performed at the business. Plaintiff also asserted a claim based on defendants' alleged failure to repair his vehicle. The trial court held that plaintiff had not established the necessary elements for any of his claims and dismissed the case; plaintiff appeals. Finding no error, we affirm.
Full Opinion available:
http://www.tba2.org/tba_files/TCA/2011/saweresa_080311.pdf
This appeal arises out of an action in which the plaintiff asserted a claim that the agent of a used car business in which the plaintiff allegedly invested committed misrepresentation, fraud, and conversion, and violated the Tennessee Consumer Protection Act in failing to give him stock in the business or compensate him for work performed at the business. Plaintiff also asserted a claim based on defendants' alleged failure to repair his vehicle. The trial court held that plaintiff had not established the necessary elements for any of his claims and dismissed the case; plaintiff appeals. Finding no error, we affirm.
Full Opinion available:
http://www.tba2.org/tba_files/TCA/2011/saweresa_080311.pdf
Thursday, July 28, 2011
Growth in software patents draws mixed reactions
A story from National Public Radio looks at the issue of patents in the software industry and the growing number of lawsuits being filed by so-called "patent trolls," which amass patents and then demand companies license the technology. Many of these patents are so broad, engineers say, that everyone's guilty of infringement. And computer programmers and enterpenuers say the practice is hindering innovation.
Read the full story here.
Read the full story here.
Monday, July 25, 2011
Women-Owned Small Business Federal Contract Program
Latest News Release: February 1, 2011 – SBA Expands Access to Federal Contracting Opportunities for Women-Owned Small Businesses
Memo from the Administrator:
On October 7, 2010, the U.S. Small Business Administration published a final rule effective February 4, 2011, aimed at expanding federal contracting opportunities for women-owned small businesses (WOSBs). The Women-Owned Small Business (WOSB) Federal Contract program authorizes contracting officers to set aside certain federal contracts for eligible:
Women-owned small businesses (WOSBs) or
Economically disadvantaged women-owned small businesses (EDWOSBs)
http://www.sba.gov/content/contracting-opportunities-women-owned-small-businesses
Memo from the Administrator:
On October 7, 2010, the U.S. Small Business Administration published a final rule effective February 4, 2011, aimed at expanding federal contracting opportunities for women-owned small businesses (WOSBs). The Women-Owned Small Business (WOSB) Federal Contract program authorizes contracting officers to set aside certain federal contracts for eligible:
Women-owned small businesses (WOSBs) or
Economically disadvantaged women-owned small businesses (EDWOSBs)
http://www.sba.gov/content/contracting-opportunities-women-owned-small-businesses
Court Reviews Whether an Employee Relinquished a Promised Ownership Interest When He Signed a Subsequent Employment Contract
STEPHEN BROWN v. COLUMBIA PRECAST, LLC, ET AL. (Tenn. Ct. App. July 22, 2011)
An employee was promised 10% ownership interest in the company he worked for if he stayed with the company for six years. When the time came to transfer the employee's 10% interest to him, however, the parties learned that the tax laws then in effect made the transfer impractical at that time. The parties therefore decided to delay the transfer.
The parties entered into a contract the following year which the employer interpreted to mean that the employee was giving up his 10% ownership interest in exchange for a raise in his salary plus 10% of the company's net profits each year. The employee claimed he did not give up his 10% ownership interest and sued the company and former majority owner for his 10% interest when the company was sold a few years later.
The trial court concluded the employee did not give up his 10% ownership interest by signing the later agreement and awarded the employee 10% of the company's net profits for the years following the employee's termination plus 10% of the ultimate purchase price. We affirm the trial court's judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/brownss_072211.pdf
An employee was promised 10% ownership interest in the company he worked for if he stayed with the company for six years. When the time came to transfer the employee's 10% interest to him, however, the parties learned that the tax laws then in effect made the transfer impractical at that time. The parties therefore decided to delay the transfer.
The parties entered into a contract the following year which the employer interpreted to mean that the employee was giving up his 10% ownership interest in exchange for a raise in his salary plus 10% of the company's net profits each year. The employee claimed he did not give up his 10% ownership interest and sued the company and former majority owner for his 10% interest when the company was sold a few years later.
The trial court concluded the employee did not give up his 10% ownership interest by signing the later agreement and awarded the employee 10% of the company's net profits for the years following the employee's termination plus 10% of the ultimate purchase price. We affirm the trial court's judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/brownss_072211.pdf
Friday, July 22, 2011
State Supreme Court remeasures height of discovery hurdle
Coming out of Habitat case, standard required to sue employer unchanged
Published July 22, 2011 by Philip Nannie
Employers take note.
The good news is the state's highest court didn't make it easier for an employee to sue a company. The bad news is it didn't make it any harder, either.
Tennessee Supreme Court judges on Thursday issued an important ruling clarifying the burden of proof for employees suing for retaliatory discharge. Representatives of the state's largest employers were anticipating this decision, the result of which won't make future firings any easier.
Complete article may be found at: http://nashvillepost.com/news/2011/7/22/state_supreme_court_remeasures_height_of_discovery_hurdle
Published July 22, 2011 by Philip Nannie
Employers take note.
The good news is the state's highest court didn't make it easier for an employee to sue a company. The bad news is it didn't make it any harder, either.
Tennessee Supreme Court judges on Thursday issued an important ruling clarifying the burden of proof for employees suing for retaliatory discharge. Representatives of the state's largest employers were anticipating this decision, the result of which won't make future firings any easier.
Complete article may be found at: http://nashvillepost.com/news/2011/7/22/state_supreme_court_remeasures_height_of_discovery_hurdle
Friday, July 15, 2011
Knoxville Region is #1 in Green Job Growth
Knoxville is the nation’s fastest growing area for green jobs according to a report, “Sizing the Clean Economy: A National and Regional Green Jobs Assessment,” released by the Brookings Institute. Knoxville saw green jobs grow by 14.6 percent annually between 2003 and 2010. During that period the region added 10,000 green jobs, and now clean economy jobs account for 4.9 percent of all jobs in the Innovation Valley. The measure of the concentration of green jobs ranks Knoxville 2nd in the nation.
Complete article may be found at:
http://www.knoxvilleoakridge.com/news-releases/knoxville-region-1-green-job-growth
Complete article may be found at:
http://www.knoxvilleoakridge.com/news-releases/knoxville-region-1-green-job-growth
Thursday, July 14, 2011
Forbes Ranks Nashville #6, Knoxville #26, and Clarksville #87 “Best Places For Business and Careers”
Forbes: The Best Places for Business and Careers
Forbes recently issued a list of the Top 100 best cities for businesses and careers, and several Tennessee cities made the list:
6 – Nashville
26 – Knoxville
87 – Clarksville
According to their methodology, they looked at the 200 largest metropolitan statistical areas in the United States. They considered 12 metrics relating to job growth (both past and projected), costs (business and living), income growth, educational attainment and projected economic growth. They also factored in quality of life elements such as crime rates, cultural and recreational opportunities, and net migration patterns. Finally, they included the number of highly-ranked colleges in an area according to their annual college rankings.
Forbes recently issued a list of the Top 100 best cities for businesses and careers, and several Tennessee cities made the list:
6 – Nashville
26 – Knoxville
87 – Clarksville
According to their methodology, they looked at the 200 largest metropolitan statistical areas in the United States. They considered 12 metrics relating to job growth (both past and projected), costs (business and living), income growth, educational attainment and projected economic growth. They also factored in quality of life elements such as crime rates, cultural and recreational opportunities, and net migration patterns. Finally, they included the number of highly-ranked colleges in an area according to their annual college rankings.
Sunday, July 10, 2011
Court Reviews Whether an Implied Partnership Existed Between Two Parties and Whether Certain Property was Subject to Divestiture
REBECCA GRIBBLE WADDELL v. GREGORY C. RUSTIN (Tenn. Ct. App. July 7, 2011)
This case stems from a lawsuit over an alleged implied partnership. Rebecca Gribble Waddell ("Waddell") and Gregory C. Rustin ("Rustin") were involved romantically for a number of years. After the couple separated, Waddell sued Rustin in the Chancery Court for Jefferson County ("the Trial Court"), alleging, among other things, that a partnership existed between Waddell and Rustin.
The Trial Court held, inter alia, that there was no partnership between Waddell and Rustin and ordered divestiture of certain property from Waddell to Rustin. Waddell appeals to this Court, and both parties raise multiple issues. Rustin also argues that this appeal is frivolous. We affirm the judgment of the Trial Court on all issues except for that concerning divestiture of certain property from Waddell, which we reverse. We decline to hold this appeal frivolous. We affirm, in part, and, reverse, in part.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/waddellr_070711.pdf
This case stems from a lawsuit over an alleged implied partnership. Rebecca Gribble Waddell ("Waddell") and Gregory C. Rustin ("Rustin") were involved romantically for a number of years. After the couple separated, Waddell sued Rustin in the Chancery Court for Jefferson County ("the Trial Court"), alleging, among other things, that a partnership existed between Waddell and Rustin.
The Trial Court held, inter alia, that there was no partnership between Waddell and Rustin and ordered divestiture of certain property from Waddell to Rustin. Waddell appeals to this Court, and both parties raise multiple issues. Rustin also argues that this appeal is frivolous. We affirm the judgment of the Trial Court on all issues except for that concerning divestiture of certain property from Waddell, which we reverse. We decline to hold this appeal frivolous. We affirm, in part, and, reverse, in part.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/waddellr_070711.pdf
Tuesday, July 5, 2011
Attorney General: Amazon can be pushed on taxes
TN Attorney General Issues Opinion Upholding a Bill that would Require Amazon to Pay State Sales Taxes (Nashville Business Journal)
Tennessee's Attorney General issued an opinion upholding the constitutionality of a proposed bill that would require Amazon to pay state sales taxes. The opinion supports the argument that the building of distribution centers in Tennessee creates a physical presence, or “nexus,” which can trigger sales-tax requirements; however, the Attorney General declined to explicitly state that Amazon, which is building several distribution centers in Tennessee, has a sales-tax obligation to the state.
You can read the full text of the opinion here:
http://www.tba2.org/tba_files/AG/2011/ag_11_52.pdf
Tennessee's Attorney General issued an opinion upholding the constitutionality of a proposed bill that would require Amazon to pay state sales taxes. The opinion supports the argument that the building of distribution centers in Tennessee creates a physical presence, or “nexus,” which can trigger sales-tax requirements; however, the Attorney General declined to explicitly state that Amazon, which is building several distribution centers in Tennessee, has a sales-tax obligation to the state.
You can read the full text of the opinion here:
http://www.tba2.org/tba_files/AG/2011/ag_11_52.pdf
Thursday, June 30, 2011
Court Reviews Whether the Tennessee-Based Income of a Delaware Limited Partnership are subject to Taxation in Tennessee
H.J. HEINZ COMPANY, L.P. v. LOREN L. CHUMLEY, COMMISSIONER OF REVENUE, STATE OF TENNESSEE (Tenn. Ct. App. June 29, 1011)
Plaintiff/Appellant H.J. Heinz Company, LP, is a Delaware limited partnership that manufactures, sells and distributes food products. Plaintiff operates a facility in Nashville, Tennessee. The issue in this case is whether Plaintiff's income from its investment in HJH One, LLC, is subject to taxation, on an apportionment basis, in Tennessee.
The trial court determined that the earnings constituted business earnings as defined by the relevant statutes, and that the Department of Revenue's assessment of franchise and excise taxes on the earnings was constitutional. The trial court further determined that the apportionment formula used by the Department was correct. The trial court awarded summary judgment to the Commissioner, and Plaintiff appeals. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/hjheinz_062911.pdf
Plaintiff/Appellant H.J. Heinz Company, LP, is a Delaware limited partnership that manufactures, sells and distributes food products. Plaintiff operates a facility in Nashville, Tennessee. The issue in this case is whether Plaintiff's income from its investment in HJH One, LLC, is subject to taxation, on an apportionment basis, in Tennessee.
The trial court determined that the earnings constituted business earnings as defined by the relevant statutes, and that the Department of Revenue's assessment of franchise and excise taxes on the earnings was constitutional. The trial court further determined that the apportionment formula used by the Department was correct. The trial court awarded summary judgment to the Commissioner, and Plaintiff appeals. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/hjheinz_062911.pdf
Wednesday, June 29, 2011
TN Supreme Court Reviews Whether Various Agreements for the Sale of a Corporation were Contrary to Public Policy and, Thus, Unenforceable
WENDELL P. BAUGH, III ET AL. v. HERMAN NOVAK ET AL. (Tenn. May 20, 2011)
This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy.
The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers' alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation.
Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers' counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. section 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009).
We granted the sellers' Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court's decision to dismiss the purchasers' counterclaim for fraudulent inducement.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/baughw_052011.pdf
This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy.
The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers' alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation.
Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers' counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. section 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009).
We granted the sellers' Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court's decision to dismiss the purchasers' counterclaim for fraudulent inducement.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/baughw_052011.pdf
Court Reviews Whether Injunctive Relief was Proper in a Case Involving a Dispute Between an Employer and a Former Employee
OTTER'S CHICKEN TENDER, LLC v. JOEY COPPAGE (Tenn. Ct. App. June 28, 2011)
This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both parties' claims for attorney fees and extended a temporary injunction previously entered.
Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court's denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court's action in extending the temporary injunction.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/otters_062811.pdf
This appeal arises out of a breach of contract action between a restaurant and its former employee. On cross motions for summary judgment, the court resolved all issues between the parties except whether attorney fees should be awarded and whether a permanent injunction should be issued against the employee. The court subsequently dismissed both parties' claims for attorney fees and extended a temporary injunction previously entered.
Both parties appeal the denial of attorney fees; in addition, defendant asserts that the trial court erred in extending the temporary injunction. Finding that the court erred in determining that plaintiff was not the prevailing party, we reverse the court's denial of attorneys fees to plaintiff and remand for an award of fees for time spent pursuing injunctive relief; we affirm the court's action in extending the temporary injunction.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/otters_062811.pdf
Saturday, June 25, 2011
Guy's bankruptcy 'handbook' shares secrets
Nashville lawyer Bobby Guy recently wrote and published a book entitled Distress to Success. The book is billed as a "handbook for business leaders trying to turn around their company, as well as for investors trolling the market for a good opportunity."
The Nashville Business Journal talks to Guy about the book. Check out the full story here:
http://www.bizjournals.com/nashville/print-edition/2011/06/24/nashville-bankruptcy-lawyer.html
The Nashville Business Journal talks to Guy about the book. Check out the full story here:
http://www.bizjournals.com/nashville/print-edition/2011/06/24/nashville-bankruptcy-lawyer.html
Saturday, June 18, 2011
Court Reviews Whether Plaintiff is Entitled to Unpaid Wages and Reimbursement for the Cost of Educational Courses Taken During His Employment
WILLIAM BRIAN TAYLOR v. THE DEL-NAT TIRE CORPORATION (Tenn. Ct. App. June 13, 2011)
Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney's fees. We reverse the decision of the circuit court and vacate the award.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/taylorw_061311.pdf
Plaintiff sued his former employer, claiming that he was entitled to unpaid overtime pay and reimbursement for the cost of educational courses he took while employed by the employer. Following a bench trial, the trial court awarded the plaintiff overtime pay, reimbursement for the courses, and attorney's fees. We reverse the decision of the circuit court and vacate the award.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/taylorw_061311.pdf
Thursday, May 26, 2011
Advice for business: Hire an attorney (Tennessean)
A small business just starting out needs a "strong three-legged stool to support it," columnist Jeff Cornwall writes. "The three legs should consist of a strong attorney, a CPA and a business banker." Cornwall explains why it's best not to do-it-yourself when it comes to these jobs.
Chris Sloan, an attorney with the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, weighs in saying that the best way to avoid a nasty business breakup later is with an agreement that addresses issues like decision-making, dispute resolution, what happens if someone dies or wants to leave, and how and when to shut or sell the business. "With a good agreement, you accomplish two things," Sloan says. "First, you avoid a dispute down the road, and second, you have a chance to preserve the personal relationships."
Read the full story at the Tennessean's website: http://www.tennessean.com/article/20110509/BUSINESS/305090019/Startup-entrepreneurs-need-good-business-attorneys
Chris Sloan, an attorney with the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, weighs in saying that the best way to avoid a nasty business breakup later is with an agreement that addresses issues like decision-making, dispute resolution, what happens if someone dies or wants to leave, and how and when to shut or sell the business. "With a good agreement, you accomplish two things," Sloan says. "First, you avoid a dispute down the road, and second, you have a chance to preserve the personal relationships."
Read the full story at the Tennessean's website: http://www.tennessean.com/article/20110509/BUSINESS/305090019/Startup-entrepreneurs-need-good-business-attorneys
Thursday, May 19, 2011
Tennessee Adventure Tourism and Rural Development Act approved in Senate Finance Committee
The Senate Finance Committee has approved legislation to enact the Tennessee Adventure Tourism and Rural Development Act. The objective is to establish a plan for Tennessee to promote outdoor recreational opportunities in rural, high-employment areas of the state to create jobs. Senate Bill 1205 would direct the Department of Economic and Community Development and the Department of Conservation and Environment to perform a study and create a plan to promote adventure tourism and other recreational and economic development activities in rural areas.
Wednesday, May 18, 2011
Court Reviews Whether Plantiff's Case, Based on Respondeat Superior, is Barred
ANNE LAVOIE and JODEE LAVOIE v. FRANKLIN COUNTY PUBLISHING COMPANY, INC. (Tenn. Ct. App. May 18, 2011)
These consolidated actions are before this Court on a Tennessee Rule of Appellate Procedure 9 interlocutory appeal from the trial court's denial of summary judgment. We are asked to consider whether, as a matter of law, a plaintiff is barred from maintaining a suit against an employer under a sole theory of respondeat superior where the plaintiff settles her claim against the employee, executes a release of all claims as to the employee, but reserves her claim against the employer in a court order dismissing the employee with prejudice. We hold that the plaintiff's suit is barred. The judgment of the trial court is reversed, summary judgment is granted to the employer, and the case is dismissed.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lavoiea_051811.pdf
These consolidated actions are before this Court on a Tennessee Rule of Appellate Procedure 9 interlocutory appeal from the trial court's denial of summary judgment. We are asked to consider whether, as a matter of law, a plaintiff is barred from maintaining a suit against an employer under a sole theory of respondeat superior where the plaintiff settles her claim against the employee, executes a release of all claims as to the employee, but reserves her claim against the employer in a court order dismissing the employee with prejudice. We hold that the plaintiff's suit is barred. The judgment of the trial court is reversed, summary judgment is granted to the employer, and the case is dismissed.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/lavoiea_051811.pdf
Tuesday, May 17, 2011
Court Reviews Liability of a Bar's Insurer for the Death of a Bar Patron
DONNA CLARK v. SPUTNIKS, LLC ET AL. (Tenn. Ct. App. May 26, 2011)
The trial court determined that the insurer of a bar was liable under its commercial general liability policy and liquor liability policy for the death of a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/clarkd_052611.pdf
The trial court determined that the insurer of a bar was liable under its commercial general liability policy and liquor liability policy for the death of a bar patron. We have concluded that this occurrence is excluded under the assault and battery exclusion of the commercial general liability policy but is covered by the liquor liability policy.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/clarkd_052611.pdf
Sunday, May 15, 2011
Court Reviews Conflicting Transactions for the Assignment of Oil and Gas Leases
CNX GAS COMPANY, LLC v. MILLER PETROLEUM, INC., ET AL. (Tenn. Ct. App. May 11, 2011)
This appeal involves a business transaction for the assignment of oil and gas leases. The parties are sophisticated in the oil and gas industry and include CNX Gas Company, LLC ("CNX"), Miller Petroleum, Inc. ("Miller"), Atlas America, LLC ("Atlas"), and Wind City Oil & Gas, LLC ("Wind City").
CNX and Miller entered into a binding Letter of Intent ("LOI") for the assignment of oil and gas leases owned by Miller. Prior to signing the LOI, CNX knew that the leases were the subject of pending litigation between Miller and Wind City. The letter of intent outlined the details of the transaction and a closing date. On the closing date, Miller refused to close the transaction with CNX, claiming that it did not have possession of the leases. Approximately one week later, Miller entered into a similar deal for the assignment of those leases with Atlas. The transaction between Miller and Atlas was worth substantially more than the transaction with CNX.
Thereafter, CNX sued Miller for breach of contract; CNX also sued Atlas and Wind City for inducement to breach a contract. Miller and Atlas filed motions for summary judgment following discovery that involved depositions. After a hearing, the trial court granted summary judgment finding that the LOI permitted Miller to opt out of the closing. CNX appeals. After reviewing the record, we find the trial court erred in granting summary judgment. The LOI only provided CNX with the option to opt out of the transaction. Accordingly, we reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cnx_051111.pdf
This appeal involves a business transaction for the assignment of oil and gas leases. The parties are sophisticated in the oil and gas industry and include CNX Gas Company, LLC ("CNX"), Miller Petroleum, Inc. ("Miller"), Atlas America, LLC ("Atlas"), and Wind City Oil & Gas, LLC ("Wind City").
CNX and Miller entered into a binding Letter of Intent ("LOI") for the assignment of oil and gas leases owned by Miller. Prior to signing the LOI, CNX knew that the leases were the subject of pending litigation between Miller and Wind City. The letter of intent outlined the details of the transaction and a closing date. On the closing date, Miller refused to close the transaction with CNX, claiming that it did not have possession of the leases. Approximately one week later, Miller entered into a similar deal for the assignment of those leases with Atlas. The transaction between Miller and Atlas was worth substantially more than the transaction with CNX.
Thereafter, CNX sued Miller for breach of contract; CNX also sued Atlas and Wind City for inducement to breach a contract. Miller and Atlas filed motions for summary judgment following discovery that involved depositions. After a hearing, the trial court granted summary judgment finding that the LOI permitted Miller to opt out of the closing. CNX appeals. After reviewing the record, we find the trial court erred in granting summary judgment. The LOI only provided CNX with the option to opt out of the transaction. Accordingly, we reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cnx_051111.pdf
Friday, April 29, 2011
Court Reviews the Admissibility of Evidence in a Suit to Recover the Balance on a Past Due Account
BELLSOUTH ADVERTISING & PUBLISHING CORP. v. SENTAYEHU ABEBE, ET AL. (Tenn. Ct. App. April 29, 2011)
This appeal arises out of a suit to recover the balance on a past due account for an advertisement in a telephone directory. Defendant disputed the authenticity and admissibility of the documents submitted by plaintiff to establish an enforceable and valid contract. The trial court permitted the documents to be admitted and entered judgment for plaintiff. Defendant appeals, contending that the trial court erred in admitting the documents and in finding an enforceable contract. Finding no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bellsouthadv_042911.pdf
This appeal arises out of a suit to recover the balance on a past due account for an advertisement in a telephone directory. Defendant disputed the authenticity and admissibility of the documents submitted by plaintiff to establish an enforceable and valid contract. The trial court permitted the documents to be admitted and entered judgment for plaintiff. Defendant appeals, contending that the trial court erred in admitting the documents and in finding an enforceable contract. Finding no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bellsouthadv_042911.pdf
Wednesday, April 27, 2011
Court Reviews the Allocation of Debts and Expenses in a Case Involving the Dissolution of a Real Estate Partnership
T. VERNER SMITH v. JERRY F. GARDNER (Tenn. Ct. App. April 27, 2011)
This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership's debts and expenses. The court dismissed the counterclaims. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smitht_042711.pdf
This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership's debts and expenses. The court dismissed the counterclaims. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/smitht_042711.pdf
Tuesday, April 26, 2011
Court Reviews the Franchise Tax Liability of a Corporation that Operates Motion Picture Theaters
MALCO THEATERS, INC. v. RICHARD H. ROBERTS, COMMISSIONER OF REVENUE, STATE OF TENNESSEE (Tenn. Ct. App. April 26, 2011)
This appeal concerns the franchise tax liability of a corporation operating motion picture theaters in Tennessee. The Tennessee Department of Revenue assessed deficiencies against the corporation in 2001 and 2004 after audits revealed the corporation did not include the value of rented films within its minimum franchise tax base. The corporation filed separate lawsuits in chancery court disputing the assessments. After consolidating the cases, the chancery court granted summary judgment in favor of the corporation. We reverse the grant of summary judgment, grant partial summary judgment in favor of the Commissioner of Revenue, grant partial summary judgment in favor of the corporation, and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/malcotheaters_042611.pdf
This appeal concerns the franchise tax liability of a corporation operating motion picture theaters in Tennessee. The Tennessee Department of Revenue assessed deficiencies against the corporation in 2001 and 2004 after audits revealed the corporation did not include the value of rented films within its minimum franchise tax base. The corporation filed separate lawsuits in chancery court disputing the assessments. After consolidating the cases, the chancery court granted summary judgment in favor of the corporation. We reverse the grant of summary judgment, grant partial summary judgment in favor of the Commissioner of Revenue, grant partial summary judgment in favor of the corporation, and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/malcotheaters_042611.pdf
Monday, April 25, 2011
Court Reviews Whether Insurance Company had Indemnity in a Personal Injury Suit
EVEREST NATIONAL INSURANCE COMPANY v. RESTAURANT MANAGEMENT GROUP, LLC ET AL. (Tenn. Ct. App. April 25, 2011)
This is a declaratory judgment action filed by an insurance company against its insured and the insured's customer who allegedly was injured from a fall after stepping in a hole in the insured's parking lot.
The insurance company asked for a declaration that it was not obligated to defend and indemnify the insured against the customer's personal injury claim. The insured filed a counterclaim asking for a declaration that the insurer was required to defend the claim and indemnify the insured against liability to the customer.
On dueling motions for summary judgment, the trial court held that the insurance company was relieved of its obligation to defend and indemnify the insured because the insured waited five months before notifying the insurance company of the claim and that, as a consequence of the insured's delay, the insurer was prejudiced. During that five months, the insured repaired cracks in the parking lot where the fall allegedly occurred. The insured appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/everest_042511.pdf
This is a declaratory judgment action filed by an insurance company against its insured and the insured's customer who allegedly was injured from a fall after stepping in a hole in the insured's parking lot.
The insurance company asked for a declaration that it was not obligated to defend and indemnify the insured against the customer's personal injury claim. The insured filed a counterclaim asking for a declaration that the insurer was required to defend the claim and indemnify the insured against liability to the customer.
On dueling motions for summary judgment, the trial court held that the insurance company was relieved of its obligation to defend and indemnify the insured because the insured waited five months before notifying the insurance company of the claim and that, as a consequence of the insured's delay, the insurer was prejudiced. During that five months, the insured repaired cracks in the parking lot where the fall allegedly occurred. The insured appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/everest_042511.pdf
Wednesday, March 30, 2011
U.S. Supreme Court: Oral complaints protected in workplace
Workers are protected from retaliation when they voice complaints about labor law violations, even if they don't write them down, the U.S. Supreme Court said today. At issue is statutory language protecting workers from retaliation if they have "filed any complaint." In his majority opinion, Justice Stephen G. Breyer said the purpose and context of the provision support the conclusion that the oral complaint was protected.
ABAJournal.com has the full story:
http://www.abajournal.com/news/article/supreme_court_rules_oral_workplace_complaints_are_protected_under_labor_law/
ABAJournal.com has the full story:
http://www.abajournal.com/news/article/supreme_court_rules_oral_workplace_complaints_are_protected_under_labor_law/
Thursday, March 24, 2011
Court Reviews Whether Plaintiff Sufficiently Alleged the Futility of Demanding a Board of Directors to Initiate a Lawsuit
IN RE HEALTHWAYS, INC. DERIVATIVE LITIGATION (Tenn. Ct. App. March 15, 2011)
Plaintiff in shareholder derivative action appeals the dismissal of his suit alleging breaches of fiduciary duty and other misconduct, including insider trading, by current and former officers and directors of corporation. Plaintiff filed suit without first making demand on the board of directors of the corporation that the directors initiate the lawsuit. Defendants moved to dismiss the suit on the ground that plaintiff failed to allege with requisite particularity that such demand would have been futile. We affirm the dismissal of the action.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/healthways_COR_032411.pdf
Plaintiff in shareholder derivative action appeals the dismissal of his suit alleging breaches of fiduciary duty and other misconduct, including insider trading, by current and former officers and directors of corporation. Plaintiff filed suit without first making demand on the board of directors of the corporation that the directors initiate the lawsuit. Defendants moved to dismiss the suit on the ground that plaintiff failed to allege with requisite particularity that such demand would have been futile. We affirm the dismissal of the action.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/healthways_COR_032411.pdf
Wednesday, March 23, 2011
Court Reviews Whether Individual Defendants are Additional Lessees Personally Liable Under a Commercial Lease
ASSOCIATED SHOPPING CENTER PROPERTIES, LTD. v. EDWARD H. HODGE ET AL. (Tenn. Ct. App. March 23, 2011)
The issue in this commercial real estate lease dispute is whether the individual defendants are additional lessees and, thus, personally liable under the lease. Plaintiff, the lessor of retail space, filed this action against the three defendants when the limited liability company, Decor Fabrics, LLC, a lessee, breached the lease by failing to pay rent for the term of the lease. The individual defendants denied liability, asserting that Decor Fabrics, LLC, was the only lessee.
The trial court found that the lease unambiguously identifies each of the individual defendants as additional lessees and assessed damages against them for breach of the lease, including the plaintiff's attorneys fees. Only one of the defendants appealed. He asserts that the trial court erred by finding the lease unambiguous as to the identify of the lessee(s) and by failing to consider the parties' conduct to conclude that Decor Fabrics, LLC, was the only lessee. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hodgee_032311.pdf
The issue in this commercial real estate lease dispute is whether the individual defendants are additional lessees and, thus, personally liable under the lease. Plaintiff, the lessor of retail space, filed this action against the three defendants when the limited liability company, Decor Fabrics, LLC, a lessee, breached the lease by failing to pay rent for the term of the lease. The individual defendants denied liability, asserting that Decor Fabrics, LLC, was the only lessee.
The trial court found that the lease unambiguously identifies each of the individual defendants as additional lessees and assessed damages against them for breach of the lease, including the plaintiff's attorneys fees. Only one of the defendants appealed. He asserts that the trial court erred by finding the lease unambiguous as to the identify of the lessee(s) and by failing to consider the parties' conduct to conclude that Decor Fabrics, LLC, was the only lessee. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hodgee_032311.pdf
Friday, March 18, 2011
Two New Loan Initiatives Announced by Small Business Administration
Two New Loan Initiatives Announced by SBA: Small Loan Advantage and Community Advantage 7(a) Loan
SBA is committed to expanding access to capital for small businesses and entrepreneurs in underserved communities so that we can help drive economic growth and job creation. In line with that, SBA is rolling out two new initiatives on February 15, 2011, aimed at increasing the number of loans in these communities.
SBA and U.S. Department of Commerce studies have shown the importance of lower dollar loans to small business formation and growth in underserved communities. With that in mind, and building on the agency's "Advantage" platform, both Small Loan Advantage and Community Advantage will offer a streamlined application process for SBA 7(a) loans up to $250,000.
Published by the Tennessee Small Business Development Center, referencing:
http://www.sba.gov/advantage.
See also:
http://www.sba.gov/category/navigation-structure/loans-grants/small-business-loans/sba-loan-programs/7a-loan-program.
SBA is committed to expanding access to capital for small businesses and entrepreneurs in underserved communities so that we can help drive economic growth and job creation. In line with that, SBA is rolling out two new initiatives on February 15, 2011, aimed at increasing the number of loans in these communities.
SBA and U.S. Department of Commerce studies have shown the importance of lower dollar loans to small business formation and growth in underserved communities. With that in mind, and building on the agency's "Advantage" platform, both Small Loan Advantage and Community Advantage will offer a streamlined application process for SBA 7(a) loans up to $250,000.
Published by the Tennessee Small Business Development Center, referencing:
http://www.sba.gov/advantage.
See also:
http://www.sba.gov/category/navigation-structure/loans-grants/small-business-loans/sba-loan-programs/7a-loan-program.
Wednesday, March 16, 2011
Supreme Court: FOIA does not extend personal privacy to corporations
The Supreme Court recently ruled that corporations have no right of personal privacy to prevent the disclosure of documents under the federal Freedom of Information Act. At issue is information gathered by the Federal Communications Commission during an investigation of AT&T's participation in the federal E-Rate program, which helps schools and libraries get Internet access. "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations," Roberts wrote. "We trust that AT&T will not take it personally."
Read the full story here:
http://www.wrcbtv.com/Global/story.asp?S=14163469
Read the full story here:
http://www.wrcbtv.com/Global/story.asp?S=14163469
Monday, March 14, 2011
General Assembly News: Bill would abolish ban on corporate donations
A measure that overhauls Tennessee's campaign finance laws would abolish a longstanding ban on donations from companies, in a move that supporters say would put businesses on an equal footing with labor unions.
"I think there should be parity," said state Rep. Glen Casada, R-Franklin, the bill's sponsor in the state House of Representatives.
But the legislation could give corporations and special interests more influence over Tennessee politics, say opponents, and a survey of campaign finance records shows Tennessee's largest companies are already big donors to campaigns through their political action committees.
The Tennessean has the story:
http://www.tennessean.com/article/20110306/NEWS02/103060385/1972/NEWS02/TN-Republicans-want-allow-direct-corporate-donations
"I think there should be parity," said state Rep. Glen Casada, R-Franklin, the bill's sponsor in the state House of Representatives.
But the legislation could give corporations and special interests more influence over Tennessee politics, say opponents, and a survey of campaign finance records shows Tennessee's largest companies are already big donors to campaigns through their political action committees.
The Tennessean has the story:
http://www.tennessean.com/article/20110306/NEWS02/103060385/1972/NEWS02/TN-Republicans-want-allow-direct-corporate-donations
Supreme Court Reviews Whether a Nonprofit Foundation’s Records are Available Under the Public Records Act
THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION FOUNDATION, INC. (Tenn. February 28, 2011)
Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act. The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in chancery court, which held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed.
We hold that the nonprofit foundation's records are not available pursuant to the Tennessee Public Records Act because it is not the functional equivalent of a government agency. We also hold that its records are not available pursuant to Tennessee Code Annotated section 10-7-503(d) (1999) because the nonprofit foundation has no more than two full-time staff members. We therefore reverse the judgment of the lower courts and dismiss the case.
Opinion Available At:
http://www.tba2.org/tba_files/TSC/2011/gautreauxt_022811.pdf
Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act. The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in chancery court, which held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed.
We hold that the nonprofit foundation's records are not available pursuant to the Tennessee Public Records Act because it is not the functional equivalent of a government agency. We also hold that its records are not available pursuant to Tennessee Code Annotated section 10-7-503(d) (1999) because the nonprofit foundation has no more than two full-time staff members. We therefore reverse the judgment of the lower courts and dismiss the case.
Opinion Available At:
http://www.tba2.org/tba_files/TSC/2011/gautreauxt_022811.pdf
Monday, February 28, 2011
Court Reviews Whether Employee’s Termination was For Cause and Whether Employee was Entitled to Severance Pay
DEAN G. HAFEMAN v. PROTEIN DISCOVERY, INC., A TENNESSEE CORPORATION (Tenn. Ct. App. February 28, 2011)
This is a breach of employment contract action filed by Dean G. Hafemen ("the Employee") against Protein Discovery, Inc., a Tennessee corporation ("the Employer" or "the Company") after the Employer terminated the Employee's employment before the expiration of the term of his "Amended and Restated Employment Agreement" ("the Agreement").
The complaint alleges that the Employee is entitled to certain severance benefits provided for in the Agreement for any termination that does not qualify as a "Termination For Cause" as defined in the Agreement. After a bench trial, the court found that the termination was for cause and entered judgment in favor of the Employer. The Employee appeals. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hafemand_022811.pdf
This is a breach of employment contract action filed by Dean G. Hafemen ("the Employee") against Protein Discovery, Inc., a Tennessee corporation ("the Employer" or "the Company") after the Employer terminated the Employee's employment before the expiration of the term of his "Amended and Restated Employment Agreement" ("the Agreement").
The complaint alleges that the Employee is entitled to certain severance benefits provided for in the Agreement for any termination that does not qualify as a "Termination For Cause" as defined in the Agreement. After a bench trial, the court found that the termination was for cause and entered judgment in favor of the Employer. The Employee appeals. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hafemand_022811.pdf
Sunday, February 27, 2011
Businesses Shift Strategy in Hiring Lawyers
The recession has brought changes to the business of law as companies try to find ways to lower fees and enter into less costly billing arrangements. Industry experts say some of these strategies include using junior associates at a lower billing rate, engaging different lawyers for specific issues, and paying by the hour rather than by retainer. In a New York Times article reprinted in the Memphis Commercial Appeal, business consultants and law firm managers offer their insights for making legal services affordable for small businesses.
Read the story here: http://www.commercialappeal.com/news/2011/feb/13/strategies-shift-in-hiring-lawyers/
Read the story here: http://www.commercialappeal.com/news/2011/feb/13/strategies-shift-in-hiring-lawyers/
Friday, February 25, 2011
Court Reviews an Interlocutory Appeal Regarding Class Certification
DONALD J. ROBERTS IRA, ET AL. v. PHILLIP H. MCNEILL, SR., ET AL. (Tenn. Ct. App. February 23, 2011)
This is an interlocutory appeal from a class certification. The named plaintiffs, former owners of preferred stock in Equity Inns, Inc., filed a class action against the company's former directors. Their amended complaint asserted breaches of the fiduciary duties allegedly owed to the preferred shareholders during the negotiation and approval of a merger. The trial court granted the plaintiffs' motion for class certification with respect to "[a]ll holders of Equity Inns preferred stock as of June 21, 2007." We vacate and remand for further consideration.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/robertsd_022311.pdf
This is an interlocutory appeal from a class certification. The named plaintiffs, former owners of preferred stock in Equity Inns, Inc., filed a class action against the company's former directors. Their amended complaint asserted breaches of the fiduciary duties allegedly owed to the preferred shareholders during the negotiation and approval of a merger. The trial court granted the plaintiffs' motion for class certification with respect to "[a]ll holders of Equity Inns preferred stock as of June 21, 2007." We vacate and remand for further consideration.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/robertsd_022311.pdf
Thursday, February 24, 2011
New 8(a) Regulations Limit Joint Ventures, Allow Higher Income
SBA has overhauled rules governing the 8(a) program, imposing new restrictions on joint ventures and raising limits on a business owner’s annual income and wealth. The final rule, published in the Feb. 11 Federal Register, is the first rewrite of 8(a) regulations in more than 10 years. It becomes effective March 14.
In a joint venture between an 8(a) firm and a non-8(a) partner, the 8(a) firm will be required to do at least 40% of the work done by the joint venture. Since the JV is required to perform at least 50% of the work on a contract, that means the 8(a) partner must perform at least 20% of the total contract. The current rule requires only that the 8(a) firm do a “significant portion” of the work. The non-8(a) partner may not take a second bite of the apple by serving as a subcontractor to the joint venture. The 8(a) partner in the JV must receive profits commensurate with the amount of work it performs.
SBA has indicated that the new JV rules were a response to suspicions that Alaska Native Corporations were passing through virtually all work to a large partner. Legislation is pending in Congress to restrict the size of sole source contracts awarded to Alaska Native and tribally owned 8(a) firms. Alaska Native Corporations and tribally owned companies will be required to report how their 8(a) contracts benefited their communities.
The Alaska firms have argued that their payments to impoverished Native people justify their special procurement preferences, but congressional investigators found that some Alaska companies paid only a few hundred dollars in dividends to Native shareholders. The owner of a company entering the 8(a) program will not be considered economically disadvantaged if his annual income exceeds $250,000, averaged over a three-year period. To remain eligible for the program, the owner’s annual income may not exceed $350,000. An individual may rebut a finding that he is not economically disadvantaged by showing that the high income was the result of an unusual event, such as an inheritance. Since the 8(a) owner usually must be the highest paid employee, SBA said the higher income limits will allow 8(a) firms to pay competitive salaries to other top-level executives. An owner will not be considered economically disadvantaged if his assets exceed $4 million at the time of application for the 8(a) program.
Complete article available with subscription to Set-Aside Alert
In a joint venture between an 8(a) firm and a non-8(a) partner, the 8(a) firm will be required to do at least 40% of the work done by the joint venture. Since the JV is required to perform at least 50% of the work on a contract, that means the 8(a) partner must perform at least 20% of the total contract. The current rule requires only that the 8(a) firm do a “significant portion” of the work. The non-8(a) partner may not take a second bite of the apple by serving as a subcontractor to the joint venture. The 8(a) partner in the JV must receive profits commensurate with the amount of work it performs.
SBA has indicated that the new JV rules were a response to suspicions that Alaska Native Corporations were passing through virtually all work to a large partner. Legislation is pending in Congress to restrict the size of sole source contracts awarded to Alaska Native and tribally owned 8(a) firms. Alaska Native Corporations and tribally owned companies will be required to report how their 8(a) contracts benefited their communities.
The Alaska firms have argued that their payments to impoverished Native people justify their special procurement preferences, but congressional investigators found that some Alaska companies paid only a few hundred dollars in dividends to Native shareholders. The owner of a company entering the 8(a) program will not be considered economically disadvantaged if his annual income exceeds $250,000, averaged over a three-year period. To remain eligible for the program, the owner’s annual income may not exceed $350,000. An individual may rebut a finding that he is not economically disadvantaged by showing that the high income was the result of an unusual event, such as an inheritance. Since the 8(a) owner usually must be the highest paid employee, SBA said the higher income limits will allow 8(a) firms to pay competitive salaries to other top-level executives. An owner will not be considered economically disadvantaged if his assets exceed $4 million at the time of application for the 8(a) program.
Complete article available with subscription to Set-Aside Alert
Thursday, February 17, 2011
Haslam Unveils First Legislative Agenda
Gov. Bill Haslam unveiled his first legislative agenda today. Among its provisions, the proposal would limit damages in civil suits against businesses as part of an effort to attract more companies to Tennessee.
Under the plan, non-economic damages would be capped at $750,000. Tony Thompson, a lobbyist for the Tennessee Association for Justice, responded saying the group is not convinced that civil damages are a problem in Tennessee or are keeping businesses from moving into the state.
http://www.knoxnews.com/news/2011/feb/17/haslam-unveil-legislative-package-thursday/?partner=newsletter_headlines
Under the plan, non-economic damages would be capped at $750,000. Tony Thompson, a lobbyist for the Tennessee Association for Justice, responded saying the group is not convinced that civil damages are a problem in Tennessee or are keeping businesses from moving into the state.
http://www.knoxnews.com/news/2011/feb/17/haslam-unveil-legislative-package-thursday/?partner=newsletter_headlines
Wednesday, January 26, 2011
Court Reviews Whether a Partnership Existed Between Two Parties
RICHARD SWECKER, et al., v. STEVEN MICHAEL SWECKER, et al., and, DINAH SLUDER, et al., IN RE: ESTATE OF JOSEPH JAMES SWECKER, STEVEN SWECKER, et al., v. RICHARD ALLEN SWECKER (Tenn. Ct. App. January 26, 2011).
Plaintiffs brought this action to establish a partnership with the deceased against the estate's personal representative and others. Defendants answered, denying the allegation that a partnership existed, and filed a counter-complaint, asserting the estate should be reimbursed for plaintiffs' mismanagement of the farm, and for monies the plaintiffs removed from the estate's bank account.
Following an evidentiary hearing, the Trial Court held that deceased and plaintiff had entered into a partnership and that the partnership would be wound up by the Court and the partnership assets distributed. Also, the Trial Court held that plaintiffs would be required to pay rent on the house they occupied on the farm for several years.
On appeal, we affirm the finding that a partnership existed, but reverse the Trial Court's holding that plaintiffs owed the estate rent for occupancy of the house on the farm. We remand, with directions to the Court to wind up the partnership.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/sweckerr_012611.pdf
Plaintiffs brought this action to establish a partnership with the deceased against the estate's personal representative and others. Defendants answered, denying the allegation that a partnership existed, and filed a counter-complaint, asserting the estate should be reimbursed for plaintiffs' mismanagement of the farm, and for monies the plaintiffs removed from the estate's bank account.
Following an evidentiary hearing, the Trial Court held that deceased and plaintiff had entered into a partnership and that the partnership would be wound up by the Court and the partnership assets distributed. Also, the Trial Court held that plaintiffs would be required to pay rent on the house they occupied on the farm for several years.
On appeal, we affirm the finding that a partnership existed, but reverse the Trial Court's holding that plaintiffs owed the estate rent for occupancy of the house on the farm. We remand, with directions to the Court to wind up the partnership.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/sweckerr_012611.pdf
Monday, January 24, 2011
TN Supreme Court Reviews Whether Taxpayer’s Capital Gains were Business Earnings that were Subject to the Excise Tax
BLUE BELL CREAMERIES, LP v. RICHARD ROBERTS, COMMISSIONER, DEPARTMENT OF REVENUE, STATE OF TENNESSEE (Tenn. January 24, 2011).
Taxpayer is a Delaware limited partnership that produces, sells, and distributes ice cream in Tennessee and elsewhere. At issue in this appeal is the Tennessee Department of Revenue's excise tax assessment on capital gains from a one- time stock transaction between Taxpayer and its holding company. Taxpayer sought a refund in chancery court, challenging the validity of the tax assessment on statutory and federal constitutional grounds. Both Taxpayer and the Department moved for summary judgment. The chancery court granted summary judgment to Taxpayer, and the Court of Appeals affirmed the judgment.
Based on the uncontested facts in the record, we hold that Taxpayer's capital gains were business earnings pursuant to the functional test provided in Tennessee Code Annotated section 67-4-2004(1) (Supp. 2000) and therefore subject to the excise tax. Additionally, we hold that the tax assessment was constitutional pursuant to the unitary business principle. We therefore reverse the judgment of the Court of Appeals and enter summary judgment for the Department. We remand to the trial court to determine the amount of excise tax related to Taxpayer's capital gains.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2011/bluebell_012411.pdf
Taxpayer is a Delaware limited partnership that produces, sells, and distributes ice cream in Tennessee and elsewhere. At issue in this appeal is the Tennessee Department of Revenue's excise tax assessment on capital gains from a one- time stock transaction between Taxpayer and its holding company. Taxpayer sought a refund in chancery court, challenging the validity of the tax assessment on statutory and federal constitutional grounds. Both Taxpayer and the Department moved for summary judgment. The chancery court granted summary judgment to Taxpayer, and the Court of Appeals affirmed the judgment.
Based on the uncontested facts in the record, we hold that Taxpayer's capital gains were business earnings pursuant to the functional test provided in Tennessee Code Annotated section 67-4-2004(1) (Supp. 2000) and therefore subject to the excise tax. Additionally, we hold that the tax assessment was constitutional pursuant to the unitary business principle. We therefore reverse the judgment of the Court of Appeals and enter summary judgment for the Department. We remand to the trial court to determine the amount of excise tax related to Taxpayer's capital gains.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2011/bluebell_012411.pdf
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