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Pepper Law, PLC was recently successful in having the Business Court, located in Davidson County, pierce the veil of a limited partnership to hold the limited partner personally liable for a judgment rendered years earlier against the limited partnership. No Tennessee appellate court has yet addressed whether or not the veil of a limited partnership can be pierced, and the decision of the Business Court is believed to be the first time a Tennessee court has ruled on the issue.

Tennessee has long-recognized that the corporate veil of a corporation may be pierced such that an individual may be held liable for the debts of the corporation. As well, in a 2012 opinion, the Court of Appeals of Tennessee ruled that the veil of a limited liability company could be pierced in the case of Edmunds v. Delta Partners, L.L.C., 403 S.W.3d 812.

In arguing that the piercing of the veil of a limited partnership to hold a limited partner individually liable was warranted, we relied upon several non-Tennessee cases. Of particular weight in the Business Court’s decision was the opinion of the bankruptcy court for the Southern District of New York in In re Adelphia Commc’ns Corp., 376 B.R. 87 (2007).  In the case before the Business Court, the limited partnership against whom we had earlier obtained a judgment, and for which we sought to pierce the veil to hold its limited partner liable, was a Delaware limited partnership.  In the Adelphia case, the limited partnership at issue was also a Delaware limited partnership.

In the Adelphia case, the court pointed out that there was nothing in the Delaware Limited Partnership Act which prohibited the piercing of the veil of a limited partnership.  The Business Court approved of the reasoning in the Adelphia case, noting that Tennessee appellate decisions had approved of Tennessee courts looking to Delaware courts for guidance on corporate law. In addition to the bankruptcy court in the Adelphia case, appellate courts in New Jersey and Virginia have ruled that the veil of a limited partnership may be pierced to hold a limited partner liable.

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Often, in trade secrets cases, a pivotal issue is whether or not what the plaintiff claims is a trade secret is, in fact, a trade secret under the Tennessee Uniform Trade Secrets Act (“TUTSA”). TUTSA’s definition of “trade secrets” includes “information” which is “technical, nontechnical, or financial data, a formula, pattern, compilation, program, device, method, technique, process or plan” that has independent economic value because it is not generally known or readily accessible.  To qualify as a trade secret, the plaintiff must also prove that there were “reasonable efforts” taken to keep the information secret.

Here are some basic rules and guidelines used in Tennessee trade secrets cases for determining whether information constitutes a trade secret:

  • Just because a party calls certain information a trade secret does not mean that it will qualify as a trade secret after the court reviews other facts and applies the TUTSA
  • A former employee’s goodwill with customers or the fact that the former employee was the face of the company are not trade secrets because they are not information (an employer may protect against a former employee’s use of goodwill developed while the employee was employed by a non-competition/non-solicitation agreement)
  • Just because a product or process can be reverse engineered does not necessarily mean that it will not qualify as a trade secret. If the plaintiff can prove that reverse engineering would be time-consuming or very expensive, the product or process may still be entitled to trade secret protection
  • A former employee’s remembered information about customers, pricing, vendors and the like is not a trade secret
  • The degree of the egregiousness of the former employee’s or new employer’s conduct always has some effect on the court’s decision. For example, if a former employee took information improperly and passed it on to her new employer, it is more difficult to argue that the information taken was not a trade secret. After all, if it was not valuable and secret, why take it?
  • The extent that the information is known to the public will affect the decision as to whether the information is a trade secret
  • Whether the owner of the information has taken steps to keep it secret will affect the decision as to whether it is a trade secret
  • The economic value of the information will affect the decision as to whether the information is a trade secret
  • Even if components of the information, standing alone, may not be trade secrets, the aggregation, compilation or formatting of information may be
  • Whether information is, or is not, a trade secret is a question of fact

The below summary of five different trade secret cases is helpful in understanding what might, and what might not, qualify as a trade secret under the Tennessee Uniform Trade Secrets Act.

Eagle Vision, Inc. v. Odyssey Medical, Inc. (Tenn. Ct. App. 2002): The Plaintiff developed and marketed punctul plugs for eyes. For a number of years, it had a contractual relationship with the Defendant, which manufactured the plugs for it. The Plaintiff shared design specifications with the Defendant as well as prototype punctal plugs. The design specifications were marked “confidential.” The relationship between Plaintiff and Defendant ended and Defendant began making and selling punctal plugs. Defendant offered evidence that it could easily reverse engineer the punctal plugs with a certain device it possessed. Plaintiff claimed that it was impossible to reverse engineer the punctal plugs. The court held that the question of whether or not the information which Defendant had allegedly misappropriated was a trade secret was a question of fact for the jury. Continue reading →

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Zoning laws and zoning maps are not caste in stone. They are subject to change for any number of reasons including recognition by a legislative body of a change in the character of an adjacent area. In Middle Tennessee these days, it is not at all fantastical for a land owner to expect a change in the current zoning of his or her property, which rezoning would allow new uses and development parameters.

In many cases, land owners’ real estate increases in value when a zoning change is enacted. For example, the value of a piece of property might dramatically increase when its zoning is changed from some form of residential to some form of commercial or industrial use. Can a possible change in zoning that would increase the value of a piece of property that is the subject of a condemnation case be considered by a jury?  In Tennessee, the answer is “yes.”

A couple of Tennessee eminent domain cases are excellent authority for the position that a potential change in zoning may be considered by a jury. In Shelby County v. Mid-South Title Company, Inc. (Tenn. Ct. App. 1980), the property owner’s property was zoned R-1 (single family residential).  The condemning authority, Shelby County, appealed a jury verdict on the grounds that the trial judge should not have permitted the property owner’s experts to testify as to the value of the land being taken based on appraisals wherein they considered comparable sales of commercially zoned properties.

At trial in the Shelby County case, the proof was that the county was taking 1.842 acres of the property owned by the defendant land owner. All three of the land owner’s expert witnesses testified that the property at issue had immediate and imminent commercial value that would be taken into account by any potential buyer. These opinions were based on their opinions that the property would be rezoned for commercial use in the near future. Consistent with the aforementioned opinions, each expert based his opinion of the value of the land being taken on appraisals based on comparable commercial sales.  The three experts for the county based their appraisals strictly on comparable residential sales because they believed that any commercial potential for the subject property was far-off.

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In a recent case decided by the Court of Appeals of Tennessee in which an insurance agency was sued for failure to procure an adequate commercial general liability insurance policy, the court reversed some of the trial court’s rulings on expert testimony, which resulted in the summary judgment in favor of the defendant insurance agency also being reversed. Since, in almost all cases against insurance agents and agencies, a plaintiff must have expert testimony to establish the standard of care and a breach of it by the agent or broker, the court’s analysis and rulings related to the qualifications and areas of testimony of the plaintiff’s insurance expert are very helpful.

Here are the basic facts related to the procedural history of the case:

  • Merit Construction was sued for damages by JAG arising out of its work on a project
  • Merit agreed to settle the suit for over three million dollars
  • The insurance company which had insured Merit under a commercial general liability policy was placed in a receivership (meaning it could not pay claims of its insureds, like Merit)
  • Merit assigned its rights against its insurance agent (“Agent”) which had procured the policy at issue to JAG
  • JAG sued the Agent on the basis that it had been negligent with respect to obtaining coverage for Merit
  • To make its case, JAG employed an expert in the insurance industry named Bahr
  • The trial court made a ruling which excluded several of the opinions of Bahr which were necessary for JAG’s professional negligence claims against the Agent to survive
  • Without the expert testimony which supported that the Agent had breached the applicable standard of care for insurance brokers and insurance agents and which the trial court excluded, JAG was unable to defend a motion for summary judgment which the trial court granted

Here are the basic facts related to the alleged negligence of the Agent:

  • Merit asked the Agent to obtain a commercial general liability policy from a company with a rating from A.M. Best Company of at least “A”
  • A.M. Best Company is widely recognized as providing reliable ratings as to the financial stability of insurance companies
  • The Agent presented Merit with three policy options, one of which was from a company, Highlands Insurance, which had an A.M. Best Company rating of “B++”
  • The Agent represented to Merit that the coverage through Highlands would be “A” rated if a “cut-through” endorsement was obtained to go with it
  • A “cut-through” endorsement is essentially reinsurance
  • Merit understood that, with the cut-through endorsement, Highland’s rating would be raised to “A”
  • After Merit purchased the policy, Highland’s rating was downgraded to a “B” from “B++”
  • The Agent did not inform Merit of the downgrade or offer to move its coverage to another company with a higher rating
  • Highlands went into receivership

 

Bahr, the expert for JAG, offered three opinions which the trial court ruled he was not qualified to make, thereby effectively excluding them:

  1. That the Agent breached the standard of care when it offered a less than “A” rated policy and informed Merit that the cut-through endorsement raised the rating to “A”
  2. That the Agent breached the standard of care when it failed to explain thoroughly the cut-through endorsement, how it worked, and by not obtaining a signed letter from Merit that it understood the same
  3. That the Agent breached the standard of care when it failed to notify Merit that Highland’s rating had fallen by two grades (from “B++” to “B”)

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It is not unusual for construction litigation between owners, contractors and subcontractors to involve defenses and claims based on alleged untimely completion. The basics of the law in Tennessee related to project completion is a topic about which it is worthwhile for owners, contractors and subcontractors to have some practical knowledge.  A good place to start to gain that knowledge is an opinion in a construction case involving claims of breach of contract, a mechanics’ and materialmen’s’ lien, and the Tennessee Prompt Pay Act.  That case is Madden Phillips Construction, Inc. v. GGAT Development Corporation, and here are the basic facts of that case:

  • Madden Phillips (“Contractor”) and GGAT (“Owner”) entered into a construction contract for the construction of a residential subdivision
  • In the written construction contract, Contractor agreed to perform several scopes of work including earthwork and construction of infrastructure for utilities and roads
  • The written contract contained neither a date for completion nor a “time is of the essence” clause
  • Contractor began work in May of 2004, but suspended its work in July of 2004 based on Owner’s failure to perform work necessary for Contractor to perform its work
  • After forty-five days, Contractor resumed construction, but continued to have problems completing its work because of the failure of Owner to complete its work
  • After Contractor had performed about ninety five percent (95%) of its work, Owner terminated the contract and refused to pay

As a defense to Contractor’s claims, Owner argued that Contractor had materially breached the construction contract by failing to complete the work in eight months. The trial court rejected this defense based on three findings of fact. First, it found that the parties’ contract did not contain a term that the work had to be completed in eight months. Second, it found that the parties had not agreed to a “time is of the essence” term for completion. Third, any right Owner might have had to terminate Contractor for failing to perform its work on a timely basis was waived by Owner’s actions and inactions, including, failing to provide fill which had to be in place before Contractor could perform its work.

The court of appeals affirmed the aforementioned ruling of the trial court, and, in doing so, it expounded on Tennessee legal principles that are applicable in cases where timeliness of completion is at issue. First, it pointed out that contract clauses which state that “time is of the essence” and contract clauses which set forth a date by which the parties agree that the work will be completed have different legal effects. Here is how:  If a construction contract contains a date by which the work will be completed, but does not contain a “time is of the essence” provision, then a failure to complete the work by the agreed date will not rise to a material breach. A non-material breach does not allow the non-breaching party to terminate a contract and refuse to pay, which is what Owner did.

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A recent Court of Appeals decision involving a claim for breach of contract related to a flat fee promotion agreement illustrates how Tennessee courts are not permitted, except in limited situations involving non-compete agreements, to re-write contracts or to add terms to contracts.  Here are the basic facts:

  • Gregg wanted to pursue a career in country music
  • Cupit was a producer with a studio
  • Gregg and Cupit entered into a “Production Agreement”
  • The Production Agreement provided that Gregg would pay Cupit a “flat fee” of $100,000 per single for three singles which Cupit would “nationally promote”
  • The Production Agreement provided that the $300,000 would be used at the “sole discretion” of Cupit
  • The Production Agreement provided that Cupit made no guarantees of success because the music business was a “speculative business”
  • Cupit undertook to promote Gregg in various ways, including having its principal give him singing lessons; incurring expenses for Gregg’s appearance on a television show; producing a music video; arranging various performances at country music events; employing a publicist; and having a Cupit employee devote time to communicating with radio stations to promote each song Gregg recorded
  • Gregg never had any success with his career

Gregg sued Cupit for breach of contract. He claimed that, because Cupit could only prove that it had expended an amount on promotion which was far less than the money Gregg had paid it, it had breached the contract.

The trial court held for Gregg. In doing so, it invoked the implied duty of good faith and fair dealing that is, by law, part of every Tennessee contract. It held that Gregg was entitled to an award of the difference between what he had paid Cupit and the amount which Cupit could prove it spent on promotion for Gregg. The amount awarded by the trial court was $223,069.

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Many Tennessee Limited Liability Companies (“LLCs”) are set up, for whatever reason, so that their operating agreements do not provide for the buying out or expulsion of a member, whether pursuant to a mandatory buy-sell clause or pursuant to a clause that sets forth conduct which is grounds for expulsion. In fact, quite a few Tennessee LLC’s have members who have never executed an operating agreement.

If there is no mandatory buy-sell provision in an operating agreement for an LLC pursuant to which a member can be forced to sell his or her interest (or to buy out someone else’s), members looking to get rid of another member must look to the provisions of the Tennessee Revised Limited Liability Company Act (the “Act”). The Act, T.C.A. §48-249-503(6), provides the limited circumstances which permit a court to expel involuntarily an LLC member.  They are:

  • Where the member has engaged in wrongful conduct that has adversely and materially affected the LLC’s business
  • Where the member has willfully and persistently committed a material breach of the LLC documents
  • Where the member has willfully and persistently committed a material breach of the duties owed by the member to the LLC or to the other members, as set forth in T.C.A. §48-249-403
  • Where the member has engaged in conduct relating to the LLC’s business that makes it not reasonably practicable to carry on business with the member

As of this blog, there is no opinion from any Tennessee appellate court which applies, or further explains, the above statute. Some conduct would obviously warrant expulsion under the above statute, e.g. stealing from other members, a criminal conviction for a felony involving dishonest conduct, or repeated and intentional usurpation of opportunities available to the LLC.  There is, however, quite a bit of gray area when it comes to what a Tennessee court could determine amounts to circumstances justifying an expulsion under the above statute.  The case law from other states which interprets the above statute (which has been adopted uniformly by many other states) is also rather limited.

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When a Tennessee company attempts to enforce a non-compete or non-solicitation agreement against a former employee or independent contractor who served in a sales or marketing capacity, it is almost certain that the company will allege that the former representative had become the “face of the company” to that company’s customers. If the company can prove that argument, it is highly likely that its non-compete or non-solicitation agreement will be upheld.

Not all non-competition and non-solicitation agreements are enforceable in Tennessee, and many have been held to be unenforceable. In order to be able to enforce such agreements, a company must be able to show that it has a “protectable interest.”  To have a protectable interest, a company must show that the former employee’s or contractor’s relationship and work with the company puts the person in the position to do more than just engage in ordinary competition against the company.  The company for whom the former salesperson worked must prove that the relationship put the former salesperson in a position that gives that person an unfair competitive advantage over the company.

Under Tennessee law, a court must look to several factors to determine whether the former employer has a protectable interest such that a non-compete or non-solicitation agreement is enforceable. One of those factors is whether the former employee, by virtue of the goodwill of the former employer, had developed “special relationships” with the former employer’s customers such that the former salesperson was so closely associated with the former employer that he or she had become the “face of the company” to those customers.

To understand how Tennessee courts analyze the “face of the company” factor, it is helpful to look at a few Tennessee non-compete cases.

CASES WHERE FORMER EMPLOYEE FOUND TO BE THE “FACE OF THE COMPANY” Continue reading →

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The Court of Appeals of Tennessee, in a recently decided will contest case, In re Estate of Ida Lucille Land, made what appears to be some new law on what circumstances can establish a confidential relationship between the person who made the Will and the person or persons alleged to have procured the Will through undue influence.  Here are the basic facts of the case:

  • Ida Land (“Mrs. Land”) died at age 99 in August of 2015
  • At the time of her death, Mrs. Land had no surviving spouse or children, but did have a surviving niece
  • The surviving niece’s name was Ms. Allen
  • In about 1986, Mrs. Land married a Mr. Land, who did have children by a different marriage (“Mr. Land’s Children”)
  • Mr. Land had a sister named Pauline Hill
  • Pauline Hill was married to Kenneth Hill
  • Mr. Land’s Children where, therefore, the Hills’ nieces and nephews
  • Prior to her death, Mrs. Land had expressed to her niece, Ms. Allen, that she did not want Mr. Land’s Children to receive any of her assets
  • There was compelling proof that not only did Mrs. Land and Ms. Allen have a long-standing and loving relationship for many years, but also, that, before Mr. Land’s Children intervened, Ms. Allen, for many years, spent substantial amounts of time caring for Mrs. Land on a regular and unselfish basis
  • Around 2011, Mr. Land’s Children began intervening in the relationship between Ms. Allen and Mrs. Land and were able to keep Ms. Allen away from Mrs. Land for much of the time
  • In May of 2011, Mrs. Land executed the Will which was challenged
  • It was undisputed that the Will was done by a lawyer who had a prior relationship with one of Mr. Land’s Children
  • It was undisputed that Mrs. Hill and Mr. Land’s Children took Mrs. Land to the lawyer who prepared the Will
  • Kenneth Hill was named as Executor of the Will
  • The Will left Mrs. Land’s entire estate to Mr. Land’s Children

 

At the conclusion of the proof, the trial court instructed the jury to answer three questions:

“1.         Did Judy Allen, by a preponderance of the evidence, prove that there was undue influence arising   from a confidential relationship between Kenneth Hill and Pauline Hill and Mrs. Land?

  1. Did Judy Allen, by a preponderance of the evidence, prove that Kenneth Hill and Pauline Hill unduly profited from the Will?
  2. Did Kenneth Hill and Pauline Hill, by clear and convincing evidence, prove that the transaction was fair?”

 

The jury answered “yes” to the first two questions and “no” to the third.

On appeal, the Executor argued that the trial court erred by holding that the fact that he was named as Executor created a confidential relationship between himself and Mrs. Land. Under Tennessee law, the finding of a confidential relationship is critical, and, in my experience, frequently outcome determinative.  That is so because, where there is a confidential relationship followed by a transaction which benefits the one standing in a confidential relationship to the one who gave the benefit, the one who is benefitted must then prove, by clear and convincing evidence, that the transaction was fair.  While Tennessee courts speak of a “transaction,” keep in mind that the execution of a Will, and its terms, fall in the category of a “transaction.”

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Sales representatives, whether they are employees or independent contractors, are too frequently faced with situations where the businesses which owe them commissions refuse to pay them or refuse to pay them the full amounts owed. While, unfortunately, sales representatives do sometimes get beaten out of commissions which they are rightfully owed, sales representatives should take a hard look at their situations before giving up on receiving payment for sales commissions.

Here are some legal points for sales reps to consider when faced with a refusal to pay:

A VERBAL CONTRACT TO PAY COMMISSIONS IS ENFORCEABLE

We have had several cases over the years where a sales representative was not paid and where the refusal to pay was on the basis that there was no written agreement to pay or to pay the percentage which was claimed to be owed. In such cases, sales reps should bear in mind that an agreement to pay commissions does not have to be in writing. Under Tennessee law, oral or verbal agreements to pay commissions are just as enforceable as written ones.  The problem with oral contracts is that people lie or, to be more euphemistic, they remember things differently.

The problem of the party who owes the commission remembering the parties’ agreement differently can sometimes be overcome by evidence of the parties’ course of conduct. For example, we had a case where a manufacturer claimed that it did not have a written agreement to pay its manufacturer’s representative commissions on pre-fabricated metal building materials. The manufacturer’s defense fell apart because our client had information on the total value of each sale he had made and he had copies of checks from the manufacturer which showed that, for over two years, he had been paid the percentage he claimed he was owed on all of the projects he sold. While most defenses don’t fall apart that easily, that case demonstrates how a course of conduct can make it difficult for a manufacturer, employer or other business to renege on the payment of sales commissions.

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