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Vanquish Express, LLC v. Dixie Ohio Xpress, LLC

Court of Appeals of Tennessee, Nashville

December 20, 2019

VANQUISH EXPRESS, LLC
v.
DIXIE OHIO XPRESS, LLC, ET AL.

          Session September 4, 2019

          Appeal from the Circuit Court for Sumner County No. 2016-CV-389 Joe Thompson, Judge

         This is an appeal from the trial court's denial of the defendants' motion to set aside an agreed order, which, among other things, dismissed the plaintiff's complaint with prejudice. Defendants alleged that their former counsel entered into the agreement without their authorization. Finding that the defendants submitted no evidence to support the allegation, the trial court denied the motion. Defendants appeal. We affirm.

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

          Casey A Long, Lawrenceburg, Tennessee, for the appellants, Joseph D. Powell, and Dixie Ohio Xpress, LLC.

          William L. Moore, Jr., Gallatin, Tennessee, for the appellee, Vanquish Express, LLC.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         On September 15, 2015, Vanquish Express, LLC ("Plaintiff") entered into a Lease Agreement, an Asset Purchase Agreement, and an Employment Agreement with Dixie Ohio Xpress, LLC ("DOX") and Joseph D. Powell (together, "Defendants"). Plaintiff is an intrastate transportation and hauling services company. Mr. Powell is the chief manager of DOX, which is similarly engaged in the trucking and shipping industry. Per the Lease Agreement, Plaintiff leased from Defendants a parcel of property (the "Property") containing a building, a shop, and a yard; per the Asset Purchase Agreement, Plaintiff agreed to purchase from Defendants certain items of personal property for a total of $30, 000.00; and, per the Employment Agreement, Plaintiff hired Mr. Powell to manage the transportation and shipping operations of the company.[1] Additionally, Mr. Powell entered into a covenant not to compete with Plaintiff during the term of his employment and for a period of twenty-four months thereafter.

         On April 4, 2016, Mr. Powell was terminated from his employment with Plaintiff. The letter notifying Mr. Powell of his termination provided that Plaintiff had received numerous complaints from co-workers and current customers regarding his negative language and behavior. The letter also provided that, on March 14, 2016, Plaintiff had notified Mr. Powell that he needed to vacate his living quarters on the Property by March 28, 2016.[2] However, by April 4, 2016, Mr. Powell had not vacated the Property, and he had informed Plaintiff's CEO that he did not intend to do so. On April 11, 2016, Plaintiff filed a Complaint and Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction and for Damages (the "Complaint") against Defendants in the Sumner County Circuit Court (the "trial court"). In the Complaint, Plaintiff alleged that Mr. Powell had breached the covenant not to compete by directly soliciting Plaintiff's current customers, had intentionally interfered with the Property by failing to vacate the premises, and had refused to disclose the location of trailers purchased by Plaintiff. The trial court issued the temporary restraining order on the same day, prohibiting Defendants from threatening or harassing Plaintiff's employees, making disparaging statements about Plaintiff's business to current customers, soliciting Plaintiff's existing or former customers, violating the covenant not to compete, interfering with Plaintiff's business operations, copying or retaining Plaintiff's business files, disclosing confidential information concerning Plaintiff's customers, and damaging, destroying, or disposing of Plaintiff's property. The order further required that Mr. Powell vacate the Property. On April 22, 2016, the trial court entered an Agreed Order on Temporary Injunction, resetting the matter to May 5, 2016 and keeping the temporary restraining order in effect until that time. Defendants filed a Motion to Lift Restraining Order on August 19, 2016, which the trial court granted on October 17, 2016.

         On March 7, 2017, the trial court entered an Agreed Order of Compromise and Settlement (the "Agreed Order"), wherein it was agreed that the Complaint would be dismissed with prejudice. Additionally, the Agreed Order provided that Plaintiff would pay to the trust account of Defendants' attorney, Thomas Boyers, V, the amount of $4, 000.00 "in full satisfaction for the assets purchased by way of the Asset Purchase Agreement . . . and in full satisfaction of any and all rent for the months of June 2016, and July 2016." The Agreed Order also provided the following: that Defendants release all right, title, and interest in all of the property listed in the Asset Purchase Agreement; that Mr. Powell could retain all of the trailers currently in his possession; and that Mr. Powell was released from any non-compete provisions contained in the Asset Purchase Agreement and the Employment Agreement.

         On March 17, 2017, Defendants retained new counsel, Casey Long, and filed a Sworn Motion to Set Aside Agreed Order of Compromise and Settlement ("Motion to Set Aside") pursuant to Tennessee Rule of Civil Procedure 60.02 sections (1), (2), and (5), alleging that their previous counsel, Mr. Boyers, had entered into the Agreed Order without their authorization. Specifically, Defendants claimed that they did not authorize Mr. Boyers to accept the amount of $4, 000.00 in satisfaction of the assets intended to be purchased through the Asset Purchase Agreement and that they had not agreed to release all right, title, and interest in all of the property listed in the Asset Purchase Agreement. Plaintiff filed a Response in Opposition to the Motion to Set Aside, asserting that Defendants failed to provide any facts in support of their claim that Mr. Boyers had entered into the Agreed Order without their authorization. On September 20, 2018, the trial court entered its final order, denying Defendants' Motion to Set Aside. In its order, the trial court first noted that, because Defendants filed their Motion to Set Aside within 30 days of the entry date of the judgment approving the Agreed Order, the motion was analyzed under Tennessee Rule of Civil Procedure 59.04 rather than Rule 60.02. Secondly, the trial court concluded that Defendants failed to provide any facts or evidence to support their claim that their former attorney had acted without their authorization. Defendants timely appealed.

         On November 26, 2018, Defendants filed a Notice of Designation of Record with the trial court, stating that they would not file a transcript of the proceedings but that they would file a statement of the evidence. However, on January 3, 2019, Defendants filed a Notice with the trial court, stating that ...


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