Opinion FlashMarch 14, 2002
Volume 8 Number 047
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.
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Howard H. Vogel
WAL-MART STORES, INC., ET AL v. DANIEL WILSON Court:TSC - Workers Comp Panel Attorneys: Allen, Kopet & Boyd, PLLC Nashville, Tennessee, for the appellant, Wal-Mart Stores, Inc. Farrar & Holliman Lafayette, Tennessee, for the appellee, Daniel Wilson. Judge: GAYDEN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded permanent partial disability benefits based on the functional equivalent of 40% to the employee's left arm and 60% to his right arm. The court based its findings upon the conclusions of a local doctor not presented as a panel option to the employee. The employer contends that the trial court erred in 1) interpreting the appropriate composition for a medical panel under Tenn. Code Ann. S 50-6-204 and (2) assessing permanent partial disability benefits. As discussed below, the Panel has concluded that the judgment of the trial court should be affirmed on both issues. http://www.tba.org/tba_files/TSC_WCP/walmartvwilson.wpd
CONISTER TRUST LTD. v. BOATING CORPORATION OF AMERICA and VILLAS-AFLOAT, LTD. Court:TCA Attorneys: Todd E. Panther, Nashville, Tennessee, for the appellant, Conister Trust Ltd. Steven C. Douse, Nashville, Tennessee, for the appellees, Boating Corporation of America and Villas-Afloat, Ltd. Judge: COTTRELL First Paragraph: The buyer of three boats that were to be built pursuant to specific instructions defaulted on payment for the second and third boats by failing to pay the entire purchase price of the boats. The seller resold the two boats and recovered its damages caused by the buyer's breach. A creditor of the buyer, who furnished funds for the purchase of the first two boats, sought the excess proceeds from the sale of the second boat asserting that it had an unperfected security interest. Because the buyer did not attain rights in the collateral sufficient to meet the requirements for attachment of a security interest, the creditor is not entitled to distribution of the proceeds under Article 9 of the Uniform Commercial Code. Instead, the rights of the buyer and seller are governed by Article 2. The creditor was entitled to assert the buyer's right to restitution of partial payments, and the seller was entitled to recover its damages from the resale of the two boats. The seller also had a right of setoff which it exercised to recover losses on the third boat from moneys realized in the sale of the second boat. Accordingly, we affirm the trial court. http://www.tba.org/tba_files/TCA/conistertrust.wpd
FIFTH THIRD LEASING COMPANY, v. CHEROKEE PONTIAC, BUICK, OLDS, GMC TRUCKS, LLC. Court:TCA Attorneys: C. Mark Troutman, LaFollette, Tennessee, for Appellant. Rodney A. Fields, and Shannon van Tol, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court entered summary judgment for lessor against dealer under contract to purchase vehicles from dealer. Dealer's counter-complaint for damages was dismissed. Dealer appeals dismissal, contending claim sounds in tort and/or limitation of liability in contract is unenforceable. We affirm. http://www.tba.org/tba_files/TCA/fifththird.wpd
FRANCIS MURPHY HEAD v. WACHOVIA BANK OF GEORGIA, N.A., et al. Court:TCA Attorneys: Andree Sophia Blumstein and William L. Harbison, Nashville, Tennessee, for the appellant, Francis Murphy Head. Michael L. Dagley and Andrea Taylor McKellar, Nashville, Tennessee, for the appellees, Wachovia Bank of Georgia, N.A. and A. Gilmore Crumpler, Jr. C. Dewey Branstetter, Jr., Nashville, Tennessee, for the appellee, David D. Addison. Judge: CAIN First Paragraph: Petitioner filed a petition for judgment against the bank that served as trustee of Emily Robinson Frazer's revocable trust and executor of her estate, as well as several of its employees, for breach of fiduciary duty during the management of her trust and administration of her estate. Petitioner also requested that the estate be re-opened, that a new administrator be appointed, and that the bank be removed as trustee from all trusts in which Petitioner is a beneficiary or has an interest. These requests were motivated by claims of breach of fiduciary duty by the bank and a resulting conflict of interest between Ms. Frazer's estate and the bank in all subsequent services performed by the bank. The breach of fiduciary duty was based on allegations by Petitioner that the bank should have closely monitored Ms. Frazer's personal spending habits, that they should have prevented Ms. Frazer from withdrawing money from her revocable trust, that her trust officer should have known that this money was ultimately being embezzled from an account in another bank, and that the bank should have then taken steps to end this embezzlement and recover stolen money beyond the amount of recovery requested and agreed to by Ms. Frazer. Respondents moved for summary judgment, which motion was granted by the Probate Court of Davidson County. We affirm the order of the probate court and find that there was no breach of fiduciary duty by the bank, or any of its employees, as Ms. Frazer was fully aware of all circumstances of which Petitioner complains and determined how she wished the situation to be handled. She was competent and in complete charge of her revocable trust, the money requested from the trust, the money spent outside the trust, and decisions made regarding recovery of stolen funds. The probate court's dismissal of the entire matter is affirmed. http://www.tba.org/tba_files/TCA/headfrancis.wpd
RALPH E. THOMPSON, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles I. Poole, Sevierville, Tennessee, for the appellant, Ralph E. Thompson, Jr. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Alfred C. Schmutzer, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief, arguing that the post- conviction court erred in finding that he received effective assistance of trial counsel. The complaints against trial counsel were as to their alleged failure to prepare adequately for trial, to interview and present certain witnesses, and to present an adequate defense. After a careful review of the record, we affirm the judgment of the post-conviction court dismissing the petition. http://www.tba.org/tba_files/TCCA/thompsonralph.wpd
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