Opinion Flash

March 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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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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