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Today's Opinions: December 20, 2004
Volume 10 — Number 243
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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
02 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. • Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


BILLY GENE GRAY v. CULLOM MACHINE, TOOL & DIE, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; and Richard M.
Murrell, Assistant Attorney General,  Nashville, Tennessee, for the
Appellant, Second Injury Fund.

Robert J. Uhorchuk, Chattanooga, Tennessee, for the Appellees, Cullom
Machine, Tool & Die, Inc., and Travelers Insurance Company.

William J. Brown, Cleveland, Tennessee, for the Appellee, Billy Gene
Gray.

Judge: ANDERSON

First Paragraph:

We granted review in this workers' compensation case to determine
whether the trial court erred in 1) awarding temporary total benefits,
2) apportioning liability between the employer and the Second Injury
Fund, and 3) awarding 180 weeks of lump-sum benefits.  After reviewing
the record and applicable authority, we conclude that the trial court
erred in awarding temporary total benefits to the employee who
continued to work for the employer following his injury and then later
operated his own unprofitable business.  We also hold that the trial
court erred in limiting the employer's liability for permanent total
disability benefits to 60% of 400 weeks and in awarding 180 weeks of
lump sum benefits.  Accordingly, we reverse the trial court's judgment
and remand for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC_WCP/graybillyg.wpd

AMES DAVIS, Administrator of the Estate of Mary Reeves Davis v. W.
TERRY DAVIS

Court:TCA

Attorneys:                          

Ames Davis and Sally B. Buntin of Nashville for Appellant, Ames Davis,
Administrator of the Estate of Mary Reeves Davis

Gregory H. Oakley and Daniel Small of Nashville for Appellee, W. Terry
Davis

Judge: KIRBY

First Paragraph:

This case involves a claim for reimbursement against an estate.  A
trust was established during the decedent's lifetime to pay for her
needs.  Before the decedent died, her husband paid for her needs, in
part to preserve trust property.  After her death, the husband filed a
claim against the wife's estate seeking reimbursement for his payments
for the healthcare and support of the wife.  The trial court found
that the payments were made to protect the wife's trust property, as
well as for the care and support of the wife, and would have been paid
by the trustee but for lack of assets, and the wife's estate was the
successor-in-interest to the remaining assets of the trust. 
Consequently, the trial court sustained the husband's claim against
the wife's estate.  The wife's estate now appeals.  We affirm, finding
the expenses paid by husband constitute a valid claim against the
wife's estate.

http://www.tba.org/tba_files/TCA/davisames.wpd

HERBERT F. PITZ AND SHIREL H. PITZ v. DONALD E. WOODRUFF AND DOROTHY
D. WOODRUFF

Court:TCA

Attorneys:                          

T. Lance Carter, Fayetteville, Tennessee, for the appellants, Herbert
F. Pitz and Shirel H. Pitz, individually and as trustees for the
Herbert F. Pitz 1993 Revocable Trust and the Shirel H. Pitz 1993
Revocable Trust, respectively.

William E. Simms, Fayetteville, Tennessee, for the appellees, Donald
E. Woodruff and Dorothy D. Woodruff.

Judge: KIRBY

First Paragraph:

This case involves claims of fraud arising out of the sale of a house.
 The plaintiff purchasers signed a contract to buy a house owned by
the defendants.  The contract to sell contained an "as is" clause,
allowing inspection of the property but requiring the sale to be "as
is."  The purchasers did not inspect the house further before the
closing.  After the purchasers took possession, they noticed several
defects in the house that were not disclosed by the sellers.  The
purchasers sued the sellers, alleging that the sellers had made
material misrepresentations of fact and had fraudulently concealed or
failed to disclose material defects in the house.  After a bench
trial, the trial court held in favor of the sellers.  It concluded
that, although the sellers had made material misrepresentations of
fact, the purchasers' reliance on those representations was not
reasonable because of the "as is" provision in the contract and
because the defects were either apparent or readily discoverable.  The
purchasers now appeal.  We affirm, finding that the evidence does not
preponderate against the trial court's conclusion that the purchasers'
reliance was not reasonable.

http://www.tba.org/tba_files/TCA/pitzherbertf.wpd

JERRY BRITT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

P. Richard Talley, Dandridge, Tennessee, for the appellant, Jerry
Britt.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; and C. Berkeley Bell, District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Jerry Britt, entered Alford pleas in 1996 to three
counts of attempted rape of a child and guilty pleas to one count of
possession with intent to sell or deliver a Schedule II controlled
substance, one count of possession with intent to sell or deliver a
Schedule IV controlled substance, and six counts of delivery of a
Schedule II controlled substance, and received an effective sentence
as a Range I, standard offender of forty-eight years in the Department
of Correction.  He appeals the dismissal of his petition for writ of
error coram nobis, arguing that the trial court should have granted
him relief based on newly discovered evidence, the victim's
recantation testimony.  Following our review, we affirm the order of
the trial court dismissing the petition.

http://www.tba.org/tba_files/TCCA/brittjerry.wpd

STATE OF TENNESSEE v. CUMECUS RODRELLE CATES

Court:TCCA

Attorneys:                          

Russell T. Greene, Knoxville, Tennessee, for the appellant, Cumecus
Rodrelle Cates.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Randall E. Nichols, District
Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

Following a jury trial, the Defendant was convicted of aggravated
burglary and misdemeanor theft.  On appeal, he challenges the
sufficiency of the convicting evidence.  We affirm the judgments of
the trial court.

http://www.tba.org/tba_files/TCCA/catesstanleye.wpd

Penalty for Parking Unregistered Car on Property

Date: December 17, 2004

Opinion Number: 04-172

http://www.tba.org/tba_files/AG/2004/op172.pdf

Assessment of Court Costs Upon Judgment of Forfeiture of Bail Bond

Date: December 17, 2004

Opinion Number: 04-173

http://www.tba.org/tba_files/AG/2004/op173.pdf

TEMA Disaster Recovery Volunteers

Date: December 17, 2004

Opinion Number: 04-174

http://www.tba.org/tba_files/AG/2004/op174.pdf

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