Opinion FlashFebruary 17, 2004Volume 10 — Number 031 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. This Issue (IN THIS ORDER):
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, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.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. Howard H. Vogel JUDICIAL ETHICS COMMITTEE ADVISORY OPINION NO. 04-01 Court:TSC - Rules First Paragraph: The Committee has been asked to render an opinion as to the necessity of recusal by a trial judge when a law firm with which the judge's child is affiliated makes an appearance in the judge's court: 1. Must a trial judge recuse himself/herself from all cases in which one of the parties is represented by a firm in which his/her child is a salaried partner? 2. Must a trial judge recuse himself/herself from all cases in which one of the parties is represented by a firm in which his/her child is an equity partner? The Committee concludes that the fact a litigant is represented by a firm in which the judge's child is a partner, whether salaried or equity, does not require recusal of the judge from the litigation, but other factors may make recusal necessary. http://www.tba.org/tba_files/TSC_Rules/advisoryopinion04-1.wpd BRIAN & CANDY CHADWICK v. CHAD SPENCE Court:TCA Attorneys: Kevin A. Snider, Germantown, TN, for Appellants Harold D. Mangrum, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This is an action for damages arising from the purchase of a residence. Purchaser sued seller for fraudulent misrepresentation and breach of contract, alleging that seller failed to disclose existing stucco and water damage, as well as termite infestation. Following a bench trial, the lower court entered judgment in favor of Defendant. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/chadwi.wpd KAREN LEE HANEY FLETCHER v. JOHN MARC FLETCHER Court:TCA Attorneys: Sam J. Watridge, Humboldt, For Appellant, John Marc Fletcher David W. Camp, Jackson, For Appellee, Karen Lee Haney Fletcher Judge: CRAWFORD First Paragraph: Husband-appellant appeals order of the trial court holding him in civil contempt and designating punishment and the order of the trial court denying motion to modify alimony order. The notice of appeal was filed 30 days from the date of the trial court's order denying the motion to modify but the filing was approximately one year after the contempt order. On appeal, we dismiss the appeal of the contempt order as untimely and affirm the order denying modification. http://www.tba.org/tba_files/TCA/fletche.wpd JAY JOHNSON, ET AL. v. REED WELCH, ET AL. Court:TCA Attorneys: Jay S. Bowen, Timothy L. Warnock, Taylor A. Cates, Nashville, Tennessee, for the appellants, Reed Welch, Olive Welch, Quality Metal Treating, Inc., and S&S Screw Machine Co., Inc. S. Roger York, Crossville, Tennessee; William S. Walton, Nashville, Tennessee, for the appellees Jay Johnson and QMT Quality Metal Treating, Inc. Judge: COTTRELL First Paragraph: This appeal involves a business dispute with multiple claims for breach of three separate contracts. The trial court found Reed Welch and his company, S& S Screw Machine Company, Inc., in breach in various ways and awarded a total of $1,032,133.15 in damages to Jay and Gail Johnson, both personally and as the owners of Quality Metal Treating, Inc. We affirm in part and reverse in part the judgment of the trial court. http://www.tba.org/tba_files/TCA/johynsnj.wpd THE TENNESSEAN, ET AL. v. THE CITY OF LEBANON, TENNESSEE Court:TCA Attorneys: Charles W. Cook, III, Nashville, Tennessee; Peggy F. Williams, Lebanon, Tennessee, for the appellant, the City of Lebanon, Tennessee. Alfred H. Knight, Alan D. Johnson, Nashville, Tennessee, for the appellees/cross-appellants, The Tennessean and Warren Duzak. Judge: COTTRELL First Paragraph: The City of Lebanon appeals the trial court's award of partial attorney fees to The Tennessean newspaper under the provisions of the Public Records Act, Tenn. Code Ann. S 10-7-501 et seq. The City argues that the trial court erred in ordering it to pay any attorney fees at all, because its refusal to make a public record available to The Tennessean was justified by a good faith belief that it was not required to. The newspaper argues that the trial court should have awarded it all the fees it incurred in the effort to compel the City of Lebanon to comply with the Public Records Act, instead of just a portion of those fees. We agree with The Tennessean, and we accordingly affirm the award of attorney fees, but modify it to include those fees that had been excluded by the trial court. http://www.tba.org/tba_files/TCA/thetennessean.wpd JAMES DISON v. STATE OF TENNESSEE Court:TCCA Attorneys: James W. Greenlee, Sevierville, Tennessee (on appeal); and Keith E. Haas, Sevierville, Tennessee (at trial), for the appellant, James Dison. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; Steven Hawkins, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, James Dison, appeals from the trial court's denial of post-conviction relief. Petitioner was convicted for rape of a child and sentenced to twenty-five years confinement. This Court affirmed Petitioner's conviction and sentence on direct appeal. State v. James Dison, No. 03-C01- 9602-CC-00051, 1997 WL 36844, 1997 Tenn. Crim. App. LEXIS 93 (Tenn. Crim. App. at Knoxville, January 31, 1997), perm. to app. denied (Tenn. 1997). Petitioner filed a pro se petition for post-conviction relief. Petitioner was appointed counsel and subsequently filed an amended petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the trial court denied the petition. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/disonjames.wpd STATE OF TENNESSEE v. LOUISE DAWSON MARLOW Court:TCCA Attorneys: Robert T. Carter, Tullahoma, Tennessee, for the appellant, Louise Dawson Marlow. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; C. Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant entered a plea of nolo contendere to reckless homicide and agreed to a sentence of seven years as a Range II, multiple offender. The manner of service of the sentence was to be determined following a sentencing hearing. The trial court ordered the defendant to serve one year in the county jail followed by six years in community corrections. The defendant contends on appeal that the trial court erred in requiring any confinement in this case. We conclude that the defendant is not eligible for community corrections and remand for re-sentencing. http://www.tba.org/tba_files/TCCA/marlowld.wpd STATE OF TENNESSEE v. THOMAS LEN PROFITT, ALIAS Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, for the appellant, Thomas Len Profitt, Alias. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of aggravated vehicular homicide, aggravated assault, simple possession, and driving on a suspended license. The defendant contends on appeal that (1) there was insufficient evidence to support the convictions for aggravated vehicular homicide and aggravated assault, (2) the trial court erred in allowing evidence of inactive marijuana metabolites found in the defendant's blood after the accident, (3) the trial court erred in allowing evidence concerning extrapolation of the defendant's blood alcohol concentration back to the time of the accident, (4) the trial court erred in not allowing the defendant to plead guilty to driving on a suspended license, (5) the trial court erred in allowing evidence concerning extradition and instructing the jury on flight, and (6) the cumulative effect of the errors requires a new trial. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/profitttlalias.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! 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