Opinion Flash

February 17, 2004
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
01 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


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

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