Opinion Flash

October 20, 2003
Volume 9 — Number 191

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):
02 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
03 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
07 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


STATE OF TENNESSEE v. JERRY RAY DAVIDSON
WITH 2 DISSENTING OPINIONS AND APPENDIX

Court:TSC

Attorneys:                          

Brock Mehler, Nashville, Tennessee (on appeal), Michael J. Love (trial
and appeal), and Collier W. Goodlett (trial only), Clarksville,
Tennessee, for the appellant, Jerry Ray Davidson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Alice B. Lustre, Assistant Attorney General (on
appeal); and Dan Alsobrooks, District Attorney General (trial only),
for the appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

The defendant, Jerry Ray Davidson, was convicted of premeditated
murder and aggravated kidnapping.  He was sentenced to death for the
premeditated murder and to a consecutive sentence of twenty years for
the aggravated kidnapping.  The Court of Criminal Appeals affirmed the
convictions and the sentences.  Thereafter, the case was automatically
docketed in this Court pursuant to Tennessee Code Annotated section
39-13-206(a)(1).  We entered an order designating the following issues
for oral argument:   (1) whether the trial court committed reversible
error in denying the defendant's motions for change of venue and for
additional peremptory challenges; (2) whether the trial court
committed reversible error in refusing to strike the venire; (3)
whether the evidence is sufficient to sustain the defendant's
convictions; (4) whether the trial court committed reversible error by
admitting the testimony of Darla Harvey; (5) whether the sentencing
verdict form was incomplete and erroneous; and (6) all issues mandated
by Tennessee Code Annotated section 39-13-206(c)(1).  Having carefully
reviewed these issues and the remainder of the issues raised by the
defendant, we find no merit to his arguments.  Accordingly, we affirm
the judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/davidsonjr_opn.wpd

DISSENTING OPINION #1 http://www.tba.org/tba_files/TSC/davidsonjr_dis1.wpd

DISSENTING OPINION #2 http://www.tba.org/tba_files/TSC/davidsonjr_dis2.wpd

APPENDIX http://www.tba.org/tba_files/TSC/davidsonjr_apx.wpd

In the Matter of D.L.B., A Minor

Court:TSC

Attorneys:                          

Barbaralette G. Davis, Webb A. Brewer, and Nancy Percer Kessler,
Memphis, Tennessee, for the Appellant-Respondent, David Moore.

Larry E. Parrish, Memphis, Tennessee, for the Appellees-Petitioners,
Denise Nickleson and Donald Joe Nickleson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dianne Stamey Dycus, Deputy Attorney General,
for the Appellee-Respondent, Tennessee Department of Children's
Services.

Judge: HOLDER

First Paragraph:

This appeal involves an action to terminate parental rights filed by
the prospective adoptive parents of a child.  The child's father
asserts that the chancery court erred in terminating his parental
rights on the basis that he abandoned his child for the four-month
period set forth in Tennessee Code Annotated section
36-1-102(1)(A)(i).  To compute the four-month period, the chancery
court used the date on which the Court Appointed Special Advocate
("CASA") filed a petition in juvenile court to terminate the father's
parental rights.  CASA's petition was later dismissed.  The Court of
Appeals affirmed the chancery court's termination of parental rights
under Tennessee Code Annotated section 36-1-102(1)(A)(i) and found an
additional ground for abandonment as defined by Tennessee Code
Annotated section 36-1-102(1)(A)(iii).  Tennessee Code Annotated
section 36-1-102(1)(A)(iii) specifies that parental rights may be
terminated if the father "willfully failed to make reasonable payments
toward the support of the child's mother during the four (4) months
immediately preceding the birth of the child."  We granted permission
to appeal.  We hold that the commencement of the four-month period of
abandonment under Tennessee Code Annotated section 36-1-102(1)(A)(i)
is properly computed from the date on which the petition to terminate
parental rights was filed in chancery court, not from the filing date
of the earlier juvenile court petition.  We further hold that the
Court of Appeals erred in terminating the father's parental rights
based upon Tennessee Code Annotated section 36-1-102(1)(A)(iii). 
Accordingly, we reverse the Court of Appeals and remand this case to
the trial court.

http://www.tba.org/tba_files/TSC/dlbaminor.wpd

JACK CHARLES BLANKENSHIP v. DONAL CAMPBELL, ET AL.

Court:TCA

Attorneys:                          

Edwin C. Lenow, Memphis, Tennessee, for the appellant, Jack Charles
Blankenship.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellees, Donal Campbell and Don Sundquist.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the prisoner's sentence credits and
eligibility for parole.  The prisoner filed a petition for declaratory
judgment in the Chancery Court for Davidson County requesting the
correction of his sentence and an immediate parole hearing.  The
Department filed a motion for summary judgment based on laches.  When
the prisoner failed to respond to the motion, the trial court granted
the summary judgment in accordance with Davidson County Local R.
26.04(c), (f).  Thereafter, the trial court denied the prisoner's
motion to set aside the summary judgment, and the prisoner has
appealed.  We have determined that the summary judgment must be
vacated because the Department's motion and supporting affidavit do
not demonstrate that it is entitled to a judgment on its laches
defense as a matter of law.

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

PAUL IVY v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:                          

Paul Ivy, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and J. Brad Scarbrough, Assistant Attorney General,
for the appellee, Tennessee Department of Correction.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Department
of Correction regarding a disciplinary proceeding at the Deberry
Special Needs Facility in Davidson County.  The prisoner filed a
petition for writ of certiorari in the Chancery Court for Davidson
County alleging the disciplinary board acted illegally, arbitrarily,
and vindictively by violating the Department's Uniform Disciplinary
Procedures when it disciplined him for attempted escape.  The
Department filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, and
the trial court, citing Sandin v. Conner, 512 U.S. 472, 115 S.Ct. 2293
(1995), dismissed the petition.  The prisoner has appealed.  We have
determined that the order dismissing the prisoner's petition should be
reversed in part and that the case should be remanded for further
consideration in light of Willis v. Tennessee Dep't of Corr., 113
S.W.3d 706 (Tenn. 2003).

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

ED NETHERLAND, ET AL. v. BILL HUNTER, ET AL.

Court:TCA

Attorneys:                          

James L. Weatherly, Jr. and Joseph T. Howell, Nashville, Tennessee,
for the appellants, Bill and Lawson Hunter.

Philip N. Elbert and Gerald D. Neenan, Nashville, Tennessee, for the
appellees, Ed and Desiree Netherland.

Judge: CAIN

First Paragraph:

In this matter we are asked to determine which statute controls the
issue of venue for a claim filed under the Tennessee Consumer
Protection Act, the venue provision of that act, Tennessee Code
Annotated section 47-18-109, or Tennessee's general venue provision,
section 20-4-101 of the Code.  The trial court determined that section
47-18-109 controls venue in this action and denied Defendants' Motion
to Dismiss for Improper Venue.  We affirm the decision of the trial
court.

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

Effect of the Private Protective Services Licensing and Regulatory Act
on employment of private security guards on public property.

Date: October 8, 2003

Opinion Number: 03-132                         

http://www.tba.org/tba_files/AG/2003/op132.pdf

Forfeiture of Vehicles for Misdemeanor Possession of Narcotics

Date: October 8, 2003

Opinion Number: 03-133                         

http://www.tba.org/tba_files/AG/2003/op133.pdf

Constitutionality of Chapter No. 370, 2003 Public Acts, Removing for
Certain Counties the Prohibition Against Duplicate Hotel-Motel Taxes

Date: October 8, 2003

Opinion Number: 03-134                         

http://www.tba.org/tba_files/AG/2003/op134.pdf

Unlicensed Sale and Distribution of Prescription Veterinary Drugs

Date: October 13, 2003

Opinion Number: 03-135                         

http://www.tba.org/tba_files/AG/2003/op135.pdf

Bailiff or Court Officer serving as Judicial Commissioner

Date: October 13, 2003

Opinion Number: 03-136                         

http://www.tba.org/tba_files/AG/2003/op136.pdf

DA Use of Signature Stamp

Date: October 13, 2003

Opinion Number: 03-137                         

http://www.tba.org/tba_files/AG/2003/op137.pdf

Compensation and Salaries of City Commissioners

Date: October 15, 2003

Opinion Number: 03-138                         

http://www.tba.org/tba_files/AG/2003/op138.pdf

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