TBALink Opinion-Flash

August 17, 1998 -- Volume #4 -- Number #120

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
00-New Opinons From TSC
00-New Opinons From TSC-Rules
00-New Opinons From TSC-Workers Comp Panel
05-New Opinons From TCA
07-New Opinons From TCCA

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Lucian T. Pera
Editor-in-Chief, TBALink



WILLIAMSON COUNTY BROADCASTING
COMPANY, INC., and WILLIAM B. ORMES
vs.
INTERMEDIA PARTNERS, a California
limited partnership; INTERMEDIA CAPITAL 
MANAGEMENT; a general partner of    
InterMedia Partners; LEO J. HINDERY, JR.
Managing General Partner and Chief  
Executive Officer of InterMedia Capital     
Management; ROBIN CABLE SYSTEMS;
ROBIN MEDIA GROUP, INC.; FIRST  
CABLEVISION, INC.; ROBIN CABLE  
SYSTEMS LIMITED PARTNERSHIP;    
TENNESSEE VALLEY CABLEVISION

Court:TCA

Attorneys:  
ALFRED H. KNIGHT
ALAN D. JOHNSON
215 Second Avenue, North
Nashville, Tennessee 37201
Attorneys for Plaintiffs/Appellants

STEPHEN K. RUSH
1209 16th Avenue South
Nashville, Tennessee 37212

Kathryn A. Stephenson
414 Union Street
Nashville, Tennessee 37219
Attorneys for Defendants/Appellees                        

Judge:CANTRELL

First Paragraph:

In this second appeal involving a written agreement, we are asked to
review the chancellor's findings concerning the scope of the
agreement, the proof of damages, and whether the agreement should be
specifically performed.  We reverse the order of specific performance
but affirm in all other respects.

URL:http://www.tba.org/tba_files/TCA/intermed_opn.WP6
Opinion-Flash


PLANNED PARENTHOOD OF
MIDDLE TENNESSEE, et al.
VS.
DON SUNDQUIST, GOVERNOR
OF THE STATE OF TENNESSEE,
et al.,             

Court:TCA

Attorneys:
For Plaintiffs/Appellants:          For Defendants/Appellees:

Barry Friedman                      John Knox Walkup
Vanderbilt University               Attorney General and Reporter
Nashville, Tennessee
                                    Andy D. Bennett
Irwin Venick                        Associate Chief Deputy
Dobbins & Venick
Nashville, Tennessee                Michael W. Catalano
                                    Associate Solicitor General
Elizabeth B. Thompson
Howrey & Simon
Washington, DC                      For Dr. Anthony Trabue and
                                    Dr. Betty Neff:
Barbara E. Otten
Dara Klassel                        J. Russell Heldman
Roger K. Evans                      Franklin, Tennessee
Planned Parenthood Federation of America, Inc.
New York, NY

Louise Melling
Catherine Weiss
American Civil Liberties Foundation
New York, NY

For American College of Obstetricians and Gynecologists:

Ann E. Allen
American College of Obstetricians and Gynecologists
Washington, DC

Abby R. Rubenfeld
Rubenfeld & Associates
Nashville, Tennessee             

Judge:KOCH

First Paragraph:

This appeal presents a multifaceted challenge to the constitutionality
of Tennessee's abortion statutes. After a physician and a clinic in
Knoxville were charged with violating these statutes, two other
clinics in Memphis and Nashville, joined by three physicians, filed
suit in the Circuit Court for Davidson County seeking declaratory and
injunctive relief under the Constitution of Tennessee.  The trial
court struck down the residency requirement, the waiting period, and
the requirement that physicians inform their patients that an abortion
is a major surgical procedure.  After making its own substantive
revisions in the statutory text, the trial court upheld the mandatory
hospitalization requirement, the remaining informed consent
requirements, and the newly enacted parental consent requirement.  We
have determined that the trial court erred by revising the text of
several provisions.  We have also determined that the emergency
medical exception enacted by the General Assembly is
unconstitutionally narrow, that the combined effect of the waiting
period and the physician-only counseling requirement places an undue
burden on women's procreational choice, and that the remaining
challenged provisions as construed herein pass constitutional muster.

URL:http://www.tba.org/tba_files/TCA/planned_opn.WP6
Opinion-Flash


FREDDY TIPTON
VS.
ROBERT BURR, Individually anD                       
BLUE RIDGE DRILLING AND
OPERATING COMPANY, INC.

Court:TCA

Attorneys:
MICHAEL A. WALKER
P. O. Box 1780
Jamestown, Tennessee 38556
Attorney for Plaintiff/Appellee

RANDALL A. YORK
P. O. Box 3549
Crossville, Tennessee 38557-3549
Attorney for Defendants/Appellants                        

Judge:CANTRELL

First Paragraph:

The Chancery Court of Fentress County found that the defendant Robert
Burr, individually and/or as president of Blue Ridge Drilling and
Operating Company, agreed to purchase Freddy Tipton's interest in a
drilling rig for $50,000.  The court gave the defendant credit for a
partial payment of $5,000 and rendered judgment for $45,000 plus
prejudgment interest from October 14, 1992.  On appeal, Mr. Burr
contends that the parties never had a meeting of the minds, that Mr.
Tipton did not have an interest in the drilling rig, that the claim is
barred by the statute of frauds, that the claim cannot be asserted
against him individually, and that the court erred in awarding
prejudgment interest.  We modify the dates on which prejudgment
interest began to accrue.  In all other respects we affirm.

URL:http://www.tba.org/tba_files/TCA/tiptonf_opn.WP6
Opinion-Flash

DAVID K. WACHTEL, JR.
VS.
THE WESTERN SIZZLIN
CORPORATION f/k/a FRANCHISEE
ACQUISITION CORPORATION
VS.
DAVID K. WACHTEL, JR., AND
RESTAURANT MANAGEMENT
SERVICES, INC.

Court:TCA

Judge:CANTRELL

First Paragraph:

The appellee has filed a respectful Petition to Rehear.  After
reviewing the grounds for the petition, we are of the opinion that it
should be overruled.  It is, therefore, ordered that the petition be
overruled.

URL:http://www.tba.org/tba_files/TCA/wachtedk_reh.WP6
Opinion-Flash


JAMES L. WEST, ET AL.
VS.
FRANK LUNA

Court:TCA

Attorneys:
For Plaintiffs/Appellees:               For Defendant/Appellant:

R. Whitney Stevens, Jr.                 Brad W. Hornsby
Stevens, Bagley & Stevens               Bullock, Fly & McFarlin
Fayetteville, Tennessee                 Murfreesboro, Tennessee
   

Judge:KOCH

First Paragraph:

This appeal arises out of a long-running dispute over a dirt race
track in Lincoln County.  Six years after the track was permanently
enjoined from operating at a noise level that amounted to a nuisance,
a number of the track's residential neighbors filed suit in the
Chancery Court for Lincoln County to enjoin the track's new owner from
conducting stock car races because they feared that the noise would
create a nuisance.  Despite the new owner's assurances that he planned
to muffle the noise with sound-reducing technology and landscape
modifications, the trial court, sitting without a jury, permanently
enjoined the new owner from holding automobile races of any sort at
the track.  On this appeal, the track's owner challenges the breadth
of the injunction and the fact that it was issued before he reopened
the track.  We have determined that the injunction must be vacated
because it is too broad.

URL:http://www.tba.org/tba_files/TCA/westjl_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
RODNEY E. SMART

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

Ardena J. Garth                 John Knox Walkup
District Public Defender        Attorney General and Reporter
    
Donna Robinson Miller           Clinton J. Morgan
Asst. Public Defender           Assistant Attorney General      
710 Cherry Street               Criminal Justice Division
Chattanooga, TN  37402          450 James Robertson Parkway
                                Nashville, TN 37243-0493                
                        
                                William H. Cox III
                                District Attorney General

                                David Denny
                                Asst. District Attorney General
                                Suite 300, Courts Building
                                Chattanooga, TN  37402                          

Judge:Hayes

First Paragraph:

The appellant, Rodney E. Smart, appeals the revocation of his
Community Corrections sentence by the Hamilton County Criminal Court.
Following revocation, the trial court reinstated the appellant's
effective sentence of eight years in the Department of Correction.  In
this appeal as of right, the appellant argues that the trial court
abused its discretion by relying on unreliable hearsay evidence to
support the revocation.  After review of the record, we affirm the
judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/smartre_opn.WP6
Opinion-Flash


EARL E. COLLIER
VS. 
CHARLES JONES, Warden,
and, STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:          FOR THE APPELLEE:

EARL E. COLLIER, Pro Se     JOHN KNOX WALKUP
P.O. Box 2000               Attorney General and Reporter
Wartburg, TN 37887-2000
                            TIMOTHY F. BEHAN
                            Assistant Attorney General
                            425 5th Avenue North
                            Nashville, TN 37243-0493

                            CHARLES E. HAWK
                            District Attorney General

                            FRANK A. HARVEY
                            Assistant District Attorney General
                            P.O. Box 703
                            Kingston, TN 37763                          

Judge:WELLES

First Paragraph:

The Defendant, Earl E. Collier, appeals as of right the trial court's
dismissal of his  petition for writ of habeas corpus.  Defendant
argues the following four issues in this pro se appeal: (1) his
convictions violate due process and double jeopardy interests relevant
to the multiplicitous and facially invalid indictments brought against
him; (2) his convictions were due to a violation of his right to the
effective assistance of counsel; (3) his convictions violate his right
against self- incrimination; and (4) the facts do not support his
conviction for aggravated kidnapping.  We affirm the judgment of the
trial court.

URL:http://www.tba.org/tba_files/TCCA/colliere_opn.WP6
Opinion-Flash



STATE OF TENNESSEE
vs.
MICHAEL TODD DRINNON

Court:TCCA

Attorneys:
FOR THE APPELLANT:              FOR THE APPELLEE:

GREG W. EICHELMAN               JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter

D. CLIFTON BARNES               CLINTON J. MORGAN
Asst. District Public Defender  Asst. Attorney General
419 High St.                    425 Fifth Ave. N., 2d Floor
Maryville, TN  37804            Nashville, TN  37243-0493

                                C. BERKELEY BELL
                                District Attorney General

                                JOHN DUGGER
                                Asst. District Attorney General
                                510 Allison St.
                                Morristown, TN 37814                          

Judge:WITT

First Paragraph:

The defendant, Michael Todd Drinnon, appeals from his convictions of
two counts of evading arrest and two counts of third offense driving
on a revoked license.  Drinnon received his convictions at the
conclusion of his trial before a jury of his peers in the Hamblen
County Criminal Court.  He received sentences of two years each for
the evading arrest convictions and eleven months, 29 days for the
driving on revoked license convictions.  The evading arrest
convictions were imposed consecutively to each other and concurrently
to the driving on revoked license convictions, for an effective
sentence of four years.  In this direct appeal, Drinnon challenges the
sufficiency of the convicting evidence, the court's ruling that a
defense witness must not invoke his Fifth Amendment privilege if he
took the stand, and the sentence he received.  Following a review of
the record and the briefs of the parties, we affirm the judgment of
the trial court.

URL:http://www.tba.org/tba_files/TCCA/drinnonm_opn.WP6
Opinion-Flash



HILTON G. JEFFERIES
vs. 
JAMES A. BOWLEN, WARDEN
AND STATE OF TENNESSEE

Court:TCCA

Attorneys:
FOR THE APPELLANT:          FOR THE APPELLEE:

PRO SE                      JOHN KNOX WALKUP
                            Attorney General & Reporter

                            MICHAEL J. FAHEY, II
                            Assistant Attorney General
                            Cordell Hull Bldg., Second Floor
                            425 Fifth Avenue, North
                            Nashville, TN 37243-0490

                            JAMES MICHAEL TAYLOR
                            District Attorney General

                            JAMES W. POPE, III
                            Assistant District Attorney
                            265 Third Avenue, Suite 300
                            Dayton, TN 37321
                         

Judge:ACREE

First Paragraph:

The appellant, Hilton Glen Jefferies, appeals as of right the trial
court's dismissal of his petition for writ of habeas corpus.  We
affirm the trial court.


URL:http://www.tba.org/tba_files/TCCA/jeff_op.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
SHAWN T. O'MALLEY

Court:TCCA

Attorneys:                          
For the Appellant:          For the Appellee:

Mack Garner                 John Knox Walkup
District Public Defender    Attorney General and Reporter
419 High Street                         
Maryville, TN 37804         Marvin E. Clements, Jr.     
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243-0493


                            Michael L. Flynn
                            District Attorney General

                            Philip H. Morton
                            Assistant District Attorney
                            363 Court Street
                            Maryville, TN 37804

Judge:Barker

First Paragraph:

The appellant, Shawn T. O'Malley, appeals as of right the sentence he
received in the Blount County Circuit Court as a result of his guilty
plea to the offense of vehicular homicide.  Appellant was sentenced to
serve eight (8) years in the Department of Correction as a Range I
offender.  On appeal, he contests only the trial court's denial of
alternative sentencing.  We affirm.

URL:http://www.tba.org/tba_files/TCCA/omalleys_opn.WP6
Opinion-Flash


STATE OF TENNESSEE
VS.
ALBERT CHRISTIAN PADGETT

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

Alan R. Beard                   John Knox Walkup
737 Market Street, Suite 601    Attorney General and Reporter
Chattanooga, TN 37402                           
                                Timothy F. Behan
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243-0493


                                William H. Cox, III
                                District Attorney General
    
                                C. Leland Davis
                                Assistant District Attorney
                                600 Market Street, Suite 310
                                Chattanooga, TN 37402                        

Judge:Barker

First Paragraph:

The appellant, Albert Christian Padgett, appeals as of right his
convictions in the Hamilton County Criminal Court of especially
aggravated kidnapping, two counts of aggravated rape, two counts of
aggravated robbery, and theft over $1,000.  He received an effective
sentence of 103 years. Appellant argues on appeal: (1) that the trial
court erred in allowing separate convictions for aggravated rape and
especially aggravated kidnapping based upon the same criminal episode;
(2) that the trial court erred in allowing two convictions for
aggravated rape when both rapes occurred at the same time and involved
the same victim; and (3) that the trial court erred in failing to
instruct the jury on the defense of necessity.  After a thorough
review of the record, we find no reversible error. Accordingly, we
affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/padgett_opn.WP6
Opinion-Flash



STATE OF TENNESSEE
VS.
ALGERNON WILLIE RICE

Court:TCCA

Attorneys:
For the Appellant:              For the Appellee:

Ardena J. Garth                 John Knox Walkup 
District Public Defender        Attorney General of Tennessee
     and                        and
Richard K. Mabee                Clinton J. Morgan
Assistant Public Defender       Asst. Attorney General of Tennessee           
701 Cherry Street, Suite 300    425 Fifth Avenue North          
Chattanooga, TN 37402           Nashville, TN 37243-0493
(AT TRIAL)
                                William H. Cox, III
Ardena J. Garth                 District Attorney General
District Public Defender                and
     and                        Bates W. Bryan, Jr.
Donna Robinson Miller           Assistant District Attorney General
Assistant Public Defender       600 Market Street, Suite 310
701 Cherry Street, Suite 300    Chattanooga, TN 37402
Chattanooga, TN 37402
(ON APPEAL)
                        

Judge:Tipton

First Paragraph:

The defendant, Algernon Willie Rice, appeals as of right from his
conviction upon a guilty plea in the Hamilton County Criminal Court
for second degree murder, a Class A felony.  The trial court sentenced
the defendant as a Range I, standard offender to twenty years in the
Department of Correction.  The defendant contends that the trial court
erred by applying enhancement factors and by failing to consider
mitigating factors.  We affirm the judgment of conviction.

URL:http://www.tba.org/tba_files/TCCA/riceaw_opn.WP6


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