Opinion Flash

September 17, 2004
Volume 10 — Number 180

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
02 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)
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


DONNA DENTON, ET AL. v. JOHN HAHN, ET AL.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Ronald L. Stone, Nashville, Tennessee, for the appellants, Donna
Denton and Robert Denton.

James L. Weatherly and Joseph T. Howell, Nashville, Tennessee, for the
appellee, John Hahn.

Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for
the appellee, Kingswood Homeowners' Association.

Judge: KOCH

First Paragraph:

This appeal involves a tenant who was injured when she slipped on the
metal threshold of a rented condominium unit.  The tenant and her
husband filed a negligence action in the Circuit Court for Davidson
County against both the owner of the condominium unit and the
homeowners' association.  The trial court granted the condominium
owner's and the homeowners' association's motions for summary
judgment, and the tenant and her husband have appealed.  We have
determined that the owner of the condominium unit was not responsible
for the maintenance and repair of the metal threshold because it was
part of the condominium's common elements.  While the homeowners'
association had a duty to maintain the threshold in a reasonably safe
condition, we have determined that the association is not liable to
the tenant and her husband as a matter of law because they failed to
present evidence that the association had actual or constructive
notice of the condition that caused the tenant's fall.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/dentondonna_con.wpd

WAGGONER MOTORS, INC. v. WAVERLY CHURCH OF CHRIST

Court:TCA

Attorneys:                          

James D. Kay, Jr., Matthew Brothers, and Jeanette Armington,
Nashville, Tennessee, and Robert I. Thomason, Waverly, Tennessee, for
the appellant, Waverly Church of Christ.

Dan R. Bradley, Waverly, Tennessee, for the appellee, Waggoner Motors,
Inc.

Judge: KOCH

First Paragraph:

This appeal involves an automobile dealer whose vehicles were damaged
by paint overspray from a church's construction project on adjacent
property.  The dealer filed suit against the church in the Circuit
Court for Humphreys County seeking damages for the cost of cleaning
the vehicles and lost profits.  Following a bench trial, the trial
court determined that the church had not properly supervised the
painting and that the paint overspray had damaged the automobile
dealer.  Accordingly, the trial court awarded the dealership $344,778
in damages and $11,170 in discretionary costs.  On appeal, the church
takes issue with the trial court's decisions regarding liability,
damages, and discretionary costs.  The dealer also takes issue with
the damages award.  The dealer's evidence regarding its lost profits
is too speculative to support the trial court's judgment.  However, we
have determined that the evidence supports a judgment for $85,692.  We
have also determined that the trial court erred with regard to a
portion of the discretionary costs.  Accordingly, we reduce the
dealer's damages to $85,692.00 and modify the award for discretionary
costs to $8,501.25.

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

STATE OF TENNESSEE v. FRANKLIN DARNELL BROWN, JR.
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant,
Franklin Darnell Brown, Jr.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; and Eleanor Cahill, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Franklin Darnell Brown, Jr., was convicted of
manufacturing methamphetamine and possession of drug paraphernalia. 
The trial court ordered concurrent sentences of six years and eleven
months, twenty-nine days, respectively.  In this appeal of right, the
defendant  contends that the evidence was insufficient to support his
conviction for manufacturing methamphetamine and that the sentence was
excessive.  The judgments of the trial court are affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/brownfrankdjr_dis.wpd

STATE OF TENNESSEE v. CHRISTOPHER KIRKENDALL
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

W. Mark Ward (on appeal) and Trent Hall (at trial), Assistant Public
Defenders, for the appellant, Christopher Kirkendall.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; and Reginald Henderson, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE
 
First Paragraph:

The defendant, Christopher Kirkendall, indicted for one count of
attempted first degree murder and two counts of aggravated robbery,
was convicted of facilitation of attempted second degree murder and
two counts of facilitation of aggravated robbery, all Class C
felonies.  The trial court imposed a sentence of six years for
facilitation of attempted second degree murder and, after merging the
robbery convictions, imposed a five-year sentence for one count of
facilitation of aggravated robbery.  The sentences were ordered to be
served consecutively to each other and consecutively to a previously
imposed twelve-year sentence for an unrelated offense.  In this appeal
of right, the defendant challenges the sufficiency of the identity
evidence and argues that the sentences should be concurrently served. 
Since the filing of the briefs, the defendant has also asked to
consider the impact of the ruling in Blakely v. Washington, 542 U.S.
____ , 124 S. Ct. 2531 (2004), as to the lengths of the sentences. 
The judgments are affirmed as modified.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/kirkendchris_dis.wpd

VICTOR D. MCMILLER, SR. v. WARDEN GLENN TURNER

Court:TCCA

Attorneys:                          

Victor D. McMiller, Sr., pro se.

Paul G. Summers, Attorney General & Reporter; Kathy Aslinger,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner, Victor D. McMiller, Sr., appeals the trial court's
denial of his petition for habeas corpus relief.  The State has filed
a motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
Because Petitioner has failed to allege a ground for relief which
would render the judgment void, we grant the State's motion and affirm
the judgment of the lower court.

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

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