Opinion FlashSeptember 17, 2004Volume 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):
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 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 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! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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