Court of Appeals Opinions

Format: 12/14/2018
Format: 12/14/2018
Angie Brooks, v. Kimberly J. Quam Davis and Gayle Schaal - Concurring
Authoring Judge: Judge William C. Koch, Jr.s
Trial Court Judge:

Two persons injured in a one-car accident sued the driver of the car in which they were riding. After obtaining an essentially worthless judgment against the unknown driver of another car, the passengers perfected this appeal to take issue with the trial court’s decision to permit their driver to rely on a “phantom automobile” defense even though she had not included this defense in her answer. The majority has determined that the trial court properly permitted the driver to assert this defense and to amend her pleadings to conform to the proof. While I concur with the majority’s decision under the circumstances of this case, I have prepared this separate opinion to avoid leaving a mistaken impression that the driver’s answer complied with Tenn. R. Civ. P. 8.03. It did not; however, the error does not undermine the jury’s verdict in this case.

Court of Appeals 03/08/96
Phyllis Hovenden, Bill Hovenden, Ellen Wemyss, Patricia Highers, Richard Rouch, and Citizens for and Orderly Development of Gallatin, v. City of Gallatin, Galatin Planning Commission, et al.
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Chancellor Irvin H. Gilcrease, Jr.

The captioned petitioners filed their “Petition for Writ of Certiorari and Verified Complaint” seeking review of the action of the City Council of Gallatin in regard to the zoning of certain property and for injunctive relief. From an adverse judgment in the Trial Court, one of the petitioners, Phyllis Hovenden, has appealed, presenting the following issues for review:

Sumner County Court of Appeals 03/08/96
Jay Franklin Smith, v. Patricia Ann Smith
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Dennis H. Inman

In this custody dispute, the parties were divorced in 1992, and the mother was granted custody of the parties' minor son. The decree provided that the mother would not remove the child from the State without permission of the Court, but no scheduled visitatoin was ordered. Subsequently, visitation schedules were ordered or agreed upon and in June of 1993 the mother asked permission to move to Florida with the child, which petition was denied. In 1994, the father petitioned for a change of custody and contempt for failure of the mother to allow ordered visitation. The Court refused to change custody, but sentenced the mother to two days in jail for contampt of court, but stayed the sentence indefinitely on the assumption there will be no recurrence of this particular problem. This judgment was entered on December 13, 1994.

Hamblen County Court of Appeals 03/06/96
Geico General Insurance Company, v. Dusti Dawn Howard, Pat Howard, and wife Penne Howard, et al.
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor William E. Lantrip

These declaratory judgment actions arose as a result of a single car accident.

Anderson County Court of Appeals 03/06/96
Julie Harlan, Individually and as Next Friend of James K. Hunt, II, a minor, v. James F. Lovett, Sonja Blackburn, v. James F. Lovett
Authoring Judge: Special Judge Clifford E. Sanders
Trial Court Judge: Judge Richard Ladd

The Defendant has appealed from a jury verdict awarding compensatory and punitive damages for his conversion of seven saddle horses.

Sullivan County Court of Appeals 03/06/96
James Jennings, v. Charles Traughber, et al.
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Robert S. Brandt

Petitioner James Jennings, an inmate at CCA-South Central Correctional Center 2 acting pro se, sought judicial review of the decision rendered by the Tennessee Board of Parole ("TBOP"), revoking Petitioner's parole, by common law writ of certiorari. The Chancery Court, Davidson County, granted the Motion to Dismiss filed by Respondent, Charles Traughber, Chairman, TBOP. Petitioner appeals the chancellor's decision.

Davidson County Court of Appeals 03/06/96
Brenda L. Gray, v. Stephen D. Gray
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Judge Thomas Goodall

Following a marriage of approximately eight years, Wife filed a complaint for absolute divorce in November 1993. In her complaint, she alleged adultery, inappropriate marital conduct, and
irreconcilable differences. Husband answered and filed a countercomplaint which alleged cruel and inhuman treatment, inappropriate marital conduct, and irreconcilable differences.

Sumner County Court of Appeals 03/06/96
Kyle Edward Dangler, Lisa Ann Dangler v. Edward Eugene Dangler, father, Patricia G. Dangler, and Edward C. Dangler, Grandparents
Authoring Judge: Senior Judge Tomlin
Trial Court Judge: Judge Jim T. Hamilton

This case involves the application and interpretation of certain provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) as enacted by the states of Missouri and Tennessee, T.C.A. §§ 36-6-201 to 36-6-225 (1991), as well as the Federal Parental Kidnapping Prevention Act (PKPA). 28 U.S.C.A. § 1738A (1994). The courts of this state first became involved with this tragic set of complicated circumstances when Lisa Ann Dangler (“petitioner”), a resident of Missouri, filed suit in the Circuit Court of Maury County, Tennessee (“Tennessee trial court”) seeking to have that court enroll a foreign judgment from the state of Missouri and to enforce a writ of habeas corpus issued by the Circuit Court of Barry County, Missouri (“Missouri trial court”), which had as part of a divorce proceeding in that court in 1983 awarded petitioner custody of the parties’ minor child. Named as 1Although the child’s father was named a respondent, the only truly active respondents in this case are the paternal grandparents of the child. 2 respondents are Eugene Edward Dangler (?father”) and the child’s paternal grandparents, Patricia G. Dangler and Edward C. Dangler (by name or ?respondents”).1 The court below held that it had jurisdiction of this case pursuant to T.C.A. § 36-6-201 and proceeded to award custody to the paternal grandparents, giving petitioner visitation rights. On appeal, petitioner has presented three issues for our consideration (1) whether the trial court erred in engaging in a “best interest of the child evaluation” in reaching a decision as to custody, absent a showing of substantial harm to the child; (2) whether the trial court erred in holding that the order of habeas corpus from the Missouri court was unenforceable in this state; and (3) whether petitioner is entitled to attorney’s fees in connection with this litigation.

Maury County Court of Appeals 03/06/96
Duane A. Peters v. Commonwealth Associates
03A01- 9508- CV- 00295
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

This is an action brought by Duane A. Peters (Peters) for alleged violations of the Tennessee Securities Act of 1980 and the Tennessee Consumer Protection Act of 1972. Peter's suit against Commonwealth Associates (Commonwealth) arose out of investments made by Peters through David Didkin, an agent of Commonweath. Commonwealth moved to stay this action and to compel arbitration of Peters' claim pursuant to T.C.A. § 29- 5-301 e t  s e q. , the Uniform Arbitration Act. In support of its motion, Commonwealth relied upon a written agreement, signed by Peters, wherein he agreed to submit al controversies between the parties to arbitration. The trial court granted Commonwealth's motion, staying ll proceedings in court and ordering the parties to proceed with arbitration. Peter's appeals raising the following issues:

Any condition, stipulation, or provision binding any person on acquiring any security to waive compliance with any provision of this part or any rule order hereunder is void.

Blount County Court of Appeals 03/05/96
Tina Harvey, et ux., v. Geneth Wolfer, D.O.
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Senior Judge William H. Inman

Initially, this action was one for damages for the alleged medical malpractice of the defendant in dropping the plaintiff Tina Harvey or preventing her from falling and fracturing her ankle after an injection which may have caused numbness in her legs.

Hamilton County Court of Appeals 03/05/96
Lynda Diane Schmidt, v. Glenn Vern Schmidt
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge:

The trial court awarded the plaintiff rehabilitative alimony of $1,000.00 monthly for 24 months. The  plaintiff appeals, insisting that the award is (1) inadequate to her needs and (2) should have been in futuro. No other issue is presented.

Bradley County Court of Appeals 03/05/96
Brian Weiford, D/B/A Elite Cable Television, v. Fields Development Co., Inc., D/B/A Deerfield Resort
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Judge Conrad Troutman

This is an appeal from the judgment of the trial court granting the appellee's motion for summary judgment. We affirm the judgment of the trial court.

Campbell County Court of Appeals 03/04/96
Jeffrey Keith Phillips and Jennifer Phillips, v. Eugene Russell
Authoring Judge: Judge Don T. McMurray
Trial Court Judge: Judge G. Richard Johnson

For simplicity, the parties will be referred to in the capacity in which they appeared in the trial court. The parties to this appeal entered into a contract whereby the a;;ellant was to construct a home for the appellees. Problems developed between the parties which resulted in an action by the plaintiffs-appellees to recover damages frm the defendant-appellant for defective workmanship in the construction and to remove a cloud from their title resulting from a lien filed by the defendant. The defendant filed a counterclaim against the plaintiffs and a cross-claim against Shirley G. Hughes. Shirley Hughes was trustee under a deed of trust executed by the plaintiffs to secure payment of a promissory note in the amount of $80,000, payable to Elizabethton Savings and Loan Association.


Washington County Court of Appeals 03/04/96