New TennBarU online video courses focus on real estate Brush up on your real estate law knowledge with three new courses available online from TennBarU. Available in a video format are: High Risk Practices in Real Estate (1 hour dual), Tennessee Real Estate Case Law Update (.5 hour) and How Do I Surrender Manufactured Home Titles in Tennessee (.5 hour). http://www.legalspan.com/tnbar/    TODAY'S OPINIONS: Wednesday, December 14, 2005 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. 00 - TN Supreme Court 00 - TN Worker's Comp Appeals 00 - TN Supreme Court - Rules 07 - TN Court of Appeals 01 - TN Court of Criminal Appeals 00 - TN Attorney General Opinions 00 - Judicial Ethics Opinions 00 - Formal Ethics Opinions - BPR 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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink PATSY C. CATE v. JAMES DANIEL THOMAS Court: TCA Attorneys: Lanis L. Karnes of Jackson, Tennessee for Appellant, James Daniel Thomas John Van den Bosch, Jr., of Jackson, Tennessee for Appellee, Patsy C. Cate Judge: CRAWFORD This case arises out of an ejectment action filed by Appellee against Appellant. Appellee claims ownership of the disputed property under a 1990 Warranty Deed and Appellant asserts that this Deed should be set aside due to fraud. The trial court found that the 1990 Deed was valid and that Appellant was a tenant at will on the property. The trial court further found that Appellant was in arrears on rent and that Appellee had a right to possession of the property and rents. We affirm. http://www.tba2.org/tba_files/TCA/2005/catep121405.pdf CHRISTINE V. JONES v. CULLEN A. RAY Court: TCA Attorneys: Larry L. Roberts and Rebecca C. Kaman, Nashville, Tennessee, for the appellant, Christine V. Jones. James H. Drescher, Nashville, Tennessee, for the appellee, Cullen A. Ray. Todd A. Bricker, Nashville, Tennessee, for the appellee, Horace Mann Insurance Company. Judge: SUSANO The plaintiff and the defendant were riding double on a motorcycle with the defendant in front. The parties were proceeding south on the Natchez Trace Parkway in Williamson County when a deer came from the left and struck the side of the motorcycle, causing the plaintiff to sustain multiple fractures of her left leg. The plaintiff’s uninsured motorist carrier, who was served with process in the case, moved for summary judgment with respect to the plaintiff’s suit. The trial court granted summary judgment and dismissed the suit. The plaintiff appeals, arguing that there are genuine issues of material fact which preclude summary judgment. We affirm. http://www.tba2.org/tba_files/TCA/2005/jonesc121405.pdf DERRICK LAWRENCE, ET AL. v. TREES N TRENDS Court: TCA Attorneys: Bert Bates, Cleveland, Tennessee, for the Appellants Derrick Lawrence and Kim Lawrence. Alaric A. Henry and Amanda G. Branam, Chattanooga, Tennessee, for the Appellee Trees-N-Trends. Judge: SWINEY Derrick Lawrence and Kim Lawrence (“Plaintiffs”) sued Trees-N-Trends (the “Store”) alleging outrageous conduct and/or negligent infliction of emotional distress. While Plaintiffs were shopping at the Store, a customer reported to the Store’s manager that Plaintiffs had a gun and intended to commit a robbery. The Store’s assistant manager, Whitney Finnell (“Finnell”), called 911 indicting there was a possible armed robbery but then clarifying that the report was based solely on information provided by a customer. Plaintiffs purchased some items and were confronted by police officers as they exited the store, made to lie on the pavement, and were handcuffed while the officers ascertained whether Plaintiffs were armed. Plaintiffs were not armed. The Trial Court granted summary judgment to the Store, and Plaintiffs appeal claiming there are genuine issues of material fact. We affirm. http://www.tba2.org/tba_files/TCA/2005/lawrenced121405.pdf STATE OF TENNESSEE, EX REL. DIANA FRANCES IRWIN v. JOSEPH MABALOT Court: TCA Attorneys: Paul G. Summers, Attorney General & Reporter, Stuart F. Wilson-Patton, Senior Counsel, for the appellant, State of Tennessee, ex. rel., Diana Frances Irwin, c/o Division of Child Support. Clark Lee Shaw, Cynthia J. Bohn, Derek K. Burks, Nashville, Tennessee, for the appellee, Joseph Mabalot. Judge: COTTRELL A mother left her husband after a brief marriage and moved to Arizona with their young child. The mother obtained an Arizona divorce by default in 1991. She and the child received public assistance sporadically during the ensuing years. In 2003, the State of Arizona petitioned the Tennessee court under the Uniform Interstate Family Support Act to impose an order for child support and medical insurance on the father, who had remained a Tennessee resident. After a hearing, the court ordered the father to pay prospective child support as well as retroactive child support dating back to the filing of the petition. The State appealed, contending that the trial court erred in failing to order the father to pay retroactive support from the date of divorce. We remand this case to the trial court for findings of fact and conclusions of law as are required under Tenn. Code Ann. § 36-5-101(e). http://www.tba2.org/tba_files/TCA/2005/mabalotj121405.pdf JULIE ANN NAHON v. ISAAC NAHON Court: TCA Attorneys: William E. Miller, Cordova, Tennessee, for the appellant, Isaac Nahon. Mitchel D. Moskovitz and Jason A. Creech, Memphis, Tennessee, for the appellee, Julie Ann Nahon. Judge: FARMER Plaintiff Julie Nahon (“Plaintiff”) filed for divorce from Defendant Isaac Nahon (“Defendant”). The parties later entered into a Marital Dissolution Agreement (“MDA”) whereby Defendant agreed to obtain a loan and pay off certain marital debts. Four days later, Defendant repudiated the MDA after failing to obtain his anticipated loan. Plaintiff sought to enforce the MDA as a contract. The trial court held that the MDA was a valid and enforceable contract, and subsequently incorporated the MDA into the parties’ Final Decree of Absolute Divorce. Defendant appealed. Defendant subsequently failed to adhere to the financial obligations set forth in the Permanent Parenting Plan and MDA. As a result, Plaintiff filed several contempt petitions against Defendant. The trial court eventually entered an Order on Petition for Contempt against Defendant which granted Plaintiff final and enforceable judgments against Defendant for all delinquent obligations under the Permanent Parenting Plan and MDA. Defendant now appeals both the final divorce decree and the Order on Petition for Contempt. For the reasons set forth below, we reverse in part and affirm in part. http://www.tba2.org/tba_files/TCA/2005/nahonj121405.pdf RICHARD PETERSEN, INDIVIDUALLY AND AS NATURAL PARENT OF THE MINOR CHILD, RACHEL PETERSEN, DECEASED, AND KAREN FOSMIRE, INDIVIDUALLY AND AS NATURAL PARENT AND LEGAL GUARDIAN OF RACHEL PETERSEN, DECEASED v. GENESIS LEARNING CENTERS AND THERAPEUTIC INTERVENTIONS, INC. Court: TCA Attorneys: John S. Hicks and Christy Tosh Crider, Nashville, Tennessee, for the appellant, Therapeutic Interventions, Inc. Clinton L. Kelly, Hendersonville, Tennessee, and Thomas Boyers, V, Gallatin, Tennessee, for the appellees, Richard Petersen and Karen Fosmire. Judge: KIRBY This is an action to enforce a settlement agreement. In the underlying lawsuit, the plaintiffs filed a complaint against the defendant foster care provider for the wrongful death of their daughter. The defendant had an insurance policy with “withering” limits, in which the policy limits are reduced by the amount expended in defending the lawsuit. The week before trial, counsel for the defendant sent a letter to counsel for the plaintiffs offering to settle the case for the remaining policy limits which, at the time, were $575,000. The plaintiffs asked the defendant to allow the offer to remain open for forty-eight (48) hours. The defendant agreed, but the defendant’s trial preparation continued. Two days later, the plaintiffs accepted the defendant’s offer. By that time, the policy limits had eroded to $450,000. The plaintiffs filed a motion to enforce the settlement agreement in the amount of $575,000. The trial court granted the motion. The defendant now appeals. We reverse, concluding that the parties’ correspondence does not reflect a meeting of the minds on the settlement amount. http://www.tba2.org/tba_files/TCA/2005/petersonr121405.pdf LORNA McGUIRE TOWNSEND v. JAMES ROSS TOWNSEND Court: TCA Attorneys: Terry J. Leonard, Camden, Tennessee, for Appellant James Ross Townsend. Mitchell D. Moskovitz, Memphis, Tennessee, and Jason A. Creech, Memphis, Tennessee, for Appellee Lorna Townsend. Judge: KIRBY This is a divorce and child custody case. After thirteen years of marriage, the wife filed a complaint for divorce and sought custody of the couple’s two minor children, alleging irreconcilable differences and inappropriate marital conduct. The husband admitted irreconcilable differences, but argued that the wife had committed the inappropriate marital conduct. After a lengthy trial, the trial court designated the wife as primary residential parent, ordered the husband to pay child support, divided the marital property, ordered the husband to pay the wife $70,000, awarded the wife attorney’s fees, and taxed the costs of the litigation against the husband. The husband appeals. We affirm. http://www.tba2.org/tba_files/TCA/2005/townsendl121405.pdf STATE OF TENNESSEE v. CURTIS PALMER Concurring opinion to opinion released 12-13-2005 Court: TCCA Attorneys: Mark Mesler, Memphis, Tennessee, for the appellant, Curtis Palmer. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; Phillip Gerald Harris, Assistant District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: TIPTON I concur in the results and most of the reasoning in the majority opinion. I respectfully disagree, though, with its conclusion that an oral request can suffice for the requirement in T.C.A. § 40-18-110(b), (c) that the jury instruction request must be in writing and specifically identify the lesser included offense for which instruction is sought. As I have previously concluded, though, the statute does not bar this court from considering the lack of an instruction on a lesser included offense as plain error. See State v. Roberto Vasques, et al., No. M2004- 00166-CCA-R3-CD, Davidson County, slip op. at 24 (Tenn. Crim. App. Oct. 7, 2005). However, I agree with the majority opinion’s conclusion that any error was harmless. Concurring opinion http://www.tba2.org/tba_files/TCCA/2005/palmerc_con121405.pdf   PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the instructions at the beginning of this edition of Opinion Flash. JOIN THE TENNESSEE BAR ASSOCIATION! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink. 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