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).
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Howard H. Vogel
| PATSY C. CATE v. JAMES DANIEL THOMAS
Lanis L. Karnes of Jackson, Tennessee for Appellant, James Daniel Thomas
John Van den Bosch, Jr., of Jackson, Tennessee for Appellee, Patsy C. Cate
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.
CHRISTINE V. JONES v. CULLEN A. RAY
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.
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.
DERRICK LAWRENCE, ET AL. v. TREES N TRENDS
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.
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.
STATE OF TENNESSEE, EX REL. DIANA FRANCES IRWIN v. JOSEPH MABALOT
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
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).
JULIE ANN NAHON v. ISAAC NAHON
William E. Miller, Cordova, Tennessee, for the appellant, Isaac Nahon.
Mitchel D. Moskovitz and Jason A. Creech, Memphis, Tennessee, for the appellee, Julie Ann
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.
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.
John S. Hicks and Christy Tosh Crider, Nashville, Tennessee, for the appellant, Therapeutic
Clinton L. Kelly, Hendersonville, Tennessee, and Thomas Boyers, V, Gallatin, Tennessee, for the
appellees, Richard Petersen and Karen Fosmire.
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.
LORNA McGUIRE TOWNSEND v. JAMES ROSS TOWNSEND
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.
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.
STATE OF TENNESSEE v. CURTIS PALMER
Concurring opinion to opinion released 12-13-2005
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.
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.
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