Opinion FlashJuly 19, 2002
Volume 8 Number 124
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.
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Howard H. Vogel
THE BANK/FIRST CITIZENS BANK v. CITIZENS AND ASSOCIATES Court:TSC Attorneys: Charles W. Kite, Sevierville, Tennessee, for the appellant, Citizens and Associates. George N. McCoin and Thomas F. Bloom, Cleveland, Tennessee, for the appellee, The Bank/First Citizens Bank. Judge: BARKER First Paragraph: This case involves the application of Tennessee Code Annotated section 47-3-406 to determine who bears the loss of a bank's acceptance of forged instruments. The drawer issued three checks payable to a mortgage company and delivered these checks to a branch manager of that company for transfer to the main office. The manager, however, forged the endorsement of the company and deposited these checks into her personal bank account. In a suit to recover the funds, the trial court applied section 47-3-406 and found that both the drawer and the depository bank failed to exercise ordinary care. It then allocated the loss between the parties as eighty percent to the drawer and twenty percent to the bank. A majority of the Court of Appeals affirmed. On appeal to this Court, we hold that the bank may not assert that the drawer is precluded from asserting the forgery against it under section 47-3-406, because it did not show that any failure by the drawer to exercise ordinary care substantially contributed to the making of the forged endorsements. The judgment of the Court of Appeals is reversed. http://www.tba.org/tba_files/TSC/thebank.wpd
STATE OF TENNESSEE v. WILLIAM PIERRE TORRES Court:TSC Attorneys: William C. Talman and Susan E. Shipley, Knoxville, Tennessee, for the appellant, William Pierre Torres Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; Randall Eugene Nichols, District Attorney General; Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: The defendant, William Pierre Torres, was convicted of first degree murder by aggravated child abuse for the killing of his son, fifteen- month-old Quintyn Pierre James Wilson. Following a sentencing hearing, the jury found two aggravating circumstances: (1) "the murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older" and (2) "the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Finding that these aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death for the first degree murder conviction. The Court of Criminal Appeals affirmed both the conviction and sentence. The case was docketed and argued in this Court, and after carefully reviewing the record and the relevant legal authorities, we affirm the defendant's conviction of first degree murder. Because the trial court erred by giving the jury an instruction pursuant to Kersey v. State, 525 S.W.2d 139 (Tenn. 1975), rather than accepting the jury's report of a deadlock, the sentence of death is reversed and the case is remanded to the trial court for a new sentencing hearing at which the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life. http://www.tba.org/tba_files/TSC/torreswp.wpd
IN THE MATTER OF: OLIVER RAY VALENTINE, JR. Court:TSC Attorneys: Debra N. Brittenum, Nancy Percer Kessler, and Webb Alexander Brewer, Memphis, Tennessee, for the appellants, Chanya Wallace and Oliver Ray Valentine, Sr. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, for the appellees, CASA and Tennessee Department of Human Services. Judge: HOLDER First Paragraph: This termination of parental rights case presents two issues for review: 1) whether reversal is required on constitutional or procedural grounds because a juvenile court referee presided over the hearing as a special judge; and 2) whether clear and convincing evidence exists to support the special judge's decision to terminate parental rights. We hold that the appointment of a juvenile court referee as a special judge under Tenn. Code Ann. S 17-2-118(f)(2) does not contravene the provision in Article VI, S 4 of the Tennessee Constitution requiring that a judge be elected and that there was no procedural error in the appointment of the special judge in this case. We further hold that the grounds for termination have not been proven by clear and convincing evidence. Accordingly, we reverse the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TSC/valentineor.wpd
STATE OF TENNESSEE v. DARYL LEE MADDEN AND MARTY DALE WILLIAMS Court:TCCA Attorneys: Cynthia M. Fort (on appeal) and F. Michie Gibson, Jr. (at trial), Nashville, Tennessee, for the appellant, Daryl Lee Madden. John E. Herbison (on appeal) and Sam Wallace, Sr. (at trial), Nashville, Tennessee, for the appellant, Marty Dale Williams. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore and Sarah Carran Daughtrey, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County Grand Jury returned a three-count indictment alleging the defendants committed felony murder during the perpetration of a robbery, especially aggravated robbery, and premeditated first degree murder. A Davidson County jury convicted the defendants of felony murder, especially aggravated robbery, and second degree murder. The second degree murder was merged into the felony murder by the trial court. Madden received an effective sentence of life plus 25 years; Williams received an effective sentence of life. In this appeal, both defendants contend the evidence was insufficient to sustain their convictions for felony murder and especially aggravated robbery, and their sentences were excessive. Defendant Madden additionally contests his conviction for second degree murder and the trial court's certification of the trial transcript. After a review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/maddendl.wpd
STATE OF TENNESSEE v. JERRY O. SUMMERS Court:TCCA Attorneys: Robert H. Plummer, Jr., attorney for appellant, Jerry O. Summers. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Jerry O. Summers, appeals from the Williamson County Circuit Court's revoking his probation that was ordered for his sentence for aggravated burglary. The defendant contends that although he violated his probation, the trial court erred in sentencing him to confinement. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/summersjo.wpd
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