Opinion Flash

July 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.

This Issue (IN THIS ORDER):
 
03 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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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